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CNN This Morning

Today, Trump in Appeals Court for Immunity Claim; CNN Poll Shows Haley Cuts Trump's New Hampshire Lead to Single Digits; Today, Boeing Holds Safety Meeting at 737 MAX Factory. Aired 7-7:30a ET

Aired January 09, 2024 - 07:00   ET

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

[07:00:00]

COY WIRE, CNN SPORTS CORRESPONDENT: Now, Coach Jim Harbaugh, 38 seasons as an NFL and college player or coach, no championship titles until now, finally winning one as a head coach for his alma mater.

I wanted you to take a look at the scenes back at campus. If we can pull that up, there are thousands of fans taking to the streets of Ann Arbor, celebrating the national title. Please say there were some couch fires that had to be extinguished, but no major issues, no arrests, no injuries.

And, Phil, to kind of hold you accountable here for your journalistic integrity, I got you a hat. You know, you've been to make up for all of the Michigan hate you've been spewing, I feel that you need to wear this. And Poppy and I and our viewers have noticed that you're a bit of bias, so you wear this for a while to make up for it, okay, Ohio state boy?

PHIL MATTINGLY, CNN ANCHOR: There's literally a no percent chance that will ever happen. And, Coy, I do think it's important to know it. I will grant them the same level of humility and grace that they granted us when we won multiple national championships, none, absolutely none.

POPPY HARLOW, CNN ANCHOR: By the way, Coy, he would never let that hat touch his precious locks. There is no chance. I'm telling you that. Thank you, friend.

MATTINGLY: Thanks, buddy.

HARLOW: CNN This Morning continues right now.

(BEGIN VIDEOTAPE)

UNIDENTIFIED MALE: New CNN polling shows Nikki Haley is closing the gap on Donald Trump in New Hampshire.

UNIDENTIFIED MALE: He's out in Iowa to remind voters, look if you don't come out, Nikki Haley is not that far behind.

NIKKI HALEY, REPUBLICAN PRESIDENTIAL CANDIDATE: I appreciate all the attention President Trump is giving me. It is quite sweet and thoughtful of him.

ANDERSON COOPER, CNN ANCHOR: The former president pushed to make any criminal charges against him disappear.

UNIDENTIFIED MALE: A U.S. federal appeals court will hold a hearing today on whether Donald Trump has immunity in the federal elections subversion case.

UNIDENTIFIED MALE: It is a question about does Donald Trump have to stand trial.

ELIE HONIG, CNN SENIOR LEGAL ANALYST: The problem for Donald Trump though is the facts.

KAITLAN COLLINS, CNN ANCHOR: The United Airlines discovered loose gold on an undisclosed number of their Boeing 737 MAX 9 planes.

UNIDENTIFIED MALE: There's no fundamental design flaw here. It appears they might have missed a step.

JENNIFER HOMENDY, CHAIR, NATIONAL TRANSPORTATION SAFETY BOARD: The cockpit door is designed to open during rapid decompression.

UNIDENTIFIED FEMALE: No one at the flight crew was aware of that.

UNIDENTIFIED MALE: We have a lot of questions for Boeing. How in the heck did this happen?

(END VIDEOTAPE)

MATTINGLY: Well, Good morning, everyone. It's the top of the Hour. I'm Phil Mattingly with Poppy Harlow in New York.

And it is a day of enormous consequence. Just hours from now, Donald Trump will be in court as three judges in D.C. consider a profound question for the nation. Is he immune from prosecution?

This morning, Trump's lawyers will be arguing that the former president has absolute immunity as they fight to throw out felony charges against him for January 6th and the alleged plot to overturn the 2020 election.

HARLOW: And we should note Trump does not need to be there. He has chosen to do so just six days until the Iowa caucuses. This week, he is juggling court appearances with campaign events and rallies. It is a monumental day today for the nation, for history, for presidential power. The implications could change the way we understand what presidents are actually allowed to do.

Let's dive into this. CNN Senior Legal Analyst Elle Honig is with us, also joining us from Atlanta, Trump's defense lawyer during his second impeachment trial and former attorney for Steve Bannon, David Schoen. Gentlemen, it's great to have you. I really, really appreciate it.

