Return to Transcripts main page

CNN Newsroom

Now, First Trump Election Interference Hearing Since Immunity Ruling; Trump Admits He Lost 2020 Election By a Whisker; Judge Chutkan Focusing on the Issue of Immunity in Back-and-Forth With Lawyers. Aired 10-10:30a ET

Aired September 05, 2024 - 10:00   ET

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

(COMMERCIAL BREAK)

[10:00:00]

JIM ACOSTA, CNN ANCHOR: Good morning. You are live in the CNN newsroom. I'm Jim Acosta in Washington.

Moments from now, Special Counsel Jack Smith and lawyers for Donald Trump will be back in court as a key hearing in Trump's federal election subversion case gets underway. It's the first since prosecutors revised their indictment last week following the Supreme Court's landmark ruling on presidential immunity earlier this year.

On the left side of your screen, you will see what's happening in court coming from our reporters in the room.

Let's get straight to CNN Chief Legal Affairs Correspondent Paula Reed. She's outside the courthouse for us. Paula, what are we expecting?

PAULA REID, CNN CHIEF LEGAL AFFAIRS CORRESPONDENT: Oh, good morning, Jim. Today is all about how to move forward in this case after the Supreme Court issued an opinion that really limited what prosecutors can charge former President Trump with and which evidence they can introduce in this case.

Now, there are no cameras inside federal court, so we're relying on our team of reporters inside to provide us with updates. Also, the former president is not in attendance today. That appearance has been waived. But what we expect is that Judge Tanya Chutkan, let me tell you, Jim, she is all business, she is going to come in with a plan. She's going to have questions for defense attorneys and for prosecutors, all about scheduling and how to move forward.

Now, a source familiar with the Trump legal team strategy says they believe that a win here is really just delaying anything of substance until after the November election. Now, the special counsel, they haven't put forth their own schedule, but they also haven't agreed to that one.

So, we're going to watch very closely to see how the judge is leaning in terms of how quickly she wants to proceed. The one thing everyone seems to agree on here, though, Jim, is that there's no way this case is going to trial anytime soon.

ACOSTA: All right, Paula, stick with me and let's bring in CNN Senior Legal Analyst Ellie Honig, CNN Legal Analyst and former Prosecutor Karen Agnifilo.

Elie, what are you watching for today? I mean, one of the things that Paula said a few moments ago is that it's obvious now at this point, we're not going to get a trial before the November election, but there is the possibility that we could get some kind of evidentiary hearing, which might add some details to what we know about this case.

ELIE HONIG, CNN SENIOR LEGAL ANALYST: So, that's exactly what I'm watching for here. Judge Chutkan might well come out and say, okay, parties, we have to go through this messy process now of figuring out what parts of the new revised indictment are still okay for trial, which are not. She could say, we're going to do that on paper. You're going to write briefs, I'm going to decide, I'm going to issue a written ruling, or parties have not asked for this, but she would be within her rights to say, we're going to have a hearing, and I'm going to need to hear from certain witnesses. And that could happen, Jim, really quickly. That could happen later in September, in October.

And so, if the question is, how is this going to impact the election, which I'm sure is on everyone's mind, that's the possibility that could have an impact on the election, if we have a scenario where Mike Pence, for example, is getting on the stand, in, let's say, late September, October. Parties have not specifically asked for that, but it's within Judge Chutkan's purview.

ACOSTA: Okay, gotcha. And we should note to our viewers you can see in our side panel there, Judge Tanya Chutkan has taken the bench. The hearing is underway.

Karen, let me go to you next. The attorney general, Merrick Garland, was asked yesterday about his confidence in the special counsel, Jack Smith, ahead of this hearing, and here's what he had to say.

(BEGIN VIDEO CLIP)

MERRICK GARLAND, ATTORNEY GENERAL: I stand by the actions of the special counsel. The superseding indictment is an effort to respond to the direct instructions of the Supreme Court as to how to effectuate a new indictment in an ongoing case. The special counsel is required by the regulations to follow the policies of the Justice Department, including the election sensitivities policies, and I'm quite confident that he did so.

(END VIDEO CLIP)

ACOSTA: Yes. Karen, what do you think about all that?

KAREN FRIEDMAN AGNIFILO, CNN LEGAL ANALYST: Well, one of the things that Trump's legal team is going to do is challenge the appointment and funding of a special counsel at all. Don't forget in the Mar-a- Lago documents case, a judge down there, Judge Aileen Cannon, found that it was inappropriate and invalid to be able to appoint a special counsel.

So, they're going to be making that same argument here in front of Judge Tanya Chutkan. I don't think that is going to have any merit, but it certainly adds to the motion practice and the delays that Elie was talking about and showing that this is not going to happen anytime soon.

