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Special Counsel Takes Election Case to Supreme Court; Soon, Zelenskyy Meets With Senators to Request More Aid; Texas Supreme Court Rules Against Emergency Abortion. Aired 7-7:30a ET

Aired December 12, 2023 - 07:00   ET

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

COY WIRE, CNN SPORTS CORRESPONDENT: To Tommy DeVito and chef's kisses all around for Giants fans, they beat Green Bay 24-22, rolling in style.

[07:00:07]

Meta recently, it emerged that is going to take money, will take money from candidates to allow them to promote lies that say the 2020 election was stolen, all as we go into next year.

PHIL MATTINGLY, CNN ANCHOR: Coy, there's a lot of Jets fans on our team here, but I think everybody can appreciate Tommy DeVito. Coy wire, thanks, buddy, I appreciate it.

WIRE: Got it.

POPPY HARLOW, CNN ANCHOR: CNN This Morning continues right now.

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UNIDENTIFIED FEMALE: The Supreme Court moving fast after the special counsel asked the justices to rule on one of Trump's main defenses.

UNIDENTIFIED FEMALE: Whether he is immune from prosecution, whether he is protected from double jeopardy.

ELIE HONIG, CNN SENIOR LEGAL ANALYST: Jack Smith wants to skip that middle step.

UNIDENTIFIED MALE: Voters need to know if this man is a convicted felon when it comes time for the election.

ABBY PHILLIP, CNN ANCHOR: The Texas Supreme Court reversing a ruling that allowed Kate Cox to get an emergency abortion.

ED LAVANDERA, CNN SENIOR NATIONAL CORRESPONDENT: She had no other option to leave the state to get the abortion.

UNIDENTIFIED MALE: Although she had the authority, many, many women are trapped in their states.

UNIDENTIFIED FEMALE: Ukrainian President Zelenskyy to the White House and to Capitol hill as delays for more aid are continuing in Congress. M.J. LEE, CNN SENIOR WHITE HOUSE CORRESPONDENT: The prospects of this getting done before the calendar year is up, it looks not good right now.

VOLODYMYR ZELENSKYY, UKRAINIAN PRESIDENT: When the free world hesitates, that's when dictatorships celebrate.

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MATTINGLY: Well, good morning, everyone. I'm Phil Mattingly with Poppy Harlow in New York.

We start with an extraordinary request from the special counsel in the election subversion case against Donald Trump. Jack smith, the special prosecutor, wants an answer from the Supreme Court, on whether the president is immune from prosecution, and he wants it as soon as possible.

HARLOW: Smith went directly to the high court, essentially leapfrogging what could have been a very lengthy appeals process. It could push the case far past the March trial date. And last night, the court agreed to expedite the consideration of Smith's request. Trump now has eight days until December 20th to respond.

MATTINGLY: Let's dive straight in with CNN Senior Legal Analyst Elie Honig.

Elie, let's start with the argument Trump's legal team was making here. Explain it.

HONIG: Yes. So, let's talk immunity. This is really interesting, trust me. And it's about to get really, really important. So, there are some things we do know and some things we don't know. Let's start with what we do know. There is such a thing as what we call civil immunity, meaning that a federal official or former federal official cannot be sued civilly for anything that falls within the scope of the job.

We actually got that from a decision back in 1982 involving Richard Nixon. Nothing to do with Watergate, basically a former federal official had been fired during the Nixon administration, sues Richard Nixon and the Supreme Court says you can't sue him because firing and hiring federal officials, that's part of the job as president, that's within the scope of working in the White House.

Now, here is what we don't know but we're going to find out very soon. First of all, criminal immunity. I put that question mark there on purpose. We don't know whether there is such thing as criminal immunity. Can you be immune from criminal prosecution? And the question really is, first, is there such thing as criminal immunity? The second thing, if so, did Donald Trump's conduct fall within the scope of his job as president or not?

The way it was described to me, by the way, doesn't just apply to the president, when I became a federal prosecutor, was, if you get sued for bringing a case, for something you do in court, you're covered. That's within the scope of the job as a prosecutor. But if you go out in the weekend and get in a bar fight, not that I ever would, you're not covered for that because that's outside the scope.

Now, the district judge has already ruled on this case. She has rejected Donald Trump's criminal immunity argument. She has said there's no divine right of kings, therefore, there is no criminal immunity. But that's the issue as it's teed up now.

HARLOW: And the real question is the scope of the job.

HONIG: Yes.

HARLOW: The argument is -- the crux of it is within a president's job to allegedly interfere in all these ways to try to keep the job.

HONIG: Exactly.

HARLOW: That's the crux of it. How does this apply to the cases against him?

HONIG: Yes. Well, look, the big issue here, the reason Donald Trump is moving quickly, or, excuse me, DOJ is moving quickly is because of the calendar.

