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Classified Documents about War in Ukraine Leaked Online; Texas Governor Greg Abbott Recommends State Parole Board Pardon Man Who Shot Black Lives Matter Protestor; Judges Make Contradictory Rulings Concerning Legality of Abortion Medication Mifepristone. How Judge Shopping Impacts Courts Across America; Strike Action; Nashville Council May Vote to Reinstate Rep. Justin Jones. Aired 8-8:30a ET.

Aired April 10, 2023 - 08:00   ET

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

[08:00:00]

KAITLAN COLLINS, CNN ANCHOR: -- the FDA should ignore the judge's ruling.

DON LEMON, CNN ANCHOR: We'll see what happens with that.

Plus, the Pentagon is trying to figure out how highly sensitive classified documents about the war in Ukraine leaked online.

POPPY HARLOW, CNN ANCHOR: And Ukrainian children held against their will for months by the Russians finally reuniting with their families. Look at those images. Their harrowing journey home ahead.

LEMON: Can't wait to see that.

But this morning, we're going to begin with the Pentagon scrambling to do damage control after highly classified documents about the war in Ukraine leaked online. Photos of the documents started appearing on social media in recent weeks. They contain sensitive intelligence, including Ukrainian troop numbers and weaknesses as they gear up for a major counteroffensive.

A source close to the Ukrainian President Volodymyr Zelenskyy telling CNN that Ukraine has already altered some of its military plans because of this leak. Another source says that the crumpled documents that look like they were shoved in somebody's pocket and removed from a secure location. The Justice Department has now launched an investigation. There is

major concern that America's intelligence sources deep inside the Russian government might be in danger or cut off because of the leak. Serious implications here.

CNN's chief law enforcement and intelligence analysts is Mr. John Miller. He joins us now, John. Good morning to you. How does it leak like this happened? What happened?

JOHN MILLER, CNN CHIEF LAW ENFORCEMENT AND INTELLIGENCE ANALYST: I mean, in the intelligence community, and I remember this when I was in the Director of National Intelligence office, you go into your morning cache in the emails and to get up to date just the way we do. There's a lot of news to catch up on in different documents. The difference is, they're all top secret, or at least secret.

This seems to be from the Joint Chiefs of Staff briefing. This is a document I used to get. And the good news about it is it was a little bit of one stop shopping. It was a place where they called together all the most relevant, most sharply pointed military intelligence that you would need to know that day.

HARLOW: The worst thing to leak. The worst thing to leak.

MILLER: Yes, for that day. And the problem is, there's all so long- term intelligence in there as well, strategic intelligence. It appears that somebody printed this and removed it and photographed it somewhere else, and then posted it.

COLLINS: What point does this become a criminal investigation? Is it --

MILLER: Immediately.

COLLINS: Is it?

MILLER: Yes.

COLLINS: With DOJ looking into this, does that mean it's a criminal investigation?

MILLER: Totally, Kaitlan, because you -- I don't know where to even begin. The minute you have a purpose for it other than it's meant for, that's a crime. The minute you remove it from the facility in an unauthorized way, that's a crime. The minute you disclose it publicly, that's a crime. There's a stack of crimes here. And people have done serious prison time for things just like this.

HARLOW: Sure. One of the points you make is that it's actually not that hard to pull this off. You just explained how. But the fact that Bellingcat, the research group, who also worked on tracking down Navalny, et cetera, they're just stunned at how this trove of documents could be online for a month, plus, and no one knows.

MILLER: That's the thing about the Internet, which is it's bottomless, its boundless, and you never do know what's out there if you dig around. The idea that there's all these deep fakes out there, I mean, you'd run into something like this and the first thing you would ask is, is it real? I think the real shocker was when people said, hey, this stuff that's floating around, it appears to be real.

