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Georgia School Shooting Investigation; Trump Election Subversion Hearing. Aired 11-11:30a ET

Aired September 05, 2024 - 11:00   ET

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

[11:00:02]

PAULA REID, CNN CHIEF LEGAL AFFAIRS CORRESPONDENT: Wolf, if it is getting heated inside this federal courthouse. This is a much more combative hearing than what my sources anticipated would be the case today, the judge rebuffing multiple arguments made by the Trump legal team.

Look, the Trump legal team walked in today with two goals. The first is to try to delay anything substantive in this case until after the November election. If Trump is reelected, they know this case will likely be dismissed.

Now, their second goal is to try to gut this case and get it tossed out by arguing that the Supreme Court's recent opinion presidential immunity means that key pieces of evidence, like conversations he had with then-Vice President Mike Pence, should be tossed, but the judge here making it clear she does not see things their way.

They even suggested that she should just toss the indictment completely. And she said, look, that is not what I'm going to do here. And she's really pressing the Trump lawyers on why they are seeking this extended timeline, why they can't do things in a more consolidated manner.

But one thing she's made crystal clear here, Wolf, is that she rejects any suggestion that the timing of the election should play a part in how this case proceeds. So it continues, but definitely a pretty intense hearing so far.

WOLF BLITZER, CNN HOST: Very intense, indeed. I suspect it's going to stay that way for some time.

Paula, stay with us.

I also want to bring in CNN senior legal analyst Elie Honig, CNN legal analyst and former federal prosecutor Karen Agnifilo, and former Trump impeachment attorney Mike van der Veen.

To all of you, thanks very much for joining us.

Eli, it's been pretty lively so far in that courtroom based on everything we're seeing and hearing.

ELIE HONIG, CNN SENIOR LEGAL ANALYST: A lot developing.

So the first part of the hearing dealt with the immunity issues that Paula laid out. Now they have turned to a separate legal question, which is whether Jack Smith was properly appointed constitutionally as special counsel.

Now, you may remember, back in July, the court in the other case, the Florida court, threw out the classified documents case because the judge there said the appointment of Jack Smith as special counsel was unconstitutional.

Now Trump's lawyers are taking that to this court in D.C. saying, see, the whole thing's unconstitutional. It's clear Judge Chutkan is not buying that. She has correctly pointed out that a D.C. Court of Appeals considered and rejected the same argument in the Mueller case.

So she's essentially saying, why shouldn't I just reject that out of hand? Trump's team is saying, well, there's been some new developments. Judge Chutkan is not buying that. That argument to throw out Jack Smith is not going to succeed in this court.

BLITZER: And it's interesting, guys. So we're taking a look at what we're getting from our reporters inside the courtroom.

The prosecutor just said Trump's attorney could have filed on the issue of Smith's appointment earlier, but didn't. The attorney, Thomas Windom, the prosecutor, saying they knew about the issue. They had the opportunity to file before, but they didn't.

HONIG: The prosecutors are calling out a little bit of gamesmanship here by Trump's team, because, remember, there's two cases. There's this case, which is in D.C. we have a hearing now, and then the Florida case.

And what Trump's team did is they brought the argument that special counsel was unconstitutional only to the Florida judge, Judge Cannon, and not to this judge until now. And so this judge is saying, why would you only bring it to her, the other judge in Florida? You have had -- they have had nearly a year to bring this case to D.C.

So Judge Chutkan is not impressed by that.

BLITZER: Yes, the prosecutor argues Trump should have filed his challenge earlier. They're making a very strong case for that. They are suggesting somehow that a lone justice's concurrence has somehow reopened the issue of Smith's appointment.

That's from the prosecutor, Thomas Windom. And one of the arguments that they're making, the Trump lawyers are making, is that Jack Smith wasn't formally confirmed by the Senate.

