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Nearly Two Dozen Bullets, Casings Recovered Will Be Key in Investigation; Supreme Court Hears Case That Will Test Future of Elections; Source Says, Trump's Lawyers Hired Team to Search Four Properties for Classified Documents. Aired 10:30-11a ET

Aired December 07, 2022 - 10:30   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

JIM SCIUTTO, CNN ANCHOR: --back in 2013, just south of San Jose, which, in effect, threatened the power supply to all of Silicon Valley.

[10:30:06]

When you look at an attack like this, what kind of hallmarks do you see? What kind of group or groups could be capable of such an attack like this and doesn't have similarities to the one you saw nine years ago?

JON WELLINGHOFF, CEO, GRIDPOLICY, INC.: Well, it really does. Apparently, they did use high-powered rifles, multiple rounds into the infrastructure. It sounds like that they're going to repair it within a relatively short period of time, so they probably hit the cooling fins of the transformers to basically allow the oil to leak out, which is exactly what they did in San Jose. So, this is almost a copycat of what happened in 2013.

SCIUTTO: There was an FBI bulletin just two weeks prior to this incident, and it's chilling. It warned of attacks on infrastructure by those espousing, quote, racially or ethnically motivated violent extremist ideology and aiming, quote, to cause societal collapse and a subsequent race war in the U.S. Is the threat to infrastructure like this, electrical power infrastructure like this, in your experience, a particular threat from right-wing extremist groups?

WELLINGHOFF: Well, it certainly is. Because one thing the American public has to understand is the electric industry writes their own regulations with respect to these issues, with respect to physical security. It's the Federal Energy Regulatory Commission, that I was chair of for seven years, that actually approves those and oversees them and enforces them, but the regulations themselves are actually written by the industry.

So, we need stricter regulations. We need regulations directly written by regulators and not the industry. And we need to ensure that they have some very simple, inexpensive ways to stop these attacks from happening and that is easy to do.

SCIUTTO: We learned this morning from my colleague, John Miller, that investigators have found shell casings at multiple firing positions around this substation here, including rocks marking those fire positions, denoting some preplanning here. And his understanding was that they believed the shooters left perhaps within a minute of when law enforcement arrived there, so perhaps they didn't want to leave the shell casings behind. Is that a significant find for investigators?

WELLINGHOFF: Well, it's very significant because it mimics precisely what happened in San Jose in April of 2013. They, in fact, left very quickly prior to law enforcement coming, so it would indicate that they would have had some communication available in monitoring police channels and marking positions with rocks is exactly what we found in our investigation in San Jose as well. So, it's precisely parallel.

SCIUTTO: Interesting, remarkable, disturbing. Jon Wellinghoff, let's keep up the conversation as we learn more. Thanks so much.

WELLINGHOFF: Thank you.

ERICA HILL, CNN ANCHOR: Well, right now, the Supreme Court is hearing a case that voting rights experts say could upend election systems in the United States. Just ahead, I'll speak with the prosecuting attorney and a sheriff who are raising the alarm about the broad impact of this case. They say it goes well beyond your vote.

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[10:35:00]

HILL: Oral arguments underway right now in a Supreme Court case that will undoubtedly shape of future of elections in this country. Moore versus Harper, a test whether state legislatures can set the rules in federal elections and that they have the ability to do so without any constraints, no checks and balances from state courts or other state authorities.

SCIUTTO: Now, the assertion, the argument uses what's known as the independent state legislature theory, that some involved in attempting to overturn the 2020 election, attempted to use in making their case. If the high court goes along with that theory, it could deliver enormous expanded powers to lawmakers in battleground states to establish new rules for voting.

CNN Justice Correspondent Jessica Schneider joins us now. And, Jessica, you know better than us that listening to these or arguments can be something like tea leaf-reading in terms of how the judges indicate where they might be going. Do we have any indication yet as at least how judges are approaching this case?

JESSICA SCHNEIDER, CNN JUSTICE CORRESPONDENT: Yes. The arguments just kicking off about 30 minutes ago, so they're really just trying to get the lay of the land here.

We do know, however, that at least four of these justices, they have previously written and sort of leaned into this idea, this independent state legislature theory. Of course, it takes five justices though to win a case. The arguments, what we have heard this morning, it's really centered on what the founders intended and the history of this elections clause in the Constitution. Of course, that's the big issue here because it says the times, the places, the manner of holding elections should all be determined by state legislatures.

Republicans here are arguing that it's those state legislatures who have the final say here. Anything they decide related to election, they say, is not reviewable by state courts, is not even bound by state Constitution. So, that's a potential big leap here.