ACOSTA: Yes. And, Paula, I mean, you were saying a few moments ago, we're probably not going to see a trial before the November election, but do we have any kind of sense as to when one might happen?

[10:05:06]

I mean, I there's always the possibility that we could see something next year, I suppose. What do you think?

REID: Yes. Look, if Trump is reelected, former president is reelected, he will make this case and the other federal case go away. His attorney general will dismiss them. But if he's not reelected, according to the sources I've spoken with, I'm familiar with both sides thinking is look, there's no way this is going to go to trial until next fall at the earliest because there are so many outstanding questions that still need to be resolved and litigated.

I am told that a source familiar with the Trump team's thinking is that there's no way this case goes to trial without at least one more trip back to the Supreme Court, because there are a lot of questions about what evidence can be introduced in this case. While the special counsel did file a revised indictment last week, there are still pieces of evidence, including conversations that he had with the then- attorney general, Bill Barr, and Vice President Mike Pence, that the defense will argue should be tossed out under the Supreme Court's opinion.

So, I'm told, look, this case is not going to trial anytime soon next fall at the earliest, but there is likely at least one more trip back to the Supreme Court before this goes to trial, if it even survives Supreme Court review.

But, Jim, some of the color we're getting from inside the courtroom is actually pretty good. Our colleagues are reporting sort of on the rapport between the judge and the lawyers. I have been in court in this case, and I can tell you there have been some pretty intense exchanges between Judge Tanya Chutkan and the Trump defense attorneys. But as she greeted the Trump defense team, Judge Tanya Chutkan saying, quote, it's been almost a year, you look rested, to Attorney John Lauro. He joked that, quote, life was almost meaningless without seeing you. And she said, enjoy it while it lasts, perhaps signaling that this might not go the way the Trump team hopes it will.

But, look, there's no love lost between the Trump defense attorneys and the special counsel, but Judge Tanya Chutkan, she has a firm grip on her courtroom. But she's definitely had some spirit exchanges with both sides, and I think that's probably what we're going to see based on her mood this morning. ACOSTA: Yes. And the judge saying just a few moments ago, I don't intend to finalize as schedule at the hearing, adding that she hopes to do so as soon as possible, and then now she's walking through each of the counts that Trump has been charged with. What are your thoughts so far?

HONIG: So, what's happening here is called an arraignment. Now, people may remember, there's a new indictment in this case. The original indictment dropped last summer, and then last week, Jack Smith went and got what we call a superseding indictment, which essentially replaces the first indictment.

So, Trump technically has to be re-arraigned on that advised of the charges, enter his not guilty plea. Ordinarily, a defendant needs to be physically present to do that, but because this is a superseding, a second indictment, Trump was allowed to do that on paper. So, a few days ago, he put in a piece of paper saying, I've seen the indictment. I've authorized and instructed my attorneys to enter a not guilty plea. So, they're going through that the death penalty, and I'm not in favor of that formality. Now, Trump is formally entering his not guilty plea as we see right there, I guess.

ACOSTA: And the defense attorney has entered a not guilty plea on Trump's behalf to the superseding indictment.

Karen, let me go back to you because Elie was getting to a question that I have, and that is to, you know, help our viewers out here a little bit. I mean, the charges in this case are still very serious. They have been slimmed somewhat because of the ruling from the Supreme Court, but you know, there is a -- Trump is not out of the woods legally by any stretch.

AGNIFILO: That is absolutely the case. He's not out of the woods. So, the first indictment, the original indictment had four charges and the second indictment, the superseding one that Elie is talking about that Trump is being arraigned on right now, as we speak, has those same exact charges. The only thing that has been slimmed down is what is the evidence going to be to prove those charges?

And so it's all about the private conduct, the Trump as candidate, not as president. And that is what the indictment really focuses on and changes based on the Supreme Court ruling that said anything that was either core presidential duties or official conduct is not appropriate as either charges or evidence in a case, in a criminal prosecution of a former president. So, that's what Jack Smith did when he superseded this indictment. He took out any references to things where Trump would have been immune.

Now, of course, Trump and his lawyers aren't going to agree and they're going to argue, and that's what this is all about, that Jack Smith still has inappropriate evidence and charges in there. So, that's what Judge Chutkan has to sort through.

ACOSTA: Yes. And, Elie, I mean, I guess, and we should note it says Trump's attorney has confirmed that the former president has received a copy of the new indictment. But one of the things I think will be fascinating with this hearing, Elie, is whether we get any kind of indication from Judge Chutkan as to how she's going to proceed, whether she, you know, it feels as though, things need to be slowed down because of what the Supreme Court did.

[10:10:01]

Perhaps the case needs to be looked at differently because of what the Supreme Court did. What's your sense of that?