David, let me begin with you. If you were in front of the D.C. Circuit, the appellate court, and you were arguing this case today for Trump, what is the argument you would make?

DAVID SCHOEN, TRUMP'S SECOND IMPEACHMENT TRIAL DEFENSE LAWYER: There are two primary arguments. The first is under a longstanding case made to Nixon v. Fitzgerald that a president is immune -- that's in a civil context. The president is immune for actions taken as official actions. He would argue that the actions that issue in the case in D.C. were taken in his official capacity as president based on information he had.

He had an obligation under the take care to make sure laws are faithfully executed and under his oath of office, because he believed there were election irregularities, the steps he took were in that official capacity. Nixon versus Fitzgerald says that covers even the outer perimeters of a president's task and therefore we don't enter into factual inquiries as to whether it was appropriate judgment or not.

The second argument is different. That's his argument that because he was acquitted in the impeachment trial, he cannot be tried again. This is based on the impeachment judgment clause, Article I, Section III, Clause VII, that says if a person is convicted in an impeachment trial, that person can then be tried criminally and have other consequences. By implication, they read into that that if a person is acquitted, that person can't be retried. And then they also pile on double jeopardy principles in addition to the impeachment judgment clause.

I'll say one last thing.

There is a 2000 -- year 2000 opinion, very thorough opinion from the Office of Legal Counsel, Justice Department's binding division that gives legal opinions to the attorney general, very thoughtful, by Randolph Moss, now a district judge in D.C., in which he analyzed the question, said it's a very close question, had arguments on both sides of it.

[07:05:09]

Ultimately, the Justice Department decided that the acquittal in an impeachment trial would not bar a former president from being prosecuted.

MATTINGLY: Elie, I have long found the power of the presidency in those debates, unitary theory of the executive versus kind of where people land on that, completely fascinating and yet largely theoretical. This is real.

HONIG: Yes.

MATTINGLY: And the precedent here, it will completely change depending how it could completely change how the presidency operates.

And I was struck in terms of what Jack Smith's team, they argued, quote, rather than vindicating our constitutional framework, the defendant's sweeping immunity claim threatens to license presidents to commit crimes to remain in office. Not just presidents. Donald Trump is running to be president. He could license himself.

HONIG: Exactly, that's why this is sort of an extra level of concern and controversiality here. And I think what's important to note is we don't know whether there's such thing as criminal immunity. That's never actually been firmly established by the Supreme Court.

I think David does a good job laying out what the arguments Trump's team has made have been. The problem, though, is, was Donald Trump's conduct actually within the scope of what the president is supposed to do? I understand the argument will be, well, he has broad powers.

But even assuming that, if you look at the indictment, it's hard to look at the actual facts as if, well, Donald Trump was just sort of neutrally trying to oversee the elections, make sure they were fair. I mean, any reasonable reading, I think, is he's trying to tilt it his own way.

The other problem that I think Trump's going to face, and I think this is a hypothetical that his lawyers ought to be ready for, what if a president's doing something within the scope of the office, within those outer boundaries, but it's criminal? I mean, and I guess I would pose this to David as a hypothetical. What if a president hypothetically took a cash bribe in exchange for issuing a veto of legislation, right? That would be within the scope of the office. You issue vetoes or a pardon, right? But what if there was an exchange of a cash bribe for that? It would be within the scope, but still criminal. I'll pose it to David. If I could, would a president be immune for that exact conduct?

SCHOEN: I think two answers. One is, if he were still in office, he wouldn't be prosecuted under the Justice Department policy. If he were out of office, I think that he could be, because I don't think it would be an official act. While taken within the scope of office, I don't think it would be an official act covered by this concept of immunity, in any event.

I got to say one more thing, because I know you're going to be short on time. Keep your eye on the additional argument the amicus has provided in this case that the court said they want to ask questions about, and that is whether Jack Smith's appointment was constitutional under the appointments clause. Article II, Section II, Clause II of the Constitution. That's a big question.

There's a law review article that two of the amici who filed the brief have written, Calabese and Lawson. It was rejected when raised in the Mueller, in context of Mueller. But it's a very interesting and complicated argument.