And if the Supreme Court agrees with that stance, it could really drastically expand the power that these partisan state legislatures have over the way elections are run, in addition to the way elections are run, also redistricting. That's the big issue in this case.

Plus, there are some extreme interpretations that some conservatives have argued that state legislatures could even choose presidential electors and potentially override the popular vote. That's not really an interpretation that seems to be under consideration today by the Supreme Court, but who knows what we'll see in a final opinion.

And, of course, that more extreme theory is one that was pushed by Trump supporters in late 2020, as they argued for that position that state legislatures could decide the electors in battleground states.

So, Erica and Jim, this is a case that has potential extreme consequences for the way elections are run just in the day-to-day, election procedure, absentee ballots. And if the Supreme Court does side with the Republicans here, that would really give unchecked power to state legislatures over election procedures.

So, that's what's at states here. Many court watchers are saying democracy is at stake here, if you want to take it that far, but a lot at stake as to how elections could run in the future depending on what the Supreme Court decides here. Guys?

SCIUTTO: Indeed. And there are some saying federal courts would provide a check for those state legislatures, but it's certainly an open question and many conservatives, as you know, questioning that too. Jessica Schneider, thanks so much.

HILL: Joining me now to discuss, Eli Savit, a prosecuting attorney from Michigan, and Sheriff Garry McFadden from Mecklenburg County, North Carolina. They wrote an op-ed for USA Today along with former Federal Prosecutor Miriam Krinsky addressing this very issue. And it's good to have both of you gentlemen with us this morning.

You say in that piece that Moore v. Harper is more about election law here. You say this boils down to public safety, writing, quote, if people believe they have no say in the institutions that shape their lives, they're more likely to regard those institutions as illegitimate. Eli, which institutions are you referring to there? Have you seen this directly?

ELI SAVIT, PROSECUTING ATTORNEY, WASHTENAW COUNTY: Sure. So, when we talk about institutions, we're talking about our democracy and our legal system more broadly. And the foundation of our legal system is the public's trust in its legitimacy. That derives from a couple things, right? First, it's a simple proposition that the elections reflect the will of the people and that the reason that the government is able to exercise power is because of consent of the governed, because people voted for it. And there's a second important aspect to that, too, which is that the legality of a governmental institution's actors can ultimately act upon by judges who are neutral arbiter.

Now, if this case goes a certain way, if the independent state legislature theory is vindicated, it would torpedo the safeguards. It would make the election related decisions of legislators effectively unreviewable by state court judges, cutting neutral arbiters out of the process, and it would allow politically motivated legislators to engage in extreme disenfranchisement of voters.

Now, this is a case about massive gerrymandering, right? But you mentioned an extreme interpretation of this theory could result in electors being awarded to a presidential candidate that did not win that election. And we in law enforcement know that if the legal system lacks legitimacy, we're less likely to get cooperation of witnesses, of victims and the like.

HILL: So, that point, Sheriff, I want to bring you in on that point, because that really stood out to me. From a law enforcement perspective, what it could mean for you in terms of, you know, not only your day-to-day job, but how you're interacting with the community and how they may interact with you and with the legal system?

SHERIFF GARRY MCFADDEN, MECKLENBURG COUNTY, NORTH CAROLINA: Well, thank you so very much. And it's funny that I have just been sworn in for my second term this morning as the sheriff for Mecklenburg County. But this is my 41st year in law enforcement. So, I'm speaking from what I believe is great experience.

Every time we talk about law enforcement and community, the number one thing that we talk about is building trust, building trust with the community, making sure that law enforcement and the community bridge this gap. The trust that this would bring, if taken on and made of law, it will still erode the trust that we have been creating and building all of these years. Because we need prosecutors and law enforcement need great witnesses, we need good victims, we need people to come and testify in court.

Our community at this point does not trust law enforcement that well. And so what we're trying to say, let us continue to build these bridges, but something like this makes people believe something is fishy.

HILL: Sheriff, what's the reaction -- so what's the reaction then locally there in Mecklenburg County to this piece that you wrote?

[10:45:03]

Because -- and even The Wall Street Journal editorial board this morning saying, there's a lot of panicked overreaction happening here. What was the response to your piece?

MCFADDEN: Well, we are concerned. We are concerned. I live in Charlotte, North Carolina, in the state of North Carolina, and know most of these sheriffs, including the sheriffs that we've been talking about with the power outage. But I also know the person's name, Mr. Moore, who's on this bill. So, I have to look at it protecting my citizens, protecting the state and being vigilant and speaking out.

And this is something that kind of went under the radar when I have to be the watchful eye for my community and citizens. So, the reaction is, this is not good. This is going to erode what we have been trying to build for years. People are going to be in a panic. People do not trust the legal system as it stands.