Let's orient ourselves. Today is December 12th. The key date is the trial date in that case, which is March 4th. That is 84 days away. That is not a lot of time to get through the appellate process.

Here is how the appellate process normally would work. This is the district attorney judge, the trial judge. We already have an opinion from them. Normally, the next step would be up to the court of appeals. That takes months in the ordinary course. And if Donald Trump lost there, he could then ask the court of appeals to rehear again what we call en banc, meaning the whole court of appeals. That's going to take more time. And only then do you get to ask the U.S. Supreme Court to review the case. There's no way you get that done in 84 days.

What DOJ, what Jack Smith is asking here, we are at -- again, we have a decision from the district court but we want to go right up to the Supreme Court. It's called direct review.

Now, how often is this occurring? Okay, it's very rare, historically. It actually happened with Richard Nixon in the Watergate case, and then it didn't happen for a long, long time.

[07:05:00]

However, this current court has granted direct review 19 times in the last four years.

I have to credit Steve Vladeck, who looked that up. Some of the most important cases, the Biden student loans case, went direct to the Supreme Court. An important dispute about immigration enforcement, skipped that middle level, went right up to the Supreme Court. So, this is what DOJ is now asking the Supreme Court to do. They're going to decide on that fairly quickly. MATTINGLY: All right. Elie Honig, we really appreciate the breakdown and the fact that you would never get into a bar fight.

HONIG: Never, ever.

MATTINGLY: That's good information right there.

HONIG: To scare people off from the start. Why would they start?

HARLOW: Okay. Following a closely -- you got the crew laughing with that one, Elie.

Ukrainian President Volodymyr Zelenskyy back in Washington this morning preparing to head to Capitol Hill with hat in hand, he's trying to win other new rounds of funding from a very divided Congress on this issue and, frankly, a divided country on this issue as he battles against Russia.

MATTINGLY: Now, Zelenskyy will start his day with an all-senators meeting. He also has some face time in the House with the speaker, Mike Johnson, and Democratic Leader Hakeem Jeffries.

CNN's Arlette Saenz is live for us at the White House. Arlette, when you talk to White House officials, what are they hoping can come out of this visit?

ARLETTE SAENZ, CNN WHITE HOUSE CORRESPONDENT: Well, Phil, President Biden wanted to invite Ukrainian President Volodymyr Zelenskyy here to Washington to make that personal and direct appeal to lawmakers who still remain bogged down on whether to support additional aid for Ukraine.

But Zelenskyy will have a very difficult task as he speaks with lawmakers. He was here at the White House yesterday meeting with National Security Adviser Jake Sullivan ahead of that full slate of meetings up on Capitol Hill, meeting with the full Senate and then one-on-one meetings with the House speaker and the House Democratic leader as well before coming here to the White House in the afternoon for meetings and a press conference with President Biden.

And both Zelenskyy and President Biden have warned that in action on this aid on Ukraine will simply be playing into Putin's hands. You've had officials warning for weeks that not giving this aid to Ukraine at this moment will kneecap them on the battlefield.

But Zelenskyy is really facing a very difficult and nearly impossible task at this moment. Republicans remain dug in that any aid for Ukraine must also have changes to border policy paired with it. And there are Republicans up on Capitol Hill yesterday who said that Zelenskyy's visit wasn't going to change their minds on that matter.

So, right now, this is a very complicated moment for both Zelenskyy, who needs the support for -- to continue his fight against Russia on the battlefield, but also for President Biden, who has made his calls for western unity central to try to face Russia's aggression against Ukraine. HARLOW: For sure. And tomorrow, a huge political battle is going to come to a head with the House deciding whether it will formalize an impeachment inquiry against President Biden. I wonder how the White House is responding to that in the mix of all of this.

SAENZ: Well, Poppy, the White House has always braced for the possibility that the House could go down this route, but they continuously pointed to the fact that, so far, these information investigations have not turned up any evidence of wrong doing on President Biden's part.

And that is something that a spokesperson for the White House counsel's office, Ian Sams, pointed to once again yesterday. He said, quote, if they press onwards with this baseless fishing expedition, it only proves how divorce from reality the sham investigation is and will come this is and will come at the expense of meaning work to actually address the issues the American people care about.

But all of this could also present a very complicated, political dynamic for President Biden. If they decide to move forward with that impeachment inquiry, and then you potentially head into a full impeachment of the president heading into a 2024 presidential campaign, it all could complicate much of the political dynamics for him as well.

MATTINGLY: All right. Arlette Saenz, very consequential day in Washington, especially at the White House, thanks so much.

HARLOW: Overnight, Texas Supreme Court blocked a ruling that would have allowed a woman to terminate her high-risk pregnancy. What this decision means for her and the women across the state of Texas.