COLLINS: I guess the big question for people who don't deal with classified intelligence or this kind of information is how damaging this could be, because when it comes, and as you were noting there, it's not just short term intelligence about Ukraine, but that is the most pressing one I think that people realize. It's talking about troop movements. It's talking about Ukrainian military weaknesses. It also shows just how much the U.S. has penetrated Russia's security service because they knew when they were going to strike certain drone facilities of Ukraine's. MILLER: To get these accesses for the United States intelligence

agency requires an extraordinary amount of work and sometimes risk, especially on the human side. And to have them exposed, the other side just needs to reverse engineer this, which is where was this information available? Is that the place that's compromised? Was there two or three of them? Do we shut them down now and move to other platforms? And you lose that access, let alone is there a human source at the other end of this and do we need to either figure out who that person is and killed them or imprison them, or take a guess and do the same to multiple people.

LEMON: Let me ask you before we let you go, very simply, then why? Why would someone do that? What is the goal here?

MILLER: Look at the motives of the past. The goal here isn't clear. Edward Snowden had an ideological difference with the NSA, the agency he worked for. Chelsea Manning had her feelings about the war and what people weren't seeing.

[08:05:01]

Sometimes it's straight up espionage. In this case because the person leaked a wide array of information, it's hard to pinpoint the motive.

LEMON: All right, John Miller, pleasure as always, thank you so much.

MILLER: Thanks.

COLLINS: Just remarkable.

Also this morning, Texas Governor Greg Abbott says that he is asking the state's parole board to recommend a pardon for Daniel Perry. You'll remember Perry is the Army surgeon who was just convicted of the murder on Friday of killing a protester during a Black Lives Matter demonstration in 2020 Abbott then tweeted subsequently on Saturday and said, "I'm working as swiftly as Texas law allows regarding the pardon of Sergeant Perry."

CNN's Ed Lavandera joins us live from Dallas said. Ed, I know that we have heard from the victim's family after the conviction came down now. Now what are they saying after Governor Abbott put out this statement?

ED LAVANDERA, CNN SENIOR NATIONAL CORRESPONDENT: Well, it's a stunning development in the aftermath of the testimony phase and in this trial. And the prosecutor in Austin is saying that the governor's intervention in this case at this point is, quote, deeply troubling.

(BEGIN VIDEO CLIP)

LAVANDERA: An Austin jury convicted Daniel Perry on Friday for the murder of Garrett Foster. The Army sergeant broke down after hearing the verdict. Perry shot and killed Foster during a Black Lives Matter protest in the summer of 2020. After the trial, Foster's family expressed their relief. STEPHEN FOSTER, VICTIM'S FATHER: We're happy with the verdict. We're

very sorry for his family as well. Just there's no winners in this, and I'm just glad it's over.

LAVANDERA: But this case is far from over. The very next day, Texas Governor Greg Abbott tweeted his vow to pardon Perry as quickly as possible and argued, "Texas has one of the strongest standard ground laws of self-defense that cannot be nullified by a jury or a progressive district attorney." In the weeks after the murder of George Floyd, Black Lives Matter protests erupted all over the country. Garrett Foster joined the protests in Austin.

UNIDENTIFIED MALE: They don't let us march in the streets anymore, so we've got to practice some of our rights.

LAVANDERA: Daniel Perry was a rideshare driver and had just dropped off a customer near a BLM protest on the downtown streets. Prosecutors said Perry ran a red light to turn into the crowd.

This is where accounts differ. At the time, some witnesses say Perry deliberately instigated the altercation.

JAMES SASINOWSKI, WITNESS: The driver intentionally and aggressively accelerated their vehicle into a crowd of people. That is extremely clear.

LAVANDERA: The lead investigator testified that video showed Perry did not accelerate but slowed down. Perry says Garrett Foster was carrying an assault style rifle, which he was legally allowed to do, and pointed the gun at him. Perry fired his handgun several times at Foster killing him. Perry's lawyers call it self-defense.

But in the trial, prosecutors pointed to texts and social media posts Daniel Perry made that summer that suggested Perry was looking for a fight. In one, Perry wrote he might "kill a few people on my way to work. They are rioting outside my apartment complex." Someone wrote back, "Can you legally do so?" Perry responded, "If they attack me or try to pull me out of my car, then yes."

