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More Trump Co-Defendants Surrender at Fulton County Jail Ahead of Former President's Arrest; Meadows, Clark Fight to Move Georgia Case to Federal Court; Trump Rivals Fine-Tuning Strategy for Debate. Aired 7-7:30a ET
Aired August 23, 2023 - 07:00 ET
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
(BEGIN VIDEOTAPE)
ELIE HONIG, CNN SENIOR LEGAL ANALYST: Court-appointed lawyer.
[07:00:00]
If this is a stall tactic, it's not going to work.
UNIDENTIFIED FEMALE: Mark Meadows is trying to now a last ditch legal maneuver to try to avoid his own surrender.
JOHN EASTMAN, FORMER TRUMP ATTORNEY: It targets attorneys for their zealous advocacy on behalf of their clients.
UNIDENTIFIED FEMALE: The mug shot, if it ends up happening with Trump, he's going to fundraise off of it.
UNIDENTIFIED MALE: I don't think any of us relish seeing our former colleagues go through what likely is in store for them.
ANDERSON COOPER, CNN ANCHOR: Eight Republican presidential hopefuls will take the stage for the party's first 2024 primary debate.
KAITLAN COLLINS, CNN ANCHOR: One person who won't be on that stage is former President Donald Trump.
UNIDENTIFIED MALE: He'll do some counterprogramming. If somebody lands a glove on him during the debate, he goes down.
UNIDENTIFIED MALE: I'm not sure that if I was in his camp, he'd be advocating for the split screen of seeing other candidates and seeing him being arranged in a courthouse.
UNIDENTIFIED MALE: Ramaswaymy has very low expectations.
UNIDENTIFIED MALE: Ron DeSantis has the most approved and the most to lose.
UNIDENTIFIED MALE: Christie is going to get booed, as is Mike Pence. But I think Christie is going to enjoy it.
JEFF ZELENY, CNN CHIEF NATIONAL AFFAIRS CORRESPONDENT: One year from now, the Republican nominee will be crowned. Will it be Trump or one of these other candidates on the stage?
(END VIDEOTAPE)
POPPY HARLOW, CNN ANCHOR: Big day, big night ahead. We're so glad you're with us. Good morning, everyone.
VICTOR BLACKWELL, CNN ANCHOR: Good morning. It is a really big day. I mean, you've got surrenders in Georgia, you've got a debate in Milwaukee, and then the man at the center of both at home in New Jersey.
HARLOW: The future of the U.S. presidency. That's right.
BLACKWELL: A lot going on.
HARLOW: New this morning, two more of Donald Trump's co-defendants have surrendered at the Fulton County Jail as he prepares to turn himself in for the alleged scheme to overturn his Georgia election loss. David Schafer and Cathy Latham, they were arrested and booked before dawn. Schafer is the former chair of the Georgia Republican Party. He allegedly convened fake electors to fraudulently declare Trump the winner. Cathy Latham was one of those fake electors. She is also accused of helping Trump operatives gain illegal access to voting systems and voter data in Coffee County, where she was the chair of the Republican Party there.
BLACKWELL: Sources tell CNN that Rudy Giuliani will meet with the Fulton County District Attorney's Office today to work out a bond agreement for his surrender. Trump's looming arrest in Atlanta tomorrow is still in the spotlight, from the first GOP presidential debate tonight, that's in Milwaukee, the Republican front-runner says he's skipping it. Eight of his rivals will take the stage without him.
CNN National Security and Justice Reporter Zachary Cohen is live outside the Fulton County Jail. It could be a very busy day where you are.
ZACHARY COHEN, CNN NATIONAL SECURITY AND JUSTICE REPORTER: Yes, Victor and Poppy, good morning. We started our day early around 2:00 A.M. this morning when two more of former President Trump's co- defendants turned themselves into the Fulton County Jail behind me here.
As you mentioned, those two people were former GOP Georgia chair David Schafer and Cathy Latham. Both of them served as fake electors. Schafer was the top fake electors accused of organizing these fake slaves to gather on December 14th, 2020 and sign these fake certificates.
Now, Latham is also connected, though, to the breach of voting systems in Coffee County. She faces charges related to both her role as a fake elector and the voting breach in Coffee County.