HARLOW: Can we just think on that for a moment, because it would be a stretch. It is interesting. I think it was 2019. It was rejected there. But it would essentially say, looking at that, that it's a supremacy clause argument, right, that it's an inferior officer and you can't do that. But do you think that that argument would work, David? It's getting the least amount of attention. It's a novel legal concept. If it didn't work in 2019, do you think it has any chance here? SCHOEN: Well, what Calabrese and Lawson have said in an article, a very interesting article, is that the court in 2019 never really analyzed it. They see it as an open and shut question under the appointments clause that clearly there's no authority for the attorney general to appoint special counsel for this kind of role. The president had to have appointed him. He's not an inferior officer. I think they happen to be right on the argument.

Politically, is it a palatable argument at this point? I don't know. This is not an easy panel either for the president. On paper, you would say it looks like two to one against, but I don't think those are very fair or good judgments to make. I've seen commentators make that, but you never know. I assume all judges are going to be fair and look at it on the facts and the law.

HARLOW: Thank you, gentlemen, really helpful. I appreciate it.

MATTINGLY: Well, also this morning, Nikki Haley has cut Donald Trump's lead in the Republican primary race in New Hampshire to single digits. That's at least according to a new CNN poll conducted by the University of New Hampshire. The former president still holding a meaningful lead in that poll, 39 percent of likely GOP primary voters in the state, compared to Haley's 32 percent. The rest of the field lagging far behind, Chris Christie at 12 percent, Vivek Ramaswamy at 8 percent, Ron DeSantis at 5 percent.

HARLOW: New Hampshire's primary two weeks from today. The Iowa caucus is six days away only. That will be the first time voters get their say on the 2024 election. Last night in Des Moines, Iowa, Haley refuted Trump's claim that she, quote, betrayed him by running for president. Listen.

(BEGIN VIDEO CLIP)

HALEY: I will tell you, when I said I would never run against him, we hadn't had the debacle in Afghanistan, we hadn't had inflation go through the roof and we didn't lose the midterms by ridiculous numbers.

[07:10:10]

When I decided to run, I called him. I wanted him to know I was in it to win it. And I told him then we needed a new generational leader. I told him then we needed to leave the negativity and the baggage behind.

(END VIDEO CLIP)

MATTINGLY: Well, as Haley was speaking last night, Trump's campaign was blasting out press releases used to be directed at Ron DeSantis. Now, Nikki Haley is funded by Democrats, Wall Street and Globalist. And the Super PAC backing Trump, is running a new ad attacking Haley on immigration.

(BEGIN VIDEO CLIP)

HALEY: We don't need to talk about them as criminals, they're not.

UNIDENTIFIED FEMALE: Illegals are criminals, Nikki. That's what illegal means. Nikki Haley, too weak, too liberal to fix the border.

(END VIDEO CLIP)

MATTINGLY: Clearly, the campaign seeing something.

Joining us now from Des Moines, CNN Political Director David Chalian. David, top line us to start here. What stands out to you as you kind of dig through these new poll numbers?

DAVID CHALIAN, CNN POLITICAL DIRECTOR: Well, you showed the horse race there. This is our brand new CNN University of New Hampshire poll. Just look at those top line numbers again, Trump at 39 percent, Haley at 32 percent. I think that explains everything you need to know as to why those ads are running that you just played, Phil.

The Trump universe, the Trump campaign, the Trump super PAC, unleashing just a torrent of criticism and critique of Nikki Haley as they tried to deal with keeping her at bay specifically in New Hampshire.

Look at the growth over time in our poll as well, and you see that Nikki Haley's momentum that we've been talking about for weeks in this campaign is apparent here as well. She's increased her share of the vote by 12 points. She was at 20 percent in our November poll. She's at 32 percent now.

You see, Trump has moved very little. In fact, he's been remarkably stable throughout this entire campaign in New Hampshire. So, that movement is exactly what the Trump team is trying to blunt as they try to get away with two early state victories and actually hasten their path to the nomination.

HARLOW: How does she fare on this poll with undecided voters in New Hampshire versus Trump?