The Texas jury didn't buy the self-defense argument and issued a guilty verdict on the murder charge. Perry's lawyer says they're disappointed and will appeal.

(END VIDEO TAPE)

LAVANDERA: And Kaitlan, Daniel Perry's cases has really become a cause among some in rightwing media. In fact, FOX News host Tucker Carlson was talking about the case Friday night, urging the governor of Texas to issue him a pardon and saying that people in Texas no longer have the right to self-defense because of this case. And it's interesting, about 24 hours after Tucker Carlson's words on FOX News Friday night is when the governor of Texas made that announcement via Twitter.

COLLINS: Yes, and we'll see what the state parole board decides. Ed Lavandera, thank you. HARLOW: It is the most consequential abortion decision since the

Supreme Court overturned Roe versus Wade last year. A federal judge in Texas on Friday suspending the FDA's approval of the medication abortion pill mifepristone. Less than an hour later, a federal judge in Washington state issued a contradictory ruling. So this all means of fast track, most likely, to the Supreme Court.

Let's bring in Steve Vladeck, CNN legal analyst and Constitutional Law professor at the University of Texas Law School. It's great to have you. The question now, this is going to go to the Supreme Court, right? But, I was just going to ask you can the fact -- Joan brought up the fact that the Dobbs decision overturning Roe versus Wade said this is up to the states.

[08:10:01]

So doesn't that make it hard for the Supreme Court to uphold what this Texas judge just did even if they wanted to?

STEVE VLADECK, PROFESSOR OF LAW, UNIVERSITY OF TEXAS SCHOOL OF LAW: It really does Poppy. And I think it's not just hard for the court to uphold what Judge Kacsmaryk ruled on Friday. We might this week not be talking so much about the merits of Judge Kacsmaryk's ruling but whether it should be frozen while the appeals courts, the Fifth Circuit in New Orleans and the Supreme Court have time to decide whether it should be upheld.

And that's the critical thing that folks should be watching for today. Are we going to see the Justice Department, are we going to see Danco Laboratories, one of the sponsors of mifepristone, ask the Fifth Circuit to put Judge Kacsmaryk's ruling on hold, and, Poppy, to do it by, say, tomorrow or Wednesday, so that if they don't get that kind of stay from the fifth circuit there at the Supreme Court by Wednesday or Thursday, with this ruling set to go into effect otherwise at midnight Friday night.

HARLOW: I'm just fascinated by all of this, and the Fifth Circuit could be very challenging for them. But you're saying that the Supreme Court could get in really, really fast.

VLADECK: Yes, and I think the problem here, and this is something that's a technical point, but it's one that's really important to stress, at this stage he question is not whether Judge Kacsmaryk was right.

HARLOW: Right.

VLADECK: The question is, should his ruling be allowed to go into effect while the courts figure out whether he was right. And that analysis, Poppy, includes not just the substance of his rule in but who's going to be harmed? What are the balance of the equities? That's the language the courts usually used. Is it better to keep this ruling on hold to keep mifepristone legally approved for the duration of these appeals, or are we going to see an attempt to actually have the rule and go into effect by Saturday, at which point it would be illegal for Danco Laboratories to distribute mifepristone, at which point we could see overnight pharmacists, doctors, et cetera, very reluctant to prescribe and dispense mifepristone.

Those are the stakes here, and that's why I think the real story this week is going to be asking the Fifth Circuit first day, and if they don't comply, going back to the Supreme Court and saying, hey, you guys said you were going to leave the question of abortion access up to the states. Here is a single federal judge in Amarillo, Texas, making nationwide policy. Are you really going to allow that to happen?

LEMON: Steve, you touched on it, but I'd like you to elaborate a little more, because in the meantime, life goes on for people. People are living their lives and they have to do what they have to do. So what happens in the meantime as all of this is rolling through, and who is going to do it, the Supreme Court, what have you -- what happens in the meantime? Providers are confused and could face very dire consequences.

