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Tonight on CNN, Final Republican Debate Before Iowa Caucuses; Federal Appeals Panel Appears Skeptical of Trump's Immunity Claim; Pentagon Says, Austin's Hospital Stays were for Treating Prostate Cancer. Aired 7-7:30a ET

Aired January 10, 2024 - 07:00   ET

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

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UNIDENTIFIED FEMALE: Tens of millions of Americans under the threat of severe weather.

UNIDENTIFIED MALE: Sustained winds with gusts that will be over 70 miles an hour. When you get over 70, it's a very dangerous situation. We're preparing for the worst.

DONALD TRUMP, FORMER U.S. PRESIDENT: As a president, you have to have immunity, very simple.

UNIDENTIFIED FEMALE: Donald Trump making his case in court and not ruling out violence if his cases move ahead, the president.

ELIE HONIG, CNN SENIOR LEGAL ANALYST: The president orders murder and cannot be prosecuted. They sort of invented this argument.

PAULA REID, CNN CHIEF LEGAL AFFAIRS CORRESPONDENT: Even if Trump loses on the merits here, he still may win on the tactics.

UNIDENTIFIED MALE: What could really stand between him and the presidency is this case.

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PHIL MATTINGLY, CNN ANCHOR: Good Wednesday morning, everyone. It's the top of the hour. I'm Phil Matting with Poppy Harlow in New York.

For the first time, Nikki Haley and Ron DeSantis will be going head- to-head alone on a debate stage tonight right here on CNN. This will be one of their final chances to shift the dynamics of the race just five days left until the Iowa caucuses.

Donald Trump, of course, still the clear favorite. But right now, Nikki Haley is riding a wave of momentum after a new CNN poll showed her closing the giant gap, Trump in New Hampshire, and cutting his lead to single digits.

(BEGIN VIDEO CLIP) NIKKI HALEY, REPUBLICAN PRESIDENTIAL CANDIDATE: We have been waiting for this. I've done 150-plus town halls and it has come to this moment.

Don't complain about what happens in a general election if you don't play in this caucus. It matters.

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POPPY HARLOW, CNN ANCHOR: Meanwhile, Ron DeSantis has been sharpening his attacks against Haley on the campaign trail in Iowa. Last night, he pointed to the recent gaffes she's made, like failing to mention slavery as the cause of the Civil War.

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GOV. RON DESANTIS (R-FL), PRESIDENTIAL CANDIDATE: She had a period where media was fluffing her. Now, she's in a situation where she's getting scrutiny. And it's like almost every day she answers questions, something happens where she's putting her foot in her mouth.

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HARLOW: With us now, CNN Senior Political Commentator, former Senior Obama Adviser David Axelrod, and former communications director for the RNC, Doug Heye, he also ran communications for the 2012 Republican Iowa caucuses. Great to have you both.

David, let me start with you. What does Nikki Haley need to do tonight on the stage?

DAVID AXELROD, CNN SENIOR POLITICAL COMMENTATOR: Well, look, Nikki Haley has used these debates to vault herself into this race. She literally has profited from this debate and brought donors, a lot of them, from Ron DeSantis, over to her corner. She's gained in the polls.

So, in some ways, she has to keep doing what she's doing. She's been a great performer in these debates, but I think she has to do a little bit more. She needs to beat Ron DeSantis in this race for second place to get the momentum she wants going into New Hampshire. She'll go to New Hampshire regardless.

So, while her focus may be on Trump, she can't forget DeSantis when he's standing next to her on the stage and he has to draw him into the equation. She says Trump is all about chaos. But DeSantis, in many ways, has emulated Trump in his handling of politics and government in Florida. And she might want to weave him into the narrative a little bit and make herself the person who can take us beyond chaos, conflict to a more cooperative environment in which things actually get done.