HONIG: Right, so the gist of the argument that Trump's team has made, and other people have made this argument unsuccessfully before, is, if you are going to have an outside prosecutor brought in, that person either needs to be nominated by the president, confirmed by the Senate, or Congress needs to pass a specific law saying, we hereby create the position of special counsel.

The problem with that argument, and the reason it has almost always failed, is there are several laws that Congress passed that very broadly give the attorney general the power to delegate his or her authority, to assign other prosecutors.

And so other courts, including the Court of Appeals here in D.C., which is binding on Judge Chutkan, have rejected that argument. They have said there's more than enough basis.

BLITZER: Let me bring in Karen, our legal analyst, into this conversation.

What do you think about this new development? It's not a new development, the Trump lawyers appealing, saying that Jack Smith's confirm -- Jack Smith should not be allowed to be special counsel because that's not appropriate.

KAREN FRIEDMAN AGNIFILO, CNN LEGAL ANALYST: That's not surprising given Justice Thomas' concurrence in this immunity decision, where he called into question the propriety of appointing a special counsel.

If you recall, Judge Cannon, in the Mar-a-Lago documents case in Florida, took that concurring opinion and ruled that the appointment of Jack Smith as a special prosecutor in that case was improper, and then dismissed that entire indictment on those grounds. So it's not surprising that John Lauro, Trump's attorney, would want to raise that here.

[11:05:04]

But what Judge Chutkan is saying in response to this is, sure, you can file that motion, but when you do, I want you to not just talk about the law down in Mar-a-Lago in Florida that does not bind me, but talk about the D.C. Circuit precedent as well that does control here and that does say that the appointment of a special counsel is appropriate.

But that's a threshold question that they want her to decide, in addition to the threshold question of whether or not Trump can be prosecuted and whether he's immune.

BLITZER: And correct me if I'm wrong, Karen, but based on everything we have heard from Judge Chutkan, at least so far, she seems to agree with the prosecution that Jack Smith is appropriate, appropriately the special counsel.

FRIEDMAN AGNIFILO: Well, he's certainly not the first special counsel ever appointed, right? I mean, in fact, Hunter Biden is being prosecuted, the trial starting right now as we speak, by another special prosecutor that's been appointed. And...

BLITZER: Karen, hold on one second. I just want to point out what has just happened.

Trump -- the prosecutor, Thomas Windom, again says it would be prudent for the judge to decide immunity issues first. She could then decide whether to dismiss the case.

But go ahead.

FRIEDMAN AGNIFILO: Yes, exactly. So there is case law that specifically talks about how threshold questions like immunity should be decided at the earliest possible time, because if somebody is not to be prosecuted because they are immune, that has to be decided first.

And then, after that, I think they would decide this issue of whether or not the special counsel was appropriately appointed here. But as I was saying, this is not the first special counsel that's ever been appointed.

In fact, this goes back decades, back to the '90s, where independent counsel and special counsel were appointed and have been appointed by numerous Justice Departments to investigate cases and prosecute them, if necessary, where there might be a conflict of interest, Mueller being also another recent one.

BLITZER: And, Elie, I just want you to explain to our viewers, when I started reporting from the White House many years ago, there were independent counsels. Now there are special counsels. What's the difference?

HONIG: Exactly right.

So we had a law on the books, a federal law, from 1978 to 1999 creating the position of independent counsel, and we had a good number of them. The most famous or infamous one of those was Ken Starr. In 1999, that law lapsed. It had a legislative sunset. There was such backlash over the Clinton impeachment that Congress just said, let's let it die.

In its place in 1999 arose the current set of special counsel regulations. Under those regulations, we have seen Robert Mueller, Jack Smith, Robert Hur, David Weiss, as Karen noted, who's prosecuting Hunter Biden right now.

And the challenges, well, regulations -- legal challenge is, regulations aren't enough. There has to be a specific law. But as Karen said, every judge to consider this so far, except for Judge Cannon, has said, no, it's OK, the regulations are justified, they are supported by the general powers of the attorney general.