HONIG: I'm interested in her take on the new, slimmed down indictment. We saw the clip earlier where the attorney general, Merrick Garland, said what Jack Smith has tried to do here is conform his indictment to read (ph) the Supreme Court's opinion. I think that's exactly right. I think that's what Jack Smith did.

So, I want to see is Judge Chutkan and still skeptical of it, or is her point of view more along the lines of, well, now that we have this slimmed down indictment, we should be in good shape, or is she of the point of view of this indictment still needs to be trimmed down even further. That's a key thing to watch for.

ACOSTA: Interesting. All right, everyone stay with us, just ahead, more on this very key hearing and Donald Trump's federal election interference case.

Stay with us. You're in the CNN Newsroom.

(COMMERCIAL BREAK)

[10:15:00]

ACOSTA: Welcome back. We are following the first hearing in Trump's federal election subversion case since prosecutors revised their indictment in response to the Supreme Court ruling from earlier this year. My panel is back with me now and we're going to look at the side panel right here, a little update from inside the courtroom, guys. This is very interesting, Judge Chutkan saying, let's first talk about the immunity issue, the judge calling Prosecutor Thomas Windom to the lectern to discuss the issue of presidential immunity. So, they're going to dive right into this, Elie. This is very important,

HONIG: And I'm interested to see what the prosecutor says, because Jack Smith took a slightly different tone in his recent filings from what he had said previously. I mean, in the early stages of this case, Jack Smith was gung ho, let's go, let's try this thing, no need for delay. He originally asked for a trial date four months after the indictment. In his more recent filings, though, he's sort of being a little more passive, saying, well, it's up to you, court, you, judge, you can set the dates and we'll comply. We're ready to go as necessary with our briefing. But they've taken the foot off the gas a little bit. So, I want to see what he does here.

ACOSTA: And, Karen, I mean, this is interesting. The prosecutor is saying back to the judge, I don't think we're in a typical situation here. That panel that just flashed forward said the Supreme Court has made new law, and that is in reference to their decision about crimes committed, allegedly committed by a president while in office, which the Supreme Court ruled on. Can you help us break that down?

AGNIFILO: Yes. So, never before had the Supreme Court or anybody ruled on the question of whether or not a president of the United States is immune from criminal prosecution. So, it has been talked about and ruled in the civil context, but never before in a criminal context

So, that's what he's referring to when he says that the July 1st decision on presidential immunity made new law because it actually spelled out, and for the first time ever in the history of this country said, a president of the United States or a former president is absolutely immune from criminal prosecution for acts that are within their core presidential duties, and they're presumptively immune for anything within the outer perimeter of his duties, which basically means when the president is doing his job and acting as president, he is immune from criminal prosecution. However, if he was acting as a candidate or a private citizen and the acts were unofficial, that's where you can be prosecuted criminally.

ACOSTA: Yes. And it says prosecutors want a comprehensive discussion to both pled and unpled acts in order for the judge to make holistic decisions on the issue of immunity. So, obviously, this immunity issue is playing out.

And, Paula, I want to go to you because the former president has been saying a lot of things out in public recently regarding the election. Just recently, he said something about how he lost the race by a whisker, even though he keeps maintaining that there was fraud in the 2020 election. Of course, that is not true. That is bogus. And he's also said things along the lines of that he has every right to interfere in an election. I have to think both of those things are going to be very interesting to Jack Smith.

But let's play a little bit of Trump saying recently that he lost the election by a whisker. Let's talk about this.

(BEGIN VIDEO CLIP)

DONALD TRUMP (R), FORMER U.S. PRESIDENT, 2024 PRESIDENTIAL NOMINEE: I was told if I got 63 million, which is what I got the first time you would win, you can't not win. And I got millions of more votes than that and lost by a whisker.

(END VIDEO CLIP)

ACOSTA: Yes. Paula, what can you tell us about that?

REID: Well, look, clearly the former president, he's a challenging client. He says things that sometimes contradict previous statements. So, in anticipation of today's hearing, I asked sources close to his legal team whether this could impact this January 6th election subversion case. And they don't believe that those comments the other day will really impact this case. They don't believe that they will come in.

And let me expand on that a little bit more, because their argument is going to be that under the Supreme Court's recent decision, the only evidence about whether Trump knew he won or lost the election that should come in is evidence that is not related to his official acts. They believe that his former attorney general, Bill Barr, or his former vice president, Mike Pence, those discussions under the Supreme Court decision should all be tossed. And they argue that what will be left are just lawyers telling him that he did, in fact, win the election and that these newer statements, that these will not come in at trial. Look, Jack Smith may have different opinions there.

ACOSTA: And it says on our side panel there and that the prosecutor wants to see the judge set forth for the court and for the participants involved in this case, which is subject to presidential immunity and which is not, which is private actions and which is not.

[10:20:09]

What can you tell us about that, Elie?