VLADECK: Yes, I think the critical point is nothing has changed today. So the law is today what it was on Thursday. And so if you are a medical professional, if you're a pharmacist, if you are a person seeking or on mifepristone, nothing has changed to your interests, your rights. The real question is what happens on Saturday, and that's why people like me, that's why the Justice Department, everyone's eyes are on the federal appeals court in New Orleans and then the Supreme Court to see are they going to preserve the status quo, or are we going to get to Saturday and actually have a whole lot of people who all of a sudden are really unsure about what is and is not legal with what you know is the most common method of abortion in the United States, mifepristone is part of this two drug protocol.

COLLINS: Well, Steve, can we talk about this? Because judge shopping, this is something we've been talking about. We talked about it with Trump's attorneys last week. But in this case, they knew where they were filing. There was a 100 percent chance it was going to go to this judge who has a very clear history based on the boards that he sat on previously, his other rulings, of where he was going to go down on this.

VLADECK: Yes, this is a phenomenon that we've actually seen play out a lot over the last couple of years. But this is perhaps the most glaring example of it to date. The plaintiff in this lawsuit, the so called Alliance for Hippocratic Medicine is this shadowy organization that was established only after the Supreme Court's decision last June in Dobbs, and it was established in Amarillo entirely so that this lawsuit could be brought in Amarillo, where it had a 100 percent chance of being assigned to this judge who has, as you said, this history of anti-abortion advocacy before he joined the federal bench.

This is not the first time we've seen that. We've seen the state of Texas take a similar tact in its 30 some odd lawsuits challenging the Biden administration. I think we should hopefully all be able to agree that whatever you think of the merits of these rulings, there's something unseemly about these kinds of ideological groups being able to look at a nationwide policy like the approval of mifepristone and look at the federal bench and find the one judge among the 800, 900 federal judges in the country who is most likely to side with them. That's not how our system is supposed to work. And I think that calling out for some kind of reform from Congress not because of this case but because of the pattern and the questions it raises about the impartiality of our legal system.

[08:15:06]

POPPY HARLOW, CNN ANCHOR: That's a really good point. You've been sounding the alarm on this for a long time, Steve. Your piece, you know, months ago on this, but Congress could act where you would file something couldn't just be arbitrary.

For example, and as you said, Ken Paxton in Texas has brought a lot of big cases before this Judge.

Thank you, Steve Vladeck. We will let you get back to the kiddos in the background. They sound like they need you.

VLADECK: It's a Monday morning, guys. You know how it goes.

HARLOW: Totally get it. Better than my house on Monday morning.

KAITLAN COLLINS, CNN ANCHOR: All right, Steve, thank you so much.

Let's talk more though, about this political fallout because this is something that Washington is keeping their eyes on as well.

CNN's anchor and chief political correspondent, Dana Bash is here.

Dana, you know, you were talking to Congresswoman from New York here, Alexandria Ocasio-Cortez over the weekend. You also talked to the Secretary of the Health and Human Services Department in the Biden administration.

AOC wants the administration to -- the FDA, therefore, to ignore this ruling, this is what she told you.

(BEGIN VIDEO CLIP)

REP. ALEXANDRIA OCASIO-CORTEZ (D-NY): And the reality of our courts right now is very disturbing. This ruling is an extreme abuse of power. It is an extraordinary example of judicial overreach.

I do not believe that the Courts have the authority -- to have the authority over the FDA that they just asserted, and I do believe that it creates a crisis. Should the Supreme Court do that, it would essentially institute a national abortion ban.

(END VIDEO CLIP)

COLLINS: And Dana, we just had a Republican, Nancy Mace on from South Carolina, she agrees that the FDA should ignore this ruling.

DANA BASH, CNN ANCHOR AND POLITICAL CORRESPONDENT: That was a great interview, Kaitlan, and I think I was watching it going, wow, just as the three of you were --

HARLOW: We were going wow as well.

BASH: I know. I know you were, because you have a Nancy Mace, who says, okay, the FDA should ignore the Courts. And then on the other side of the Republican spectrum, you have Congressman Tony Gonzales from Texas, who I also interviewed yesterday, who said not only should the FDA not ignore that, he said if they do, Congress should withhold funding from the FDA.

