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Supreme Court Faces Showdown with Trump; Americans Freed by Venezuela in Prisoner Swap Now on U.S. Soil; Hamas: No Talks Over Prisoner Swaps Until IDF Operation Ends. Aired 7-7:30a ET

Aired December 21, 2023 - 07:00   ET

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

[07:00:03]

DEREK VAN DAM, AMS METEOROLOGIST: So, yeah, not the white Christmas that everybody hoped and dreamed of.

PHIL MATTINGLY, CNN ANCHOR: Just to be clear, kids, Derek is just the messenger. He's not personally trying to destroy Christmas.

ERICA HILL, CNN ANCHOR: Yeah.

VAN DAM: Thank you for clarifying that.

(CROSSTALK)

MATTINGLY: This is an important thing.

HILL: It is.

MATTINGLY: You become the face of that and I don't want that to happen because it is not deserved. Derek, we appreciate you, man. Thank you.

VAN DAM: We do not want a meme here, okay?

(LAUGHTER)

HILL: CNN THIS MORNING continues right now.

(MUSIC)

(BEGIN VIDEO CLIP)

REPORTER: Is Trump an insurrectionist, sir?

JOE BIDEN, PRESIDENT OF THE UNITED STATES: Well, I think it's self- evident. We saw it. Now, whether the 14th Amendment applies, I'll let the court make that decision. But he certainly supported an insurrection. No question about it. None. Zero.

(END VIDEO CLIP)

MATTINGLY: Well, good morning, everyone, and welcome. Poppy is off today. Erica Hill is with us. That was, of course, President Biden weighing on former President

Trump being disqualified from Colorado's primary. The Supreme Court could be seeing a lot of Trump and 2024 in the New Year. The cases they could soon take up could re-shape the entire election.

HILL: The U.S. and Venezuela agreeing to a prisoner exchange. The key ally Venezuela got back in exchange for some wrongfully detained Americans. More on that.

Also this morning, one wrongfully detained American saying he feels abandoned.

Plus, new overnight, the Israeli military says it uncovered a, quote, substantial and elaborate network of tunnels used by Hamas in Gaza.

CNN THIS MORNING starts right now.

(MUSIC)

MATTINGLY: Well, good morning.

This morning, there is a very clear reality. The Supreme Court facing some huge decisions that could determine the fate of the 2024 election. And Donald Trump, the former president, is adding to the legal chaos by deploying a new delay tactic. His lawyers have asked the Supreme Court to hold off on deciding whether Trump is immune from federal prosecution. Remember, special counsel Jack Smith has been demanding a quick answer because Trump is about to go on trial scheduled for March, the day before Super Tuesday.

HILL: We're also watching and waiting for Trump to go straight to the Supreme Court after being kicked off the ballot in Colorado in that historic ruling, deeming he was ineligible because he engaged in insurrection on January 6th.

Trump's former Attorney General Bill Barr is now warning that Colorado ruling will ultimately help the former president.

(BEGIN VIDEO CLIP)

BILL BARR, FORMER ATTORNEY GENERAL, TRUMP ADMINISTRATION: I think this kind of action of stretching the law, taking these hyper aggressive positions to try to knock Trump out of the race are counterproductive. They backfire. As you know, he feeds on grievance just like a fire feeds on oxygen. And this is going to end up as a grievance that helps him.

(END VIDEO CLIP)

MATTINGLY: And we start this morning with CNN senior legal analyst Elie Honig here to break it all down.

And I want to start -- the way the Supreme Court has just moved to the absolute center of 2024 conversation of the former president, of his legal liability is quite astounding. Walk through --

(AUDIO GAP)

ELIE HONIG, CNN SENIOR LEGAL ANALYST: -- this is the quiet time of year at the Supreme Court, alas, here we are in 2023, and you're right, they are right at the center of everything that's happening.

Let's start first of all with Jack Smith's federal election subversion case against Donald Trump. This is the case based in D.C. Now, to bring everyone up to speed, Donald Trump argued that he has criminal immunity cannot be prosecuted because what he did was in the scope of his job as president. That argument was forcefully rejected by the trial court judge, the district court judge who ruled there's no divine right of kings.

That sets the table for where we are now. This court, the district court, that's where all that happened. Ordinarily, the next step is Donald Trump who lost would then go here to the court of appeals and if he lost there, then perhaps to the U.S. Supreme Court.