CHALIAN: So, not undecided but undeclared is what they call independents, Poppy, and I think this is such an important point.

Take a look at the breakdown between registered Republicans and registered undeclareds. Among Republicans, Trump is at 58 percent, Haley is at 21 percent, but among the independents who in New Hampshire can participate in the Republican primary, she's at 43 percent support among those independents. He's at 17 percent support. You also see Chris Christie doing quite well among independents. Trump is actually in third place there.

This is critical, because when you think about the battle for the nomination, you have to look for places if you're Nikki Haley where independents can actually participate in the process because where it's just a closed primary to Republicans only, Trump is still dominating that universe.

MATTINGLY: David, I think to underscore one of your earlier points, Trump's support is locked in, in terms of people that have decided when you look through this poll. Haley is less so, but the growth has been real. What does that tell you about things?

CHALIAN: Yes. So, according to our brand new survey, Phil, 80 percent of Trump supporters say they are fully committed to Donald Trump. They're not moving, their mind is made up. That is true of 54 percent of Haley supporters and 45 percent of everyone else. So, that shows me there's still movement to be had here. People are still willing in New Hampshire to change their mind.

Now, some of those folks may change their mind to Donald Trump. So, it's not necessarily a bad thing for him, but it shows potential for Haley to continue to grow. And especially we dug in, and I know you'll like this one, to Chris Christie voters. You remember he's at 12 percent in the poll. And we said, who's your second choice? If Christie were not there, 65 percent of Christie voters say their second choice is Nikki Haley.

And this is the argument about whether or not there's going to be this mounting pressure over the next week or so to somehow get Christie out of the race if you're a Haley supporter and have him endorse Haley. I still think that's unlikely, folks, but you can see why Republicans look at these numbers and see that may be a way for Haley to stop Trump in New Hampshire.

HARLOW: And it was about only 30 percent to Trump, right, from Christie voters, David?

CHALIAN: Yes. Among Christie voters, I don't think it was an asterisk. Trump was not the second choice of basically any Christie voter, which shouldn't surprise anyone. His campaign has been totally based on going against Donald Trump, right?

HARLOW: Yes. David, thank you very much.

MATTINGLY: And, obviously, don't forget tomorrow at 9:00 P.M. Eastern. I say, obviously, because you've got to be watching this tomorrow night. Jake Tapper and Dana Bash moderating CNN's Republican presidential debate live from Iowa. Tune in.

HARLOW: United Airlines finding loose bolts on a number of their Boeing 737 MAX 9 planes, the same model plane that had that door plug blow open midflight on Friday.

[07:15:04]

MATTINGLY: And Donald Trump says he thinks the stock market is headed for a crash, and he hopes it's convenient for him.

(BEGIN VIDEO CLIP)

DONALD TRUMP, FORMER U.S. PRESIDENT: We have an economy that's so fragile, and the only reason it's running now is it's running off the fumes of what we did.

When there's a crash, I hope it's going to be during this next 12 months, because I don't want to be Herbert Hoover. The one president, I just don't want to be Herbert Hoover.

(END VIDEO CLIP)

(COMMERCIAL BREAK)

HARLOW: Today, Boeing is scheduled to hold an all-employee meeting that is focused on safety at the 737 MAX factory that is in Renton, Washington. And this comes as we're learning many new details about that Alaska Airlines flight on Friday, where a blowout left a giant hole in the plane midflight.

(BEGIN VIDEO CLIP)

HOMENDY: Flight attendants mentioned that the communications was so poor that they felt like they really needed guidance and information.

We found today that the cockpit door is designed to open during rapid decompression.

[07:20:03]

It is designed to open during rapid decompression. However, no one among the flight crew knew that.

The auto pressurization light that illuminated, that we have gotten a lot of questions on, at this time, we have no indications whatsoever that this correlated in any way to the expulsion of the door plug.

(END VIDEO CLIP)

HARLOW: That was Jennifer Homendy, the head of the NTSB.

And now Alaska Airlines says that initial reports from technicians indicate loose hardware was visible on some of their planes. United Airlines also looking at their MAX planes and found some loose bolts on those 737 MAX 9 door plugs.