And therein lies the political reality of the rub, not just the rub, but the real disagreements within the Republican Party. And frankly, a lot of contradictions.

I thought what Steve just said about the Supreme Court, if they are going to be consistent from the Dobbs decision doing away with Roe v. Wade, to now, the consistent approach, if they take it up, assuming they do would be to strike down this ruling, because they argued before in Dobbs that this is a States' rights issue.

We don't know what and if they're going to do, but that is a very interesting notion, separate from the politics of this.

HARLOW: Can I just get to your -- that interview? I mean, the whole show yesterday was fascinating, particularly the point you made to Representative Gonzales about when he answered you and he said, look, this is about States, this is States rights. You said then isn't, and I'm paraphrasing here, you said it much more eloquently, but isn't this essentially a Federal Judge sweeping Federal power over those States rights?

I mean, the argument wasn't even consistent.

BASH: No, it's not consistent. And you know, because you've been doing a lot of discussion about the legal realities here and the problems and the challenges on all sides. I think it is important to talk about the politics.

And part of the reason why Nancy Mace told you, Kaitlan, that she thinks that this is a disaster, not only is because she is a Republican who is for abortion rights, it's also because she's a Republican who is looking ahead to 2024 and seeing what is happening politically.

Look at what happened in Wisconsin last week, where a Democrat won a judgeship because they poured so much money and so much attention into the issue of abortion. Pretty consistently in even remotely purple areas, Republicans are losing because this is so animating by, and to, and for the Democratic, not just the Democratic base, but even some Independents who are going out and voting on this issue because they're so upset about losing the rights that they had had pre-Dobbs.

DON LEMON, CNN ANCHOR: Okay, tone change here, because we love having you on, and by the way, approval from you I hope. I did not get to see it because I was bogged down with so much Easter family this weekend, but I hear that there was this hilarious skit on "SNL" that featured you and some of our contributors and correspondents dealing with the indictment, the Trump indictment. Watch this. [08:20:10]

(BEGIN "SATURDAY NIGHT LIVE" VIDEO CLIP)

CHLOE FINEMAN, COMEDIAN: And his motorcade wasn't even that big. I thought it would be bigger, but it was so small.

UNIDENTIFIED FEMALE: This is his worst nightmare and he is really freaking out, because now he knows there are consequences.

(END VIDEO CLIP)

LEMON: Just so you know that we're not mocking you, or what have you, or any of our people here? This was a skit, and it was it was called CNZen, I think, and it was like doing ASMR on the Trump indictment. So what did you think?

BASH: I thought it was so funny. It was -- it was -- and at the beginning of the skit, the whole premise of it was that there are so many people out there who are so desperate for the former President to be in trouble, and so it was a parody of those people using us as a vehicle.

It was very -- it was very, very clever. And by the way, Chloe Fineman can play me anytime. I'm not going to tell you how many years younger than me she is, but I will take it.

COLLINS: It was so great seeing you, Anderson, Maggie -- I mean, it was such a funny skit.

HARLOW: The wolf pod noise (ph) skit. Pretty awesome.

BASH: Thank you.

COLLINS: All right, Dana, you're the best. Thank you so much.

BASH: Thanks, guys. Good to see you.

LEMON: Thanks.

HARLOW: Well, one of three lawmakers ousted -- one of two lawmakers ousted from the Tennessee House for leading a gun protest on the chamber floor could be voted back into his seat today. We'll tell you how likely that is to happen.

LEMON: In a historic first for New Jersey's largest State school, thousands of Rutgers employees are about to go on strike. We're going to go there live for you.

(COMMERCIAL BREAK)

[08:25:02]

LEMON: Happening this morning, thousands of faculty across three unions at Rutgers University are expected to walk off the job in New Jersey. It will be the first strike in the university's more than 250- year history. The move coming after nearly a year of stalled contract talks.

Let's get to CNN's Athena Jones live in New Brunswick, New Jersey with the very latest.

Athena, good morning to you. Where do things stand right now? Are you seeing protesters? Anything like that?