But at the end of the day, we're still only up to four total defendants, 4 out of 18 co-defendants for Trump that have turned themselves in so far. We do expect a steady parade of individuals to start appearing here at the Fulton County Jail today and into tomorrow. But I would have to think that they want to get in here before the former president is supposed to arrive tomorrow, sometime in the afternoon.
And as you mentioned, Rudy Giuliani is one of those people who we could see in Atlanta today. We are hearing from our sources that he's set to meet with the Fulton County D.A.'s office and discuss the terms of a bond agreement. That is the thing that usually precedes a surrender.
So, a busy day ahead for us here, and we could be seeing Rudy Giuliani in Atlanta within the next couple hours.
BLACKWELL: I know you'll be watching the records and those entrances very closely.
President Trump, former President Trump, is expected to show up tomorrow. How's the jail preparing?
COHEN: So, officials here in Atlanta have been preparing for Trump's arrival for a while now. But, look, we are in uncharted waters. This is really unprecedented. So, security preparations can only go so far.
That being said, we have seen tightened security here at the jail. You know, the public is not allowed in certain areas where they usually are allowed. You know, we will see how the procedure plays out differently once Trump enters the jail.
So far, the defendants that have surrendered have really been treated like anybody else that would surrender after being charged with a crime. It remains to be seen if Trump will go through the process, though, of fingerprinting and mug shots, but we'll be watching to see if that happens.
BLACKWELL: Zachary Cohen for us there outside of Rice Street, the jail in Fulton County, thank you so much.
HARLOW: All right. Back with us to discuss what's going on right now, CNN's Senior Legal Analyst and former Federal U.S. Attorney in the Southern District of New York Elie Honig, good morning.
Meadows, Mark Meadows, former chief of staff to Trump, and Jeffrey Clark, former DOJ official, both want their case removed to federal court. Explain what that even is and how you get it.
HONIG: Yes. Today's lesson is on removal.
[07:05:00]
Now, removal is an old law. It's rarely used, but it's so important here. What that law says essentially is if you are a federal official and you are charged with state crimes in some circumstances, you can get that case moved over to federal court.
Now, of course, these are state level charges brought by the Fulton County D.A. We have three former federal officials in this indictment, Jeff Clark, who was a DOJ official, Mark Meadows, of course, was chief of staff, Donald Trump was president. But the key phrase here is they have to have been acting under color of their federal office.
They will argue and have begun to argue, that's what we were doing. We were doing our jobs. The D.A. is arguing, no, you were committing crimes, which is the opposite of what you were supposed to do. Ultimately, this will be up to a federal judge to decide whether to take this case.
If they succeed, the case will essentially be picked up, transported out of the state level court, moved exactly 0.3 miles over to federal court. The state charges will remain the same. They'll just try the state charges here. And the D.A., yes, Fani Willis and her team can still try this case in federal court.
HARLOW: One thing that's interesting is Trump hasn't made this move yet. Is it because if Clark and Meadows get it moved, it removes the whole thing, all 19 of them to federal court?
HONIG: So, there's actually an interesting question. We don't know the answer. What happens if one of them, what happens if Jeffrey Clark succeeds? Do all 19 go over with him or is it one by one? We don't actually know the answer to that. My instinct is it would be one by one because it's meant to protect federal officials. It doesn't really apply to people --
HARLOW: There's a lot of lawyers, et cetera.
HONIG: Exactly.
HARLOW: What are the benefits for Meadows, Clark, Trump in a federal proceeding?
HONIG: The strategic stakes here are so high. First of all, your jury pool. If they stay in state court, the entire jury pool is going to be drawn from Fulton County.
Now, Fulton County in the year 2020 voted 26 percent for Donald Trump. If you get into federal court, now you're into the northern district of Georgia, which includes all these counties.
Just as a quick example, the neighboring Cherokee County, 68 percent for Trump, neighboring, for Donald Trump. Forsyth County, right to the north, 65 percent for Trump. This is my John King moment. But you can see why they want to get the --
HARLOW: No, you can't quite do John King, but you're getting there.
HONIG: No, a pale imitation. But you can see why they want to get into federal court.
Also, the actual court system, and whatever happens either at the state level trial court or the federal level trial court, that's ultimately going to be appealed to the mid level court of appeals.