MATTINGLY: Doug, if Nikki Haley does beat Ron DeSantis or come in second place, and Ron DeSantis comes in third in Iowa, I would assume it would be the death knell for Ron DeSantis' campaign, what does he have to do tonight? DOUG HEYE, FORMER RNC COMMUNICATIONS DIRECTOR: He has to beat Nikki Haley and also demonstrate that he is somebody who can win in November. I think what's interesting about tonight is we have two candidates on stage who have very different audiences. Ron DeSantis' audience is all about Iowa. It doesn't matter about New Hampshire for him at this point. He has to do well in Iowa. He has to come in second. He has to communicate not just to those Trump voters or Trump- leaning voters, but also suburban voters outside of Des Moines. I'm looking at like Ankeny Ten is my favorite caucus site outside of Des Moines. He has to do well there.

Nikki Haley has two audiences, and it's why her comment about Iowa is not necessarily a gaffe. If she does well in Iowa, her second audience is New Hampshire. When she leaves Iowa, going to New Hampshire, which she will, she can say if she comes in third, it is your job to correct what Iowa did here. She can move forward regardless.

But both of them not only have to win tonight, but also demonstrate that they're better candidates than Donald Trump is. And that's going to be hard for both of them because they've sort of resisted being able to do so.

HARLOW: They really have, which has been fascinating. Also, Trump getting more support, Doug, from the Republican establishment. We saw the number three Republican in the Senate, John Barrasso, who got behind him last night. So he is gaining momentum there. He's gaining money, fundraising, huge numbers every time he makes a court appearance.

HEYE: Yes. And court appearances for Donald Trump are campaign appearances, essentially. You know, if he's not doing a rally in Des Moines or in Manchester because he's at a courthouse, that, for him, is a campaign event. He uses those within the primary to his advantage. It's why Nikki Haley says there's a difference between the primary and the general, exactly that.

It speaks to the general election chaos argument of Nikki Haley. But for Donald Trump, it's about pushing DeSantis out, pushing Haley out, because what we see with political momentum is it's very much of a what have you done for me lately. Which is why tonight is very important for both of these candidates who will be on stage.

MATTINGLY: David, I don't know if you heard Doug's flex about his favorite caucus site. If you've got one, feel free to fire back at him on that front.

I think what's interesting, though, is another rare thing that will be happening this week, Donald Trump is actually going to Iowa. He'll be in Iowa today and tomorrow as well. I've never seen this. He's not in Iowa. DeSantis does the full Grassley hits all 99 counties. Nikki Haley, even though New Hampshire is kind of the primary one state for her, she's in Iowa pretty regularly at this point. Vivek Ramaswamy up and down. Trump rarely goes, sends his other people instead. Why?

AXELROD: Well, look, Iowa is, for Trump, a big win here is really, really important because he does face some peril in. And, you know, I think Trump's great opponent here is expectations he's going to win in Iowa. The question is what is the margin?

And all of them have to be thinking about that zero degree temperature night when the caucuses take place. It's not like an election. You have to pull people out. They have to come to a location and spend a great deal of time listening to people speak before they cast their ballots and so on. It's an organizational task. Trump's folks are out in the suburb, are out in the rural areas. His base, they're going to have to travel 10 to 15 miles.

So, there are reasons for Trump to be concerned about turnout, complacency, the weather. And so he is doing what is unnatural to him, which is to spend a concentrated period of time in this place to try and meet the expectations that have been set for him in this caucus so that he goes into New Hampshire without questions being raised about his strength.

HARLOW: David, as someone who's advised candidates in tough and tight battles, I wonder what that margin is. We keep hearing Trump has to have a big lead. What are the numbers to you, that would be a big Nikki Haley surprise, or even if it's second, and what does Ron DeSantis need to hit in terms of the spread?

AXELROD: Well, look, I think if DeSantis doesn't finish second, he's on his way back to Tallahassee on the next flight out. He has to finish second here. He really started out with the premise that he was going to win here. Now, just to go on, he has to finish second.

For Nikki Haley, I think any second place finish will be a momentum builder for her. She's already way in the hunt in New Hampshire, and that would be a bonus to finish second here in New Hampshire. A third would not be as good, but she still moves on. DeSantis won't.