Jack Smith, however, has asked for an extraordinary remedy. He said, no, let's skip this middle and let's go directly from the U.S. district court up to the U.S. Supreme Court, something called direct review.

So, that's what the briefing and argument we've been seeing have been about. Jack Smith argued immediate resolution of the question to permit the trial to occur on an appropriate timetable. You know what word Jack Smith will not use, election.

He will not say I want to do this because of the election. It's quite obvious.

And Donald Trump's team put in a brief last night where they jumped on that, and they said, he has not identified any specific reasons, they know he won't say it, right, and they say there are no extraordinary circumstances we should get to go through all those normal steps here.

And the calendar, Phil, it's all about the calendar. Today is, of course, December 21st. The trial date on this particular case, it's the first of the four trials scheduled, for March 4th, 74 days away. But more importantly, jury selection is slated to start February 9th. That's 50 days from right now.

If they don't jump up to the Supreme Court, forget about this. It's going to take several months the appeals arguments are going into February, March, April, if they do jump to the Supreme Court, like Jack Smith wants, this day I still think will move but not by much.

[07:05:07]

So, that's what's at stake here.

MATTINGLY: So, the Trump filing says it's rare. It's not something that happens very often. Why would you go this route? What are the odds the Supreme Court takes it up?

HONIG: Yeah, a little bit of history can help us here. This technique of direct review, skipping the middle level, has happened in history, Richard Nixon case, involving the Watergate tapes most famously. Recently, the case involving Joe Biden's student loan program which was struck down, the case involving affirmative action, a little bit of stats for you here.

In the 26-year period from '92 to 2018, this was only done two times. It was almost nonexistent since 2019 though. The last four years, it's been done 19 times. Why the change? I have no idea. They have just started doing it much more often.

So that suggests they may be willing to do it here.

MATTINGLY: Don't they each cite a Nixon-related case in their filing? One that goes --

HONIG: Anything to do with immunity, there's Nixon case on both sides.

MATTINGLY: All right. So we have to talk about the Colorado ruling.

HONIG: Yeah.

MATTINGLY: In terms of where it stands right now, the former attorney general seemed confident the Supreme Court would take it up. Everybody seems to think they're going to take it up. Are they going to?

HONIG: I think they will. This is the 14th Amendment, says, if you engage in insurrectionist, you're disqualified. The Colorado state Supreme Court ruled by a 4-3 vote, yes, Donald Trump is disqualified. Next up probably is the U.S. Supreme Court. We are watching to see any moment if Donald Trump actually takes up there.

Colorado now stands alone. It is the only state that has thrown him off the ballot. These efforts have failed in six other states and been withdrawn in a dozen other states. We'll see, though, whatever happens in Colorado could dictate what happens in a lot of these other states.

MATTINGLY: No rest for the Supreme Court.

(CROSSTALK)

MATTINGLY: -- for Elie Honig, thanks, buddy.

HONIG: We're ready.

MATTINGLY: We appreciate it.

HILL: Well, Trump's Republican rivals are defending him on the campaign trail following that Colorado Supreme Court ruling which, of course, booted him from the primary ballot.

(BEGIN VIDEO CLIPS)

GOV. RON DESANTIS (R-FL), PRESIDENTIAL CANDIDATE: Look, it's unfair. They're abusing power 100 percent. NIKKI HALEY (R), PRESIDENTIAL CANDIDATE: The idea that judges are

going to take it upon themselves to decide who can and can't be on the ballot is truly unthinkable.

VIVEK RAMASWAMY (R), PRESIDENTIAL CANDIDDATE: This is a move on behalf of the establishment in both parties, that I think is hell-bent to determine to say that Donald Trump should not be able to run and see this through.

CHRIS CHRISTIE (R), PRESIDENTIAL CANDIDATE: I do not believe Donald Trump should be prevented from being presidents of the United States by any court.

(END VIDEO CLIPS)

HILL: CNN political director David Chalian joins us now, in person, at the table, which is always a good day.

DAVID CHALIAN, CNN POLITICAL DIRECTOR: Good morning, guys.

HILL: It's great to see you.

We look at -- you know, you are seeing the number of Republicans step up and say, hey, this is really an issue. Bill Barr saying, this is a grievance that helps them, even Dean Phillips is out there saying, hey, this is wrong, he shouldn't be thrown off the ballot. This feels like a major win for Donald Trump.