Now in the federal court, you are in the 11th Circuit. That is known as the second most conservative of the 13 federal circuits. Of course, then there's the U.S. Supreme Court. Although I should note, the Supreme Court can also take cases from the state system.
But if you're Donald Trump, you want to be in the 11th Circuit. They've actually ruled against him, but that's a very conservative circuit.
Most importantly, if you get into federal court, the next move, if any of them succeed, they're going to ask for dismissal. And what they have to show here is that their conduct as federal officers was authorized by federal law and no more than was necessary and proper.
And if you're thinking, well, that's really similar to what they have to show to get into federal court, it is. And if they get into federal court, they're right on the precipice of a dismissal.
HARLOW: And if they get that, story over or it goes up?
HONIG: Yes, it's over. Well, it will be appealed again, but we just talked about how it will go up.
HARLOW: So Trump asked for this to happen to move his New York case, the hush money payment case, out of a state court into federal court. And not only was he denied, the wording by Judge Hellerstein was vehement that he didn't have the grounds for this. Is it substantively different than what they're trying to do in Georgia?
HONIG: It is. Donald Trump tried this before in the New York case, was rejected. First of all, he wasn't president when he made the hush money payments. He tried to argue while they carried over into when I was president. The federal judge said, and I quote, hush money paid to an adult film star is not related to a president's official act. You can file that one under, no kidding.
HARLOW: Right. Elie, thank you very much. Victor?
BLACKWELL: So, when one of Trump's code offenders, John Eastman, turned himself in yesterday, he called the moment a crossing of the Rubicon for the country. Watch.
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EASTMAN: I'm here today to surrender to an indictment that should never have been brought.
It targets attorneys for their zealous advocacy on behalf of their clients, something attorneys are ethically bound to provide.
REPORTER: Do you still think the election was stolen?
EASTMAN: Absolutely.
REPORTER: Absolutely. Still?
EASTMAN: No question. No question in my mind.
(END VIDEO CLIP)
BLACKWELL: With us now, John Eastman's attorney, Charles Burnham. Attorney Burnham, thank you for being with me.
This is your first appearance on CNN since the indictment, certainly since your client surrendered yesterday. He's charged with nine counts, including violating Georgia's RICO Act, conspiracy to file false documents and conspiracy to impersonate a public officer. How do you respond first to the charges, the accusations against your client?
CHARLES BURNHAM, ATTORNEY FOR JOHN EASTMAN: Well, thank you for having me. And I think, first of all, what Professor Eastman said there in his statement yesterday was exactly right. All of the charges, including the main RICO count against Professor Eastman have to do with his advocacy as an attorney and as an intellectual on behalf of his client, which at that time was Donald Trump. None of his arguments were made in contravention of any binding law from the Supreme Court or otherwise.
[07:10:03]
They were all made in good faith, and they were all well supported. Certainly, there were responses to them that many people could and didn't make, but none of them constituted criminal activity.
BLACKWELL: So, when you say that they were all supported by the Supreme Court, Greg Jacobs, former chief counsel to then Vice President Mike Pence he told or said that your client admitted that if this were to go to the Supreme Court that they would lose nine to zero. His hope was that the court would not accept it because it's political. How do you reconcile what Jacob says Eastman admitted to with your claim that this is in line with Supreme Court law?
BURNHAM: Well, I'll say two things. The first is I didn't quite say they were supported by Supreme Court precedent. They're not foreclosed by Supreme Court precedent. That's the distinction. It's an open question. There just simply isn't a Supreme Court case that controlled what Mr. Jacob and Professor Eastman were debating there.
We don't agree with Mr. Jacob's characterization of that conversation, including the quote that you mentioned. That's something we'll dispute if he's ever a witness in this case. And, finally, your reference there to the Supreme Court wouldn't take the case. That's the political question doctrine. That's well established. That's not something Professor Eastman thought of, and that very well might have come into play, and it was perfectly legitimate for Professor Eastman to consider that.
BLACKWELL: Let's push forward on this rhetorical defense that your client gave yesterday, where he says that he was offering this zealous advocacy on behalf of the client, something attorneys are ethically bound to provide.
We learned from emails given to the House select committee on the January 6th riot that Eastman knew that the allegations, some of them were false, relating to the election in Georgia. This email is dated December 31st, 2020. This is your client writing, although the president signed a verification for the state court filing back on December 1st, he has since been made aware that some of the allegations and evidence proffered by the experts has been inaccurate, that in a filing from Judge Carter. That was filed anyway in federal court despite the knowledge.