Pete Muntean, following all of this. It leaves me speechless that they're looking at all these planes where this hasn't happened, and yet there are loose bolts that indicate that it could have happened there as well.

PETE MUNTEAN, CNN AVIATION CORRESPONDENT: Yes, and it's a big smoking gun here, Poppy. These major developments overnight about this door plug, which is where this investigation is focusing, that's a door on the Boeing 737 MAX 9, visible from the outside, normal window wall and seats on the inside.

Alaska Airlines has been prepping its planes to comply with the checks that have been ordered by the FAA. And Alaska now says its mechanics have found hardware that was loose. The other airline that operates these planes, as you mentioned, is United Airlines. And United announced yesterday that it found loose door plug bolts on some of its MAX 9s.

This is huge. These two announcements combined are a significant data point for investigators. And the bolts are really critical to the design of the MAX 9 door plug, 4 bolts, 12 stops, and without the bolts, the door can essentially wiggle free of the stops.

Now, the NTSB has recovered the door in question. They've now inspected it, and they can now tell that the door shot off and up like a rocket. But investigators say they are now looking for the bolts that would have held the door in place. Listen.

(BEGIN VIDEO CLIP)

CLINT CROOKSHANKS, AEROSPACE ENGINEER, NATIONAL TRANSPORTATION SAFETY BOARD: The exam to date has shown that the door, in fact, did translate upward. All 12 stops became disengaged, allowing it to blow out of the fuselage.

We have not yet recovered the four bolts that restrain it from its vertical movement, and we have not yet determined if they existed there. That will be determined when we take the plug to our lab in Washington, D.C.

(END VIDEO CLIP)

MUNTEAN: Remember, MAX 9 still grounded in the US. And overnight, Indonesia also grounded its MAX 9s. There are 215 MAX 9s in service globally, two thirds in the U.S. Obviously a huge hit for Boeing. And today it's holding that companywide safety meeting hosted from the 737 MAX factory in Renton, Washington. Poppy?

HARLOW: And, Pete, we've also now heard from a teacher named Bob who found that door in his backyard, which is just stunning. But also it's crucial, right, for them to figure out what went wrong and how do you prevent it again.

MUNTEAN: A lot of clues here. Backyard Bob, Bob Sauer teaches physics, really the hero of this latest chapter of this investigation, maybe the best physics lesson ever. The biggest discovery, though, along with the phones and other parts that have been found in Portland streets, and he says it's maybe the most exciting thing to ever happen on history.

(BEGIN VIDEO CLIP)

BOB BAUER, FOUND DOOR PLUG IN HIS BACKYARD: I saw in the flashlight light that there was something gleaming back there which shouldn't have been there. Oh, that's curious. So, I went back to look at it and it turned out to be the door. This is the most exciting thing that's ever happened on the street.

(END VIDEO CLIP)

MUNTEAN: I spoke to NTSB Chair Jennifer Homendy about this discovery. She says she wants to go to the school where Bob teaches physics.

One interesting physics lesson here, the reason why this door was separated from the phones and headsets and other things that got sucked out of the hole on the Alaska Airlines flight 1282 is that it has some curvature to it. It actually sailed a bit like a wing, which is why it was a few blocks away.

HARLOW: Wow. Pete Muntean, thank you for your excellent reporting.

MATTINGLY: And joining us now is Ed Pierson. He was a senior manager at the Boeing 737 factory and warned about problems on the 737 MAX production line before two fatal crashes, one in Indonesia in 2018, the other in Ethiopia in 2019. Those two crashes killing a total of 346 people.

Now, Ed shared his story with Congress in 2019. He is now the executive director of the Foundation for Aviation Safety. Ed, we appreciate your time this morning.

I guess I would start with, are you surprised, based on your experience and I think to some degree the assurances promised since the issues that you raised by the companies, by the industry to see this happening with this line of 737.

[07:25:00]

ED PIERSON, BOEING WHISTLEBLOWER: No. Good morning, and absolutely not. We are absolutely not surprised. We actually have been expecting far worse. So, this is actually in many ways an awesome wake-up call because it could have been so much more tragic. There're so many other issues that the planes have that we've been monitoring for a while now. So, yes, I wasn't surprised at all.