ATHENA JONES, CNN NATIONAL CORRESPONDENT: Good morning, Don.

Well, not yet. It's about -- nine o'clock is when we expect to see these striking workers hit the picket lines. This is one of the areas on the campuses, where we're expected to see some of these 9,000 educators, researchers, and clinicians who say they're striking for better conditions among the things on their list, living wage for graduate school workers, affordable student housing, access to affordable healthcare, equal pay for adjunct faculty.

But as you again, Don, as you mentioned, this is the first time we've seen a strike of academic workers at this school's nearly 260-year history. We're talking about 67,000 students that could be affected and graduation is just about a month away.

And so the university is saying this is illegal, this strike. It's unclear at this point, whether they're going to be bringing these unions to Court, but here is what one of the leaders of one of the unions says. She says in response to this idea that you're hurting the students. She says: "We want to be teaching our courses. We've heard management say that a strike will harm students. But you know, what really harms students? The high turnover, the results from paying teachers poorly, and making them reapply for their jobs every semester." That is from Amy Higer, who is the President of Rutgers Adjunct Faculty Union.

So we have seen students lining up, getting shuttles that carry them across this large campus. We haven't yet begun to see people arriving out here to the picket line, but there's a lot of enthusiasm by people driving by and also on Twitter from these unions kind of trying to get people out and get people pumped.

Now, the school says classes are not canceled, but some of the union leaders we've spoken to say that they expect teachers not to be teaching, so we'll have to wait and see exactly how many classes are impacted and then what the next steps are taken by the university and by the Governor who has called for the two sides to come together.

LEMON: We'll be watching throughout the day. Athena will be covering. Thank you, Athena Jones.

HARLOW: The Nashville City Council is set to meet later today. They may vote on returning ousted Democratic Representative Justin Jones to the Tennessee House of Representatives. Jones is one of two Tennessee lawmakers expelled Thursday, late in the day for staging of protest on the House floor.

They were demanding stronger gun reform following the mass shooting at Covenant Elementary School in which six people including three nine- year-old children are murdered.

Isabel Rosales joins us live in Nashville this morning.

Walk us through what this would look like, what roadblocks could stand in the way for him to get back there to a seat now on the floor representing the folks in his district?

ISABEL ROSALES, CNN CORRESPONDENT: Hey, Poppy, good morning.

To reappoint Justin Jones back into the seat as an interim successor, the Council here, the Metro Council will need 21 votes. That's a simple majority if the full Council of 40 members show up.

So what I've been hearing from at least two Council members, one of which is the Vice Mayor is that they feel confident that they've got the numbers to push forward an appointment.

The tricky part, what they're not so sure about is a vote that has to happen before then, and that is a vote to suspend a Council rule that prohibits a nomination and an appointment from happening during the same day. It will only take the objection of two Council members for that to not happen and then we don't get to vote on an appointment.

Right now, if that fails according to the Vice Mayor, there is a rule in the books, if they fail to suspend that rule, then they will have to wait four weeks before nominating Jones.

They want to move fast here, from the Council members I've been speaking with, they want to move fast. That is because right now there's nearly 70,000 people in Jones' district who don't have representation here in the State House.

Now Vice Mayor Jim Shulman tells me that what we can expect in terms of this meeting is for this to be relatively quick taking about 15 minutes or less.

Delishia Porterfield will be the one to nominate Jones. She is the same person who lost to him when she ran for his seat -- guys.

HARLOW: Isabel, thank you. We'll watch very closely because a lot could change today. Appreciate it.

COLLINS: Yes, we'll be keeping an eye on Nashville.

Also, the abortion battle has now taken center stage after a Judge in Texas ruled against the FDA's 20-year-old approval of the abortion pill. What can Washington do about it?

We're going to ask a lawmaker who is at the forefront of this issue. A former executive at Planned Parenthood, Tina Smith. She joins us next.

LEMON: And a live look now at the White House where the Annual Easter Egg Roll is about to get underway. Wait until you hear what President Biden just had to say about the 2024 Egg Roll.

COLLINS: Maybe 2025. LEMON: And something else, yes.