So this is a heavy longshot argument that Trump is making. He made it successfully to Judge Cannon. I think she's going to get reversed. I think that classified documents case is going to get reinstated because of this. And as Judge Chutkan notes, the heavy weight of the legal authority is against Trump on this point.

BLITZER: So, legally speaking, the independent counsel and the special counsel, they're basically the same thing?

HONIG: Yes, I mean, the difference is the independent counsel had a very specific law that said there is this job called independent counsel. Congress has not passed the law, but the regulations now do that, yes.

BLITZER: Judge Chutkan says that the immunity is the lynchpin here. She's moving very quickly on this front.

HONIG: Yes.

So immunity is really sort of the main purpose of what we're dealing with here. And there's a question.

BLITZER: The Supreme Court decision.

HONIG: Right.

So this goes back to the Supreme Court decision that came out two months ago that said a president is broadly immune for official acts. And now what Judge Chutkan is doing is working with the parties saying, well, how are we going to go through the revised indictment, the slimmed-down indictment that we saw last week and decide what's in and what's out?

And Trump's team is saying, well, let's hold on. Let's not even start that until after the election in December. The prosecutors -- and it seems like the judge is on board with this -- says, well, let's start the process of arguing that immunity issue and briefing it as soon as possible.

Prosecutors want to start putting their evidence into the record. But Trump's team, of course, as always, wants to slam on the brakes.

BLITZER: I want to bring in Michael van der Veen, the former Trump impeachment attorney.

How do you see all of this unfolding right now, Mike?

MICHAEL VAN DER VEEN, FORMER TRUMP ATTORNEY: Well, it's interesting, because I think the Trump lawyers thought that they were going to have a better day than it's been going so far. They're good lawyers. But I think that they thought their arguments were stronger going in.

And I think they thought that, after Florida, they would have people on their heels. And, certainly, after the Supreme Court case, they thought they were really sitting in the catbird's seat.

[11:10:00]

But when you really start looking at the nitty-gritty of it, first the Supreme Court decision, private acts aren't going to be covered. And there are buckets of information that can go into official acts, private acts, and then presumptively immune acts.

So, they thought that that would be a pretty easy thing to do. It's not going to be. And they don't want to see the facts coming out of the secret transcript from the grand jury. So now they're going to have to deal with -- and I think they thought they'd have a lot better of an argument today with the backup of the Florida court. But, of course, the D.C. Circuit court is much more in line with, I

think, what the rulings have been.

BLITZER: Interesting.

Judge Chutkan, by the way, just pushes John Lauro, the Trump attorney, over his repeated assertion that defense attorneys are now dealing with a new indictment. There's a lot of drama unfolding inside this federal courtroom right now.

We're going to have much more coming up. Paula, Elie, Karen, and Michael will be staying with us. We will continue to monitor the flurry of headlines coming out of the courtroom. A lot's at stake right now.

We will be right back.

(COMMERCIAL BREAK)

[11:16:00]

BLITZER: And welcome back to our special coverage.

We're following the first, the first hearing in Trump's federal election subversion case since prosecutors revised their initial indictment.

On the left of your screen, you will see what each side is arguing. This is coming directly from our reporters inside the courtroom. No cameras are allowed in this federal courtroom. As a result, we're getting this information directly from our reporters who are watching, taking notes and reporting to us.

Let's see what the prosecutor, Thomas Windom, just said.Prosecutors do not expect to make any immunity based discovery disclosures -- quote -- "We have nothing further to provide in discovery," the prosecutor says.

Elie Honig, explain in English what that means.

HONIG: So, discovery is the process where prosecutors have to turn over their evidence to the defense lawyers.

Now, in this case prosecutors have already turned over millions of pages of discovery, over 10 million pages. Trump's team has said, OK, now we have this new indictment that just dropped last week. So we, the defense, we're entitled to more discovery. Prosecution, you have to now give us more discovery, more evidence, more documents. And

what the prosecutor is saying here is, no, we have already given you everything that's relevant. In fact, I think what they're arguing is, the new indictment is basically just a subset of what was already in the first indictment.