How do you then reconcile that with ethical bounds? If he knew that the underlying evidence was false and phony, how was that ethical in this zealous defense?
BURNHAM: Sure. So, what that refers to is we have to remember the litigation in Georgia's. There was a suit filed in local state -- state court in Georgia, and then later on there was a suit filed in federal court. And there was a period of time in between the two. They didn't think the state court was moving fast enough.
And so during that period of time, they discovered that there were some basically clerical errors. I can get into details in some of the detailed expert information submitted in connection with suit number one, which was in state court.
And so what that actually shows is the attorneys there were being scrupulously careful to make sure that the filings that were made in the second suit, the federal suit, took proper account of the mistakes that they had -- inadvertent mistakes that they had uncovered in the first suit. This happens all the time in litigation.
BLACKWELL: Are you saying these are just clerical errors, not just false claims about underage voters, people who were dead voting, that these are just a couple of missed, what, commas and words misspelled?
BURNHAM: It was two numbers were switched. So, the overall number of alleged illegal votes wasn't inaccurately represented. This is my understanding. I wasn't involved in that case. But it was two numbers were switched. And so the overall number of alleged illegal votes was correct, but it was two different categories got switched. And that was what they were trying to account for in the later filings. So, that's what that was a broader question here.
BLACKWELL: A broader question here. Your client still believes that the election was stolen. Dozens of cases filed, they went nowhere. There's no evidence of widespread fraud. How much does that belief impact how you defend him against these charges in Georgia?
BURNHAM: Well, I think there's two things. One is, as a former public defender myself, believe me, the courts can get things wrong. But, more importantly --
BLACKWELL: 60 times?
BURNHAM: I'm sorry?
BLACKWELL: 60 times?
BURNHAM: Oh, for sure. And what Dr. Eastman focused on was not so much the fraud aspect of this but illegality, which what that means is not necessarily criminal fraud but votes being cast in violation of the manner of the election prescribed by the state legislature, which has constitutional underpinnings.
But the second thing is the issue that's going to be presented ultimately perhaps to a Georgia jury is not was the election stolen or not necessarily, but it's more going to be focused on were the arguments to challenge the election made in good faith. And I'm confident they'll absolutely see that they were.
BURNHAM: One thing I've learned involved in this case and others, that a lot of people smarter than me, just as patriotic, had very serious concerns about the election and still have them today. And Dr. Eastman is one of those people.
BLACKWELL: So, some of these efforts from your client, John Eastman, I want you to listen to Harvey Silverglate, another of his attorneys, in describing how he approached the defense and how he approached these filings on behalf of Donald Trump.
[07:15:10]
(BEGIN VIDEO CLIP)
HARVEY SILVERGLATE, ATTORNEY FOR JOHN EASTMAN: His role was 100 percent that of a lawyer trying to come up with creative ideas that push the margin of the law in order to reverse the Electoral College count. So, he's unique. He is on trial for being a lawyer who was coming up with creative ideas.
(END VIDEO CLIP)
BLACKWELL: Push the margin of the law. What does that mean and how does that differ from breaking it?
BURNHAM: It differs enormously and it goes back to my first point, which was that nothing Dr. Eastman advocated for was foreclosed by Supreme Court precedent or other binding authority. That's important. That's critical.
I think what Mr. Silverglate was referring to there was the fact that we would never deny that Dr. Eastman's theories were aggressive. They were cutting edge. They were creative. Certainly they were counter- arguments to them, but that makes them no different than many other constitutional innovations that have been initially unpopular throughout our history, women at military academies, Miranda rights, integration of schools. There's a whole list.
Now, you might say those ideas were good and I think Dr. Eastman's ideas were bad, but that's sort of the whole point, is many constitutional innovations were criticized and ridiculed at the beginning. And Dr. Eastman's advocacy was very much well placed within that American tradition.
BLACKWELL: Let me ask you one more here on the federal case. John Eastman is named as an unindicted co-conspirator. Have there been any conversations about cooperation with the special counsel's office?