And maybe that's the most shocking part is some of us who have been watching this have been reporting on many, many production quality defects. They've had over 20 serious production quality defects just since the plane rolled out, you know, went back into service, I said. So, this is very concerning. Yes.

MATTINGLY: Were the specific issues -- when you talk about the issues that you have seen and concerns that you have raised, were the issues that appear to have happened in this case, issues that you had raised, seen or been aware of before this happened?

PIERSON: Yes. I mean, you know, when you talk about loose bolts on an airplane, that's obviously not a good thing. We had many, many problems with when we put a plane through the assembly line. There's a lot of people that are working on that plane and those employees are rushed. If they're fatigued, if they don't have proper quality control, those kinds of things can occur. And as you've seen, you know, when it happens on one plane, there's a very good chance it's happening on other planes.

So, we have seen issues in electronic and electrical issues involving the airplanes in service. And, you know, we've had improper electrical bonding and grounding in the factory. We've seen issues with gaps and shimming issues.

These are very important quality-type measures that we have to take advantage of. And what's happening is there's just this urge to get these airplanes out the door. So, employees are -- you know, all the variables that were in place, like, yes, what I'm saying, all the variables that were in place in 2018-2019, before those crashes are still there, and they're rearing the ugly head again. And we've seen this in safety reports. We've seen this in just a whole bunch of situations. So, it's very discouraging.

MATTINGLY: And you raise these issues publicly in your testimony to Congress. We reached out to Boeing about this. They responded, as operators conduct the required inspections, we are staying in close contact with them and will help address any and all findings. We are committed to ensuring every Boeing airplane meets design specifications in the highest safety and quality standards. We regret the impact this has had on our customers and their passengers.

In terms of the path forward here, do you feel like investigators will have access time bandwidth to get all the information they need to take action if it's necessary?

PIERSON: Those words that you just read there, those are typical -- you know, the kind of typical safety statements that you hear from the Boeing Company. And, unfortunately, you know, the proof is in the pudding.

So, we had a United flight just within like a month or so ago that had 37,000 feet. They lost an engine. They had an engine failure. That plane had 40 hours on it. You know, we had a Southwest Airlines plane that took off out of Phoenix earlier in the year, or last year, and that plane lost electrical power as soon as it took off. That plane was delivered the night before by Boeing.

So, you know, there's a lot of, you know, nice safety statements that can be made, but when it gets down to it, if you have employees that are pressured to get their jobs done and you have issues -- I mean, the company removed quality control inspections, if you can believe that. The company has been removing quality control inspections, which have been around for many years to ensure safety.

So, you know, this is just a pattern here that we've seen. They had engineering exemptions. We just found this out recently that just in the last few months, we've had the company request special exemptions from flight-related safety systems, including engine anti-icing system, the stall management yaw dampener, flap-slaps unit.

So, we have seen, here we have after, you know, two fatal crashes, 346 people died, $20 billion to our loss of the company, criminal conduct, and the company is requesting special treatment right now to comply with legally required engineering design standards. It's just astonishing what's happening.

So, I'm sorry, I just don't have a lot of confidence right now in the leadership of the Boeing Company.

MATTINGLY: You certainly have a history of raising these concerns over the course of the last several years. We'll keep in touch with Boeing as well if they want to have anybody on the show. We'd love to talk to them.

Ed Pierson, we appreciate your time. Thank you.

PIERSON: Thank you.

HARLOW: Well, right now, Secretary of State Anthony Blinken is in Israel. He is meeting with top officials there. What Israel is telling him about the plan to try to push Hamas to release more hostages, that's ahead.

MATTINGLY: And Jimmy Kimmel firing back at Aaron Rodgers last night after the Jets quarterback claimed the late night host name might show up in the Jeffrey Epstein logs.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: Aaron Rodgers is too arrogant to know how ignorant he is. They let him host Jeopardy for two weeks. Now he knows everything.

(COMMERCIAL BREAK)

[07:30:00]