CHALIAN: It does right now in that short term, we will see if the Supreme Court concludes it's a major win for Donald Trump at the end of the day here, but it is -- it's a gimme for him in many ways because it is different as Elie was just showing you, from what all these other courts have done relating to this 14th Amendment issue and ballot access.

And, it is reminiscent of the first criminal indictment that Alvin Bragg brought in the Stormy Daniels case. That was one that Republicans no matter how opposed they are to Donald Trump, and his recurring potential to office, they felt was sort of purely political and beyond the pale, they rallied to his cause.

And, by the way, that helped all voters on the Republican side to rally to his cause well in a big substantial way and it changed the calculus of this entire year before the election.

And so, I think you are seeing that right now with the Colorado case. I think it is an opportunity for even those opposed to Donald Trump to say this is something voters should decide, and not courts. It's a pretty easy line for them.

MATTINGLY: Taking a step back, which you're always so great at, the Supreme Court here and its role in 2024. I was reading "The Wall Street Journal" editorial board which has a very specific on the Supreme Court, and the six conservative justices, but says in a presidential race is itself damaging to democracy. Mr. Smith has already asked to weigh in on Mr. Trump's claims of immunity from the prosecution. Whatever the court decides, especially if the justices are divided on either question, half of the country will be angry.

Now I quibble with the idea that Supreme Court has not been involved in presidential election before.

CHALIAN: Yeah.

MATTINGLY: But its rule here, is there any precedent for it and how does this end?

CHALIAN: Well, to your point though of the history here, Phil, I think that the country is in such a different place politically than it was 23 years ago when the Supreme Court did get involved in the Bush v. Gore case. I am not so sure that there's any decision by the Supreme Court that will be widely accepted by the public in the way that the Bush v. Gore did, and, of course, Al Gore had something to do that because he accepted the decision while saying he disagreed with it, and moved to a peaceful transition from Clinton to Bush.

But we are so much more polarized than we were then. We are in such a politically different environment that it's hard to imagine the Supreme Court touching this in any way that is actually going to unify the country, or strengthen the sense of belief in the institution.

HILL: I think it's such a great point, it really is just a completely different time, right, and the way Americans look at any decision, completely different.

[07: 10:03]

We talk so much about the words that Donald Trump uses, I know, and there is more polling out that essentially finds a lot of voters are totally okay with it. They're okay with the language being used about immigrants, they're okay with the vermin comments about Democrats, in fact it often, I think this should be surprising tends to bolster for the former president.

CHALIAN: Yeah. I mean, I think this has been the lesson learned over the last eight years of Donald Trump on the political stage, that he has an ability with his rhetoric to strengthen support among core supporters. And so, in that "Des Moines Register" where they're asking, are you more likely or less likely to support him, I think he reinforces positions of where people are.

I mean, I think if you are with Donald Trump, his rhetoric makes you more likely to support him. You're there for the most part. I'm sure there are slice of his voters who may feel differently.

And if you are a Republican who's looking to turn the page and not in favor of Donald Trump's candidacy, the rhetoric obviously doesn't do anything to convince you otherwise. But it is part of his bond with his supporters and his ability to maintain his supporters is something I think unparalleled in American politics.

MATTINGLY: "The Des Moines Register" story, the story in the paper about this poll and about this kind of phenomenon to some degree that's quoting voters that could've been in 2015 all over again, saying at least he is not a polished politician, it shows he is not from Washington.

The dude has led the Republican Party without any question for going on nine-plus years at this point. How does he hold on to this idea that he's not of the --

HILL: He's not a politician.

MATTINGLY: He's the party right now.

CHALIAN: Well, because he doesn't behave according to any norms, right? Except you are right, he is the new norm for the Republican Party. There is no doubt. He is the dominant leader of the party. He's clearly the front-runner in this race poised to be the nominee again.

I just think this stickiness of support, this relationship that Donald Trump has to his supporters, is one that we will study in history books going forward, long after the time Donald Trump leaves the stage.

HILL: Well, also true with your point, the point you just made about the polling. People don't really move. They are either okay with that and sticking with him, or they are not.

MATTINGLY: Right.

HILL: And there's not a lot of wiggle room.

David Chalian, keeps a very busy, my friend. You're going to be back with us in a little bit.

CHALIAN: Yeah.

HILL: So, we will see you then. Thank you.

MATTINGLY: Well, the U.S. has secured the release of Americans who are being held in Venezuela. We're going to break down that deal and speak to someone, how to bring one of these men home.