BURNHAM: No, no. I think Dr. Eastman's testimony or information that he would share, in my assessment, is not what the special counsel's office is looking to hear. Dr. Eastman is innocent of criminal activity, as are his co-defendants, and that's what he would tell them and I've never been convinced that they were -- I was never able to assess that they were in a position to receive that with an open mind.
BLACKWELL: All right. Charles Burnham, thank you.
BURNHAM: Thank you for having me.
BLACKWELL: All right.
HARLOW: Great conversation. Elie's with us to talk about what's striking.
BLACKWELL: Your reaction to what you just heard there.
HONIG: Really insightful and really valuable in helping to understand what the defense is going to be. Mr. Burnham is absolutely correct. We cannot criminalize. It is extraordinarily dangerous to criminalize bad lawyering. You're allowed to make ridiculous arguments. You're allowed to make arguments that you believe will lose. Heaven help us if it became a crime for lawyers to make losing arguments. And sometimes, as a lawyer you say, look, I don't think this is a winner, but it's the best I can do for my client.
The challenge for prosecutors is they're going to have to show something more than that. They're going to have to show something that shouldn't be resolved in the ethics courts, that goes beyond. And I think, Victor, you pinpointed what the prosecutor's main argument is, is if he was -- Johnny Smith was part of knowingly submitting false information to a court, that crosses the line.
Now, Mr. Burnham had a response. Ultimately, whether that's credible or not will be up to the jury.
HARLOW: One of the things -- that was a great conversation and illuminating. One of the things that was striking to me is an argument he made near the end, equating it to things like the Virginia Military Institute, the VMI decision in the Supreme Court, saying a lot of these arguments were made that people thought were sort of out there, I'm paraphrasing, and they changed, you know, America.
That decision, for example, was an equal protection 14th Amendment argument. All remember Ruth Bader Ginsburg wrote that majority opinion.
Can you equate this to something like that?
HONIG: Yes. If losing 9-0 in the Supreme Court --
HARLOW: That was about, by the way, saying it's not legal to just have men allowed into a school.
HONIG: Right. If losing 9-0 or losing the Supreme Court was a crime, we'd be in big trouble.
But let's just make up an analogy here. What if one of the lawyers on the losing side submitted false information knowingly to the Supreme Court, data about the student body, data about applicants, that kind of thing. Now, you're potentially crossing a line.
The other thing that I think prosecutors are going to point to is John Eastman's involvement in the fake elector scheme, the creation and signing and submission of these forms where purported slates of Trump electors said, we are the duly elected electors when, of course, they were not.
But I think that email that you pointed to Victor and the fake electors, that's the two hooks that prosecutors are going to have to use to say, this is not about lawyering. This is about criminality.
But I think as you just showed, this is not an easy case for prosecutors. Again, let me just urge, let's not get to the point where we say, this was terrible lawyering. All the smartest lawyers in the world disagreed. You thought you were probably going to lose. That's not a crime. That can't be a crime. They have to show something more. They think they have it. Prosecutors, maybe they do.
BLACKWELL: All right. Thank you, Elie.
HARLOW: Thanks, Elie.
Donald Trump's rivals will try to seize the spotlight at the Republican presidential debate tonight. Of course, he won't be on the stage. Michael Smerconish, always wise, up early with us this morning for his take.
[07:20:02]
BLACKWELL: And COVID cases are on the rise and more health experts warn that it might be time to mask up again. Dr. Sanjay Gupta will help us break down the latest guidance.
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HARLOW: First Republican debate is tonight. Eight Republican hopefuls will stand on the stage. Florida Governor Ron DeSantis and tech entrepreneur Vivek Ramaswamy share the center of the stage. But, of course, the main attraction, Donald Trump will not be there but he's going to counterprogram in an interview he's already taped with Tucker Carlson.
Happy to be joined this morning, special appearance, it's always a big morning when you get CNN Host Michael Smerconish. It's true, Michael. We know it's a big morning if you're with us. What are you looking at tonight?
MICHAEL SMERCONISH, CNN POLITICAL COMMENTATOR: Big question, Poppy, and thanks for the compliment, nice to see you, and Victor, is it going to be a circular firing squad? I mean, it's this odd situation where you have the prohibitive favorite not on that stage tonight. He's four times indicted, and yet six of the eight who will be on that stage tonight have heretofore been unwilling to criticize him and go after him for those.