BLITZER: And the superseding indictment, the new indictment, why did they have to do that? HONIG: Because they have to conform with the Supreme Court's ruling.

So just to get the timeline here, a year ago, summer of 2023, Jack Smith indicted Trump relating to the 2020 election, a very broad indictment.

But after that, a couple months ago, the Supreme Court said, no, much of this indictment is now covered by immunity, meaning much of this indictment now has to come out, including, for example, Trump's conversations with the Justice Department.

And so Jack Smith, responding to that last week, came back with a slimmed-down indictment. It keeps the same charges in place. But it takes out some of the evidence, including, for example, Trump's interactions with the Justice Department. So that's how we landed here.

BLITZER: Paula Reid, our chief legal affairs correspondent, is there outside the courthouse for us.

Paula, there are basically two issues that are being debated right now inside, right?

REID: Well, Wolf, this hearing has actually just wrapped up.

And here's what we have learned during this hearing. The first thing is that the judge is not in a place to set a trial date. It's way too soon. There's too many outstanding issues. Now, this was a much more combative hearing that I think what we expected going into today, particularly the exchanges between Judge Tanya Chutkan and defense attorneys for former President Trump, for really rebuffing many of the arguments that they were trying to make on behalf of their client.

But the one area of agreement is that the first issue that the judge needs to address is this question of immunity. So she needs to take the Supreme Court's opinion from July and apply it to the facts of this case. That is the first order of business. All parties agree.

But then there are a lot of other outstanding issues, for example, the question...

BLITZER: I want to interrupt for a second. Paula, hold up. Hold on for a second, because she's talking about this very, very key issue of immunity. The U.S. Supreme Court said that, if a president is being charged with something and he was doing it while being president of the United States, potentially, there's immunity.

And both parties are agreeing right now that Judge Chutkan says that she's going to deal with this issue right now. But both sides say they understand what she's doing.

It doesn't look like there's a huge debate on that issue.

HONIG: Yes.

So this relates to the setting of a trial date. And I actually was surprised when I saw our update saying Judge Chutkan will now turn to the question of a trial date. She can't set a trial date because Donald Trump gets to appeal this whole immunity determination that you were just talking about before there's a trial.

And then the next update said Judge Chutkan said that would be futile to set a trial date now. And both sides agree. You cannot set a trial date now. They still have to go through the appellate process. And I think everyone, judge and both parties, agrees a trial date is well down the line.

BLITZER: Because when she said, we have to set a trial date, that's suggested to me, well, maybe things are moving more quickly than we assumed.

HONIG: Yes, I did a double take there. I said, how is she going to set a trial date when they still have to go through these appeals?

But I think she was just raising it to make sure the parties agreed, this is not the time to set a trial date. There is not a trial date. There will not be a trial date until at least after these appeals.

[11:20:03]

BLITZER: So, Paula Reid, you're there for us.

They have now adjourned this session. So what happens next?

REID: OK. So we're going to wait for the judge to issue her schedule.

It was a possibility that she could give some sort of scheduling dates today, but she needs to take some time to review what she heard today and decide the path forward. She's made it clear that the first issue is going to be immunity. So she's asked to decide how she wants to proceed with that. Then there are going to be these other questions of, how does the Supreme Court's decision about obstruction of justice related to January 6, how does that apply here?

She knows that the defense attorneys are going to try to litigate the legitimacy of the special counsel, but it does not appear that she's going to give a lot of weight to that argument. And then there are also these outstanding questions of discovery.

So, right now, we're going to start waiting to see what Judge Tanya Chutkan says in terms of next steps. But it's clear, look, she's not going to completely concede to the defense and the way they want to proceed here, but it's really unclear how she's going to lay out this calendar. The number one goal, though, for the Trump team heading into today was to just try to delay any sort of substantive hearings until after the November election.