HILL: It's such important perspective. Eli, what stood out to me, as I understand it, you clerked for Justice Ginsburg. There's been so much talk recently about this erosion of public trust in the Supreme Court. They shouldn't be obviously ruling on public opinion, they should be ruling on the law. But just based on your experience, your time there, I'm curious, do you think they read this op-ed that you co-wrote?

SAVIT: Well, I don't know whether any individual justices read the op-ed, what they read on a day-to-day basis, but I do know that there have been numerous legal briefs filed, which have raised these alarm bells, which have raised the prospect of a crisis of legitimacy in our legal system and in our democracy.

And, again, you know, legitimacy and trust is all that we have. It's why the judicial system is able to function. It's why we're able to do our jobs as law enforcement. So, you know, whether they read the op-ed or not, I'm confident that the arguments that have been raised and many of the briefs have placed this front and center. And I'm hopeful that the justices will pay quite close attention to it because this is a major case, it's a major issue.

HILL: Eli Savit, Sheriff Garry McFadden, I really appreciate you both taking the time to join us today. Thank you.

MCFADDEN: Thank you.

SAVIT: Thank you so much.

SCIUTTO: Overseas now, China says it is laying out its plans to soften its zero-COVID policy. Those are the strict rules that led to rare protests in that country. Experts do worry that lifting them could lead to a surge in new infections and also questioning just how far China is actually going.

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SCIUTTO: This just in to CNN. Lawyers for former President Trump have hired a team to search four of his properties for any potentially remaining classified materials, in addition, of course, those found at his Mar-a-Lago estate.

HILL: CNN Senior Justice Correspondent Evan Perez, he spoke with a source familiar with this matter. So, four other properties, what else are we talking about? I'm guessing maybe Bedminster?

EVAN PEREZ, CNN SENIOR JUSTICE CORRESPONDENT: Yes. We know at least Bedminster was one of the properties that was being searched by the Trump team. They hired an outside team to do this, Jim and Erica.

And, you know, sources telling Kaitlan Collins that, you know, they made this offer to the Justice Department, to the FBI, to observe the search, because the Justice Department has been repeatedly coming back to the Trump team and telling them that they believe that there are still classified documents, government documents that have not been returned to the federal government, despite the FBI's search at Mar-a- Lago back in August.

And so this was an idea that the Trump lawyers had come up with as a way to try to at least show the judge here in Washington, who had issued that subpoena for those documents to be brought back, to satisfy that judge, to say, we have done everything we can to return these documents, because the government says that they still do not have everything back.

It appears that they made this offer. The source is telling Kaitlan Collins from the Justice Department, and the Justice Department declined to participate.

Now, of course, as you guys know, it would be highly unusual for the FBI to come in and observe a private legal team doing a search like this. They participated in law enforcement searches, of course, in their own, but it would be very unusual for them to participate in a search that was being done by the legal team.

We don't know what the resolution of this will be because, again, the government believes that there are still documents that are missing, despite the hundreds that the FBI brought back from that search in August.

HILL: And, Evan --

SCIUTTO: So, Evan -- sorry, go ahead.

HILL: Go ahead, Jim.

SCIUTTO: We may have the same question. I mean, if they find other classified documents in these properties, is there potential criminal exposure for the former president?

PEREZ: There is potential criminal exposure right now because the government believes that not all documents were returned. And, of course, Jim, you know, that the first subpoena, the subpoena was for all documents marked classified. And then weeks later, the FBI went to Mar-a-Lago and found hundreds of such documents. So, on its face, the former president already has legal jeopardy because he was disobeying a grand jury subpoena. HILL: And really quickly, Evan, just clarifying here. So, they have hired this team to search for properties.

[10:55:01]

Have those searches taken place?

PEREZ: We don't know the status. We know that they at least were doing the Bedminster. We don't know whether other properties, what other properties and whether those properties have already been searched.

SCIUTTO: Evan Perez, we'll be continuing to follow that story. Thanks so much.

PEREZ: Thanks.

SCIUTTO: Quick note, TIME announced its Person of the Year this morning, and it is Ukrainian President Volodymyr Zelenskyy, and what TIME calls the spirit of Ukrainian. The announcement -- TIME made the announcement on Twitter with that front cover photo you see there.

Zelenskyy follows Elon Musk, who last year's Person of the Year. Interestingly, Russian President Vladimir Putin was Person of the Year, 2007, that, of course, before he invaded several countries.

HILL: Yes. Thanks so much for joining us today on CNN Newsroom. I'm Erica Hill.

SCIUTTO: And I'm Jim Sciutto.

At This Hour with Kate Bolduan starts right after a short break.

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