HILL: There's also new details this morning surrounding the accidental shooting of three Israeli hostages at the hand of the Israeli military. What's some new video reveals.

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[07:16:32]

(BEGIN VIDEO CLIP)

SAVOI WRIGHT, AMERICAN RELEASED BY VENEZUELA: Free at last, free at last, thank God Almighty, free at last. Very emotional, exciting, grateful, so much gratitude for the moment, for the United States of America. I didn't know if I would ever make it out.

(END VIDEO CLIP)

MATTINGLY: That was 38-year-old Savoi Wright, an American wrongly held in Venezuela since October finally back on U.S. soil.

He was one 10 Americans freed as part of a prisoner exchange deal between the U.S. and Venezuela. Six of the 10 Americans deemed, quote, wrongfully detained by the State Department landed at Kelly Field in Texas last night after spending months, in some cases, years, in prison in Venezuela.

The deal also includes the extradition of Leonard Francis, a former military contractor known as Fat Leonard, who orchestrated the largest corruption scandal in U.S. Navy history.

As part of the swap, the U.S. agreed to return Alex Saab, a top ally of Venezuelan President Nicolas Maduro, who's facing prison time in the U.S. on corruption and money laundering charges. At the same time, this morning, we are hearing from another wrongfully detained individual, Paul Wheeler, who is wrongfully detained in Russia.

He says he feels, quote, abandoned by the U.S. who has also secured two prisoner swaps with Moscow this year. He told the BBC, quote, it's extremely stressful knowing that I could have been home years ago. It's extremely frustrating to know that they've made these mistakes. They have basically abandoned me here.

Joining us now is Jonathan Franks with the Bring Our Families Home Campaign. He represents the family of Savoi Wright, and helped them with the process of getting Savoi home. Jonathan has worked on the successful release of several other Americans detained overseas including Trevor Reed.

Jonathan, we appreciate your time this morning.

You have done so much work on these issues, with this case in particular. You've been in touch with Savoi's family? How are they doing now that he's been back?

JONATHAN FRANKS, REPRESENT FAMILY OF AMERICAN FREED SAVOI WRIGHT: Thanks for having me, Phil. They are overjoyed. This is a big moment for them.

And I appreciate you playing the clip of Savoi getting off the airplane. It's the first time I've seen it to see him looking so good is just wonderful. I have not had the chance to chat with him, but to see him looking this good is amazing.

MATTINGLY: These are such difficult negotiations, talks, processes to figure out from the outside. I think you got a window into that. In November, "The Associated Press" wrote a story about the frustration that Savoi's family fell and was facing as they were trying to figure out how to get home. His sister wore, quote, it is sickening. They withdrew their hands up in the air and say, we have no diplomatic relations with Venezuela so we can't do anything, referencing the U.S. government.

How fast did this come together if this was only a month ago?

FRANKS: This came together relatively quickly, although shortly after -- I think, after Maduro agreed to the Barbados agreement. Certainly in the last couple of days things have gotten -- the negotiations seems to have warmed up a little bit. So, these are not easy when there's one person, much less when there is ten Americans, plus 20 other Venezuelan souls.

This is a very complicated deal to put together and execute. So I give a lot of credit to the president, the government, Ambassador Carstens. They have done an amazing thing. They've cleared the decks in Venezuela.

MATTINGLY: I think the administration is very aware, you make this deal, there's going to be criticism. And that's been the case for a number of these hostage deals, and some of which you've been involved with. We've heard from the top two Republicans House and Senate on Foreign Relations and Foreign Affairs, saying, quote, today's swap strengthens Maduro and makes Americans less safe around the world.

[07:20:09]

What's your response when you hear that?

FRANKS: You know, I'm a big fan of Congressman McCaul and Senator Risch. You know, we just fundamentally disagree on this one thing. And, you know, I'm kind of disappointed to see them taking shots at a deal that saved 10 American lives and the lives of 20 other souls. This is a 30-1 deal, right?

I don't know that that strengthens Maduro. I mean, it seems to me objectively that the United States got the better end of the deal. Mr. Saab was a white collar criminal whose alleged crimes had no identified American victims. And unfortunately, the prosecution of the United States versus Saab had a whole lot of American victims, Savoi Wright being the latest.

MATTINGLY: There has been a paradigm shift on hostage negotiations, on the willingness to make these deals. You mentioned Roger Carstens, who run point for the Biden administration. That criticism we just discussed used to win the day politically and also on policy. This shift we have seen from the Biden administration, why do you think it's happened?