HONIG: So, a couple of things that are developing now in the courtroom. So, first of all, the prosecution has said, we want there to be only one appeal. There's clearly going to be an appeal before trial. What the prosecution wants to avoid is a situation where Trump gets to appeal two, three times. So, the prosecutor's saying, let's be efficient, let's deal with the immunity issue, and any other issues so we can only have to go through the appeal one more time.

Another interesting thing that the prosecutor said, he said, when we submit our briefs, Judge, we're going to attach grand jury testimony, which means we're going to get to see that for the first time, if that's the way it goes, because grand jury testimony is ordinarily secret. The only way we get to see it is a situation like this, where a prosecutor attaches it to a brief.

So, if that's the way this goes, we're going to get a peek inside the grand jury, maybe learn some new things about what key witnesses have testified to.

ACOSTA: Yes. Karen, because I mean, one of the core arguments of all of this is that, yes, Donald Trump was in office when these alleged activities were going on. But while he was in office, he was acting, the prosecution would say, as a private citizen seeking reelection, acting as a candidate. A lot of this has to get parsed out.

AGNIFILO: Exactly. And that's exactly what Judge Chutkan has to figure out is what are -- when was President Trump at the time acting as President Trump and when was the acting as candidate for office/private citizen Trump? And she's going to determine whether that can be done just on the papers through briefing or whether they have to have some sort of evidentiary hearing to develop this testimony.

Now, the fact that Jack Smith's staff is saying that we want to attach grand jury testimony, I think that what they're signaling is you don't need to have an evidentiary hearing. We can give you that evidence here on papers and attach it to our papers. So, there might not be a need for a hearing to develop the facts. ACOSTA: All right. And one of the federal prosecutors has just said that they hope to have some arguments submitted to the court within the next couple of weeks, and the judge notes that that would put submission of the brief at the end of September. So, it looks like we might see some further activity in this case around the end of September, perhaps the first of the next month.

But in the meantime, you have been watching our coverage of the Trump election interference hearing since the immunity ruling from the Supreme Court. There's a lot to unpack. We'll continue to do that with other news as well.

Stay with us. We'll be right back after a quick break.

(COMMERCIAL BREAK)

[10:25:00]

ACOSTA: All right. Welcome back. You are watching continuing coverage of the Trump election interference hearing since the Supreme Court's immunity ruling that is taking place here in Washington right now, Judge Tanya Chutkan presiding over this, going back and forth with Trump's attorney in court right now.

And I want to go out to Paula Reid very quickly because, Paula, I know you have been following these updates coming out of the courtroom from our reporters who are inside doing amazing work, feeding us exactly what's going on. What's the crux of what we've been hearing so far? It sounds like a pretty lively exchange between Judge Chutkan and Trump's attorneys.

REID: Yes, it's getting a little spicy in there, Jim. I'm reading these live updates from our colleagues out here on my phone, and the Trump team got up. It's their turn and they're being -- look, they're being pretty dramatic. And we know that sometimes the defense attorneys, they need to play to an audience of one. And I say they're dramatic because some of the things that they're saying in court right now just do not match what are in their filings.

We know from the joint filing between them and prosecutors that, look, they don't agree on everything when it comes to scheduling, but they're also not that far apart. But here, the defense attorney got up and said he could not imagine a more unfair protocol than what the special counsel is suggesting going forward.

Now, the judge clearly doesn't agree with that, but the defense attorneys also argue that the Supreme Court has already decided whether prosecutors can use evidence around Vice President Mike Pence, and the judge cut him off and said, I would disagree with that.

And this is significant because this is really going to be the next area of dispute between prosecutors, defense attorneys and clearly the judge here. The judge here noting that it is up to her, the Supreme Court has given her discretion on this issue. So, it's clear this may not go exactly the way the defense attorneys hoped, but their number one goal here today, Jim, is to just delay anything of substance until after November.

ACOSTA: Yes. I mean, Paula, were Trump's attorneys expecting Judge Chutkan to just come in today and say case dismissed?

REID: Absolutely not. Look, they do believe that she is fair, but this is someone who is tough. She has a command of her courtroom, she comes in prepared, and she does like to spar a little bit, both with prosecutors, but probably more so with defense attorneys, because, again, sometimes they come in and they say things more for their client, yes.

ACOSTA: Yes. And Lauro wants Chutkan to decide whether this new indictment is legitimate. I mean, that is interesting. So, we're certainly getting some details coming in, in real time. We want to continue to go over those. Paula, forgive me for interrupting. I want to go to former Trump Impeachment Attorney Michael van der Veen. He is with us as well.

Michael, I don't know if you've been following along some of these updates coming out of the courthouse from our reporters who are inside Judge Chutkan's courtroom, but it sounds as though there's a lot to untangle here.