If you just landed here and you sized up this political dynamic, you'd think it's bizarre, and it is. And the reason that they won't go after him is because they're afraid of alienating the base.
So, tonight, what's going to happen? Are they going to fight for table scraps? Table scraps would be going after DeSantis and going after Vivek Ramaswamy or do they finally go after the big cheese?
And one other thing to think about is two hours, 120 minutes divided by eight. My math is not so good, but it tells me there's not much time for each of these candidates.
BLACKWELL: Yes. Considering the time, do they get to policy? We were having a conversation with John Avlon and Errol Louis earlier today and they were hoping that we get some policy.
[07:25:01]
This is early in the process, the first debate. It's not in one of the earlier states. Do you expect that they'll get to the meat of the issues?
SMERCONISH: I think, Victor, it will be a combination of both, Trump- focused, whether they want it or not. I think Chris Christie and Asa Hutchinson and the debate moderators have said they're going to address the elephant not in the room.
There will be policy considerations, but gosh in 60 seconds? I mean, the format is such that you only get 60 seconds for a response tonight. My commercial breaks are like four minutes long. Yours too. It's just not much time to get to some things --
HARLOW: Don't remind people, Michael.
BLACKWELL: -- as much as we think we want to hear substance. And it will be the fireworks that will make the headlines.
Hey, guys, I have an idea. Here's how they could do it differently tonight. You remember MAD, Mutually assured destruction? How about if, in the green room tonight, before they get out on the stage, they all come to terms and they say, look, we're all afraid to go after Trump because we don't want to alienate the base. But if we all go after Trump, then no one of us is going to be held accountable. And that's really what needs to happen. So who's with me? Let's do it.
HARLOW: Yes.
BLACKWELL: And how many hands do you see going up for that? I don't imagine they're going to do that.
HARLOW: The brave.
SMERCONISH: Two. BLACKWELL: Yes, two.
SMERCONISH: Christie and Hutchinson.
BLACKWELL: Yes.
HARLOW: So, your point, Michael, about a circular firing squad just makes me think if they do that and they just kill one another, that just makes Trump stronger, doesn't it? It's less likely to elevate someone above Trump in people's opinions who are waffling.
SMERCONISH: Yes. And, Poppy, the data shows, I mean, all of these polls are consistent, that he's benefited. His like approval rating among Republicans is enhanced 10 percent, according to the polls that I've seen in the last two months, during which time nothing else has happened except he's been indicted.
It's not as if you could say, well, Donald Trump put forth a policy statement, and people have really rallied to it. No, the only thing of consequence that has happened is he's been indicted, and his numbers among Republicans have gone up. And that's why until now the others are afraid to take him on.
HARLOW: He did propose a 10 percent tariff on everything yesterday coming into this country. So, there is that. I'd love to see them debate what actually that would mean for the American people, but I doubt we're going to get to that.
BLACKWELL: What I missed from my days in radio was the call-in segment, where people would call in, tell you what they care about, what they're looking for. What are you hearing from your listeners?
SMERCONISH: I think, Victor, people are just most eager to see them all together and to be able to size them up, because we've seen them individually in drips and drabs. Most of the oxygen in the room has been focused on Trump. Maybe it's a good thing in that respect that he's not there and others will get their opportunity to make their pitch. But it's as if the preseason has come and gone, and we're now ready to really begin this process in earnest. I think that's what I most hear and sense from callers.
HARLOW: They're open minded?
SMERCONISH: Well, some are open minded. Poppy, I happen to believe that there were a significant number of Republicans ready to abandon Donald Trump. But to do it on their own terms, they don't want to be told what to do.
I equated this on my own CNN program with a domestic disturbance. And when the police arrive, all of a sudden, the family that's fighting within themselves, they turn on the interloper, they turn on that outside source.
I think the GOP might have sorted this out, but the perception is among Republicans that these indictments are political, and, therefore, they rally around the flag instead. And the flag is Donald Trump.
HARLOW: Michael Smerconish, thank you, friend.
You can watch Smerconish, obviously, listen to his great radio program, but watch him here on CNN Saturdays, 09:00 A.M Eastern.
BLACKWELL: So, how are Democrats planning to respond to the debate tonight? The chair of the Democratic National Committee, Jaime Harrison, there he is, he'll tell us, next.
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