It appears that that is probably how it's going to play out.

BLITZER: The hearing has adjourned, at least for this day.

So, Paula, Elie, Karen, and Mike, thanks to all of you.

There's other very important news we're following this hour as well, including new details we're getting in about the 14-year-old suspect in the Georgia school shooting and the agonizing moments for parents. One mother was on the phone with her daughter during the shooting.

(BEGIN VIDEO CLIP)

TABITHA BOWLING, MOTHER: I told her to just run in the classroom and hide in the corner, just be quiet. At that time, I heard five gunshots and then the phone went dead.

(END VIDEO CLIP)

(COMMERCIAL BREAK)

[11:26:25]

BLITZER: Judge Tanya Chutkan has just adjourned today's hearing in a federal courtroom here in Washington on the federal subversion case against Donald Trump.

CNN's senior crime justice reporter, Katelyn Polantz, was inside the courtroom throughout this entire process this morning.

Give us a little flavor of what was going on inside. We saw your reporting and we were putting it on the left part of our screen during the course of this hearing.

KATELYN POLANTZ, CNN SENIOR CRIME AND JUSTICE REPORTER: Yes, Wolf, there were a couple things to note here.

The first is that moment where Judge Tanya Chutkan jumped in. There was a spicy banter going on between her and Donald Trump's attorney, John Lauro, about how long it should take for everyone to get together all of the evidence, the briefing, the legal arguments to talk about presidential immunity.

Trump's team obviously wanted to slow things down. They were going back and forth very quickly in the courtroom, so much so that the court reporter had to say, hold on, you're talking over one another, Judge and defense attorney.

And then John Lauro said, you know there's a very sensitive time in our nation's history, and that's when you could see he lost the judge. Judge Tanya Chutkan sat back in her chair, she sighed, and then she put a finger up, stopped the banter, took a pause and said, let's discuss what the sensitive time is here. The election is not relevant to the timeline.

And that just put a different flavor across the courtroom of the discussions about timing here. And she pulled it back to say, we're going to talk about what's actually needed, what I can do here, and how to move this forward. She didn't put a trial date on the calendar, and she didn't put a timeline down yet.

She does say she is going to set one up for later today, hopefully, if she can put that out. But what the subtext here, she didn't want that, this is not about the presidential election, Donald Trump running for presidency, and whether or not the Justice Department is able to put forward evidence before November.

The other thing I want to point out here, Wolf, is, there was a lightness to this proceeding. Nobody has been in this courtroom before Judge Chutkan since last October. And even Jack Smith, we haven't seen him in a courtroom for some time. He was there today. His beard is a lot longer than the last time I remember seeing him.

Judge Chutkan, her hair, it's lighter. And even at the beginning of this proceeding, she said everybody looks rested, and there was laughter across the courtroom.

BLITZER: Well, she did underscore what we all know about Judge Chutkan. She is tough. She is very, very smart. And she does not want any really unserious business to emerge during the course of this trial.

Katelyn Polantz, excellent work, as usual. Thank you very, very much.

I want to turn to some other important news we're following right now, a developing story. A community is shattered and grieving today, and questions are mounting after yet another senseless school shooting here in the United States, this time in Georgia.

Four people were killed at the Apalachee High School in the city of Winder, including two teachers and two 14-year-old students. We're learning that law enforcement last year questioned the actual suspect, a 14-year-old student at the school, about online threats to commit a school shooting.

Students are now describing the terror they faced as a gunman walked their halls.

(BEGIN VIDEO CLIP)

LAILA FOHRMAN, STUDENT: I was scared I was going to die, to be honest. And when I heard hard lockdown, I knew it wasn't a drill.

I just kept my feet up and I prayed. And I closed my eyes and I tried to stay calm and -- but I was shaking. I was worried that they would hear me.