MATTINGLY: And after nearly 20 years in prison, a Minnesota man's murder conviction has just been overturned. Ahead, Marvin Haynes will join us for his first national T.V. interview since being released.

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UNIDENTIFIED MALE: I shed tears. I haven't cried so much in 19 years.

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MATTINGLY: New this morning, the Michigan governor, Gretchen Whitmer, has signed legislation expanding abortion access in her state, at the same time she's repealing the state's ban on insurance coverage for abortion without the purchase of a separate rider.

Whitmer is a survivor of sexual assault. She says this shows, quote, to never stop fighting for what you know is right.

HARLOW: And there are new developments this morning in the case of the Texas woman fighting to end her high-risk pregnancy last night. The Texas Supreme Court ruled against Kate Cox, reversing a lower court's ruling that would have allowed her to get an abortion under the state's medical emergency exception.

Cox's doctors say her fetus has a fatal genetic condition and will likely not survive and that Kate, the mother's health, is at risk as a result. But in its ruling, the court said this, quote, no one disputes that Ms. Cox's pregnancy has been extremely complicated. Any parents would be devastated to learn of their unborn child's trisomy 18 diagnosis. Some difficulties in pregnancy, however, even serious ones, do not pose the heightened risks to the mother that the exemption encompasses.

This ruling comes just hours after Cox's attorney announced that she had already left the state to get an abortion elsewhere. It is a move that brings to mind something the late U.S. Supreme Court justice, Ruth Bader Ginsburg, warned about in 2015, essentially previewing what life may become if Roe fell.

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FMR. JUSTICE RUTH BADER GINSBURG, U.S. SUPREME COURT: There will never be a time when women of means will lack choice. Because take the worst case scenario, Roe v. Wade is overruled by the Supreme Court, what it means is a woman who can afford a plane ticket, a bus ticket will be able to decide for herself whether to have an abortion.

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But the women who won't have that choice are poor women and that doesn't make a whole lot of sense, I think.

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HARLOW: And that is the reality now in the state of Texas.

Joining us now, Senior Adviser for Planned Parenthood Texas Votes and former Texas State Senator Wendy Davis. You will remember her filibuster in 2013. That is her speaking for 11 hours to stall a bill that would have implemented strict abortion regulations. That, of course, was before Roe fell. Wendy, thank you very much for being with me this morning.

The Texas Supreme Court bases its decision in this, quote, these laws reflect the policy choice that the state legislature has made, meaning lawmakers, like the position you were in before, and the court must respect that choice. You were a state legislature. Why is that wrong in your view?

WENDY DAVIS, SENIOR ADVISER, PLANNED PARENTHOOD TEXAS VOTES: Well, it's wrong because the state legislature is intervening in the most private, personal healthcare decisions that a person can make. And, of course, they're substituting their own judgment for situations in which we should be respecting people's privacy, these health care decisions.

And what Kate Cox and her family faced is a complete tragedy, one, of course, that she will have additional, emotional turmoil and trauma because she's had to leave our state to get the care that she needs. And as Justice Ginsburg said, if Kate hadn't had the means to do so, imagine the horrific situation she would be facing. And the fact of the matter is that women across our state every single day are denied the abortion healthcare that they need because they don't have the means to access it.

HARLOW: You are arguing this court -- the high court of Texas, is denying people's right to privacy, but, indeed, the Supreme Court in the Dobbs decision overturning Roe said there is no constitutional right to privacy. That's the basis on which it fell. So, if there's not clarification in this language, what does that mean for women across Texas, pregnant women in a position like Kate is in?

DAVIS: You know, it's interesting that you showed what Governor Whitmer is doing in Michigan, which is, of course, in complete contrast to what we're doing here in Texas. And it demonstrates how important electoral outcomes are.

Our policies, of course, are formed by policy leaders who reflect the values of the people who elect them to serve. And what that means for people like us, in states like Texas, where we do have a great deal of voter suppression, is that we've got to work even harder, to make sure that we are helping people understand they have a voice in this situation. They have a voice in who will serve them. And they have a voice in whether their values are going to be reflected in the decisions of lawmakers.

These particular lawmakers have said that it's perfectly fine for doctors to spend the rest of their lives in prison, to lose their medical license if they choose to provide needed abortion care to people in our state. They've substituted their judgment for doctors. And it's time for us to say we're not going to accept that.

HARLOW: I'm glad you bring up what is a felony that doctors could face. It is punishable by a minimum of five years in prison and a maximum of 99 years in prison if doctors are found guilty of violating it. But I do want to ask you, Wendy, is this an issue of clarifying the language? Because the Texas Supreme Court saying doctors can make this decision but they're essentially arguing that the language that Kate's doctor used wasn't clear enough.