FRANKS: Phill, I think it's because of the hard work of the families and our coalition. We have been at this for two years, trying to soft on the ground under these deals and create a political space for the president to make them. I actually don't think that what from I have seen, there's not -- it doesn't seem to be significant opposition to this deal. It seems as though people were kind of checking a box, sending statements opposing it.

The ground has shifted, the families have done a great job educating folks. Having been involved in a whole lot of prisoner transfers, including, you know, one for dangerous Russian folks, not a single American has been hurt by somebody that we traded.

And Mr. Saab, you saw him going down the stairs of the airplane in the clip. This is not a man who is likely to harm Americans, right? He had trouble getting off of the airplane.

MATTINGLY: You mentioned the slot that Russia was involved in. We talked about Paul Whelan and his comments to the BBC.

What would be your message to Paul Whelan, to his family, given where things are right now?

FRANKS: I've got -- I start every conversation with the Whelan's with, I am sorry. I cannot believe that he is still there. I cannot believe that they have left him behind through this many prisoner exchanges. And, you know, certainly, the Russians have a vote in when he gets out. They have the keys to the jail.

But I hear his frustration. I feel it, too. Ever since Trevor Reed came -- got out, we have been on a mission to get Paul Whelan out home -- excuse me, bring him home, too. So far we have not been successful and it bothers me every single day.

MATTINGLY: It's certainly something the administration says they are working on.

Jonathan Franks, a big night for you, for the families last night. I appreciate the work you are doing. Thanks for your time.

FRANKS: Thanks, Phil. Appreciate you.

HILL: Well, this just in, Hamas says there will be no talks about prisoner swaps, getting those hostages out, until the Israeli military ends its operation in Gaza. We're going to take you live to Tel Aviv.

MATTINGLY: And Rudy Giuliani will have to start paying for his lies as soon as this morning. Why a judge decided the two women Rudy defamed can collect money from him immediately.

Stay with us.

(COMMERCIAL BREAK)

[07:27:26]

MATTINGLY: This just into CNN, we are learning Hamas will not agree to any talks about prisoner swaps until after Israel ends its military operation in Gaza.

Explosions continue in both the northern Jabalia region and also in southern Rafah with no indications at this point that Israel is going to scale back its military offensive against Hamas.

The Hamas-controlled health ministry now says more than 20,000 Gazans have been killed. The World Food Programme says half the population there is now starving.

Also this morning, Israel's military says the voices of three Israeli hostages who were accidentally killed by their own troops were actually captured on IDF camera which was mounted on a dog days before they were fatally shot. The statement comes as Israelis are still reeling from the IDF's

admission on Friday of that shooting.

CNN's Jeremy Diamond joining us now live from Tel Aviv with more on this reporting.

So, let's start, if we could, Jeremy, with the statement now from Hamas and what it means for the state of hostage negotiations.

JEREMY DIAMOND, CNN CORRESPONDENT: Well, Erica, there has been a flurry of activity in recent days indicating that the parties were, perhaps, inching closer to the negotiating table. There were a series of meetings in Europe yesterday. Ismail Haniyeh, the head of Hamas, traveled to Cairo in what was viewed as a restart to the hostage negotiations. This morning, Hamas is now saying that its position, effectively, is unchanged, which is that it will not engage in hostage negotiations until there is first a cessation of hostilities, a full cessation of aggression is the term that Hamas used here.

They are also framing this as a Palestinian national decision, saying that it was the decision of all Palestinian factions in Gaza.

Israel for its part has been trying to restart these negotiations and put a proposal on the table that would've seen the release of some 40 hostages in exchange for a weeklong pause in the fighting, as well as the release of Palestinian prisoners. But it appears that for now, Hamas is sticking to its position that it will only begin to engage in those negotiations once there has been a pause in the fighting.

And that is not going to happen, as far as Israel is concerned. It is very much pressing forward with its military campaign in Gaza. In fact, just moments ago, we learned from the Palestinian ministry of health that more than 20,000 people have now been killed in the Gaza Strip. According to the Palestinian Ministry of Health in Ramallah, 70 percent of those are women and children, by definition, civilians, effectively.

And so, it just shows that even as there is this kind of political prospect of negotiations, right now, Hamas is saying it will not stop, it will not engage in those negotiations until it will stop this war.

[07:30:00]