They write, Dr. Carson asked the court to preauthorize an abortion yet she could not or at least did not attest to the court that Ms. Cox's condition poses the risks the exception requires. Is this about a need for clarity of language and doctors being extraordinarily clear when they're using that language about a patient?

DAVIS: What we're learning here, Poppy, is that language can be argued in any instance. And that's what's put doctors in such danger here. The court is suggesting and the legislature has said that this should be a reasonable judgment standard. The problem is there's always five or ten people who may disagree that your judgment was reasonable.

What the Center for Reproductive Rights has been asking is that instead, doctors be allowed to use a good faith standard, that in their good faith judgment they can provide this care.

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And without that kind of clarification and that kind of protection, doctors across our state are stuck in a quandary unable to provide care even when their patient's lives are at risk.

HARLOW: This case exemplifying there are indeed limits even when there are exceptions written into the law.

Wendy Davis, thank you very much for your time, former Texas State Senator.

DAVIS: Thank you, Poppy.

HARLOW: Of course. Phil?

MATTINGLY: Well, this morning, Israel says its troops have surrounded Hamas' last two strongholds in Northern Gaza. We're going to be live in Israel with the latest on the offensive.

HARLOW: And with only five weeks into the Iowa caucuses, Ron DeSantis joins our very own Jake Tapper tonight live from Iowa to take questions from the voters there. Ahead, a preview of tonight's presidential town hall.

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MATTINGLY: U.N. General Assembly is set to vote on a resolution this morning demanding an immediate ceasefire in Gaza as the humanitarian crisis worsens each day. Israel's defense minister claims the last two Hamas strongholds in Northern Gaza are now completely surrounded.

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Heavy fighting has been reported in the south as well after Israel's military expanded its offensive.

CNN's Mark Marquardt joins us live from Kerem Shalom crossing.

Alex, this crossing is big news today. What are you seeing on the ground there?

ALEX MARQUARDT, CNN CHIEF NATIONAL SECURITY CORRESPONDENT: It is big news, Phil. Kerem Shalom just opened a couple hours ago to allow for more trucks of aid to be inspected to go into Gaza. You can see this line of trucks here. We have been watching them line up and get inspected. We have seen cases, for example, in their cargo holds from the World Food Programme.

You can see another long line of trucks right here awaiting their turn to get inspected. They're coming from the Egyptian side of the border. And just in a few moments, they'll come around this corner to go down into that inspection process.

But, Phil, essentially, what this does is that this allows for more approved aid to get into Gaza. It does not necessarily mean that more aid is going to get into Gaza. No aid will be crossing from this side. All of these trucks that you see here that are being inspected, they then have to go back into Egypt and back up to that Rafah crossing before they are allowed into Gaza. And so even if more aid is approved and Israel, has had a very strict inspection process, there's still a bottleneck at that Rafah crossing. Rafah is not built to handle a large volume of trucks.

And you have seen the enormous numbers of people fleeing south, the pandemonium in the southern part of Gaza, the heavy violence that has made distribution so difficult. But in theory, Phil the good news is that this would double the amount of aid that Israel approves to go into Gaza.

MATTINGLY: To that point, Alex, U.S. officials have been pressing their Israeli counterparts on the issue of aid, on ramping up aid, surging it to some degree as well. They've also been pressing them to try and minimize civilian casualties, be more precise in those operations in the south. Have you seen any sense or at least gotten any sense in talking to Israeli officials that they're heeding those requests or those warnings?

MARQUARDT: Well, Phil, you heard Secretary Blinken over the weekend, and he said repeatedly that there's still a gap between what he calls the intent to keep civilians safe and what is actually happening on the ground. Israel is defending itself by saying, well, we've issued these warnings for civilians to evacuate the area. But still civilians are being killed and harmed in incredible numbers.

One of the most pressing issues for the United States right now, Phil, is to get this aid into Gaza. Humanitarian officials certainly hope that this crossing will be open soon. For now, I'm told by the IDF that is not on the table, that it is a political decision. So, essentially, the Netanyahu government has decided that, for now, this will not be used to get the aid into Gaza. It is only going to be used for these inspections.

MATTINGLY: That's really important and interesting point.

Alex Marquardt live for us on the ground, thank you.

HARLOW: Today is the last day of a critical climate summit, but talks are now headed into overtime. What's missing from the draft agreement that climate experts are calling weak?

MATTINGLY: And this just in, in a letter first shared with CNN, we're learning three top Democrats are demanding that the FAA require airlines to carry EpiPens on board commercial flights. Right now, it's not required for the life saving medication that stops allergic reactions to be part of an in-flight emergency kit. We'll keep you posted.

We'll be right back.

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