And for Trump, I think he has to have a solid double-digit victory here, closer to 20 than 10. Any kind of single digit victory here would be a defeat and would create more questions about him going into New Hampshire, which our own poll shows is tightening up very quickly.

HARLOW: Yes, very tight.

MATTINGLY: Doug, can you explain the expectations game? Like it does matter. Missing the expectations, falling underneath them is problematic. And yet it's also this like amorphous thing that you can't really put. Who decides what the expectations are?

HEYE: Yes, everybody decides. And that's the challenge for politics. It's a very different business than anything else that we know. You can come in a strong third place and you can come in a weak second or even a weak first place. It's not like football playoffs or the NCAAs where you just win in advance.

But what we've seen is this is where debates and momentum can really cause a shift. We talked about Nikkimentum back in November, and it wasn't really true. Early December, it wasn't really true. But what we've seen in the past, say, two or three weeks, is a real surge in her fundraising and a surge in her poll numbers, especially in New Hampshire. That also means she has to answer not just more scrutiny questions but questions of can she handle the incoming from Donald Trump, also the incoming from Chris Christie? That's happening more and more.

HARLOW: It certainly is. David Axelrod, Doug Heye, thank know.

AXELROD: You know --

HARLOW: Yes, go ahead, Axe. Go ahead.

AXELROD: Okay. Now, I was just going to say she has money, she has momentum. What she doesn't have is organization here to the degree that the others do. And the question is, on a cold night, will her folks come out? And I think that will determine just how well she does here.

HARLOW: Maybe she should deliver parkas and snow boots.

MATTINGLY: Ankeny Ten, is that the word (ph)?

HEYE: Ankeny Ten, that's the one to look at.

HARLOW: Anyone that pronounces Ankeny correctly really knows Iowa. So, I appreciate that as a fellow Midwesterner. Thank you guys very much.

Don't miss tonight, 9:00 P.M. Eastern, Jake Tapper, Dana Bash, moderate CNN's Republican presidential debate live from Iowa.

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MATTINGLY: Well, there are concerns up and down the East Coast about high winds and potential flooding this morning, this after a dangerous storm system brought heavy rain, boosting river levels and triggered power outages. Multiple people were pulled from their vehicles on flooded streets in Maryland. Their last check, more than 600 U.S. flights have already been canceled today.

HARLOW: All of this unfolding as storm-ravaged Florida begins to clean up from more storm damage. It is believed at least a dozen tornadoes carved a path of destruction right along the Florida Panhandle.

CNN Meteorologist Derek Van Dam joins us live in Panama City, Florida. What happened there is just stunning.

DEREK VAN DAM, CNN METEOROLOGIST: Yes, 12 in the Panhandle, but nearly at two dozen tornadoes overall.

Look what happened to this truck as a waterspout-turned tornado moved on shore here in Panama City Beach. It looks like there was a can opener taking the metal and peeling it back. The pressure of the wind blowing out the driver's side window of this particular truck as well, and then, of course, this home behind me, that's a living room or what used to be a living room. You can see there's people's couch. Even the staircase leading up to the second floor of this home just left in shambles. Unfortunately, we are in this very hyperactive weather pattern across the United States, and Mother Nature just throwing everything she has at us. And the results have been, unfortunately, horrendous, which you can clearly see behind us.

And this is part of a broader storm that just ravaged the southeast with nearly 300 severe wind gusts, hurricane force across some portions of North Carolina, and then not to mention the destruction from the tornadoes.

Right now, we have over half a million people that are without power as we speak across the entire eastern seaboard. That's customers. Remember, that's not necessarily people. So, there could be several people to a household, for instance.

And winds will be concerning today across the eastern seaboard where we could see gusts over 50 miles per hour. That is a major factor with this storm because there is so much pent up energy that's being mixed down to the surface.

And the good news is the flooding rains that we had overnight moving offshore, but we still have our flood concerns along the coastline. And we want to give you a heads up on this, Poppy and Phil. We have yet another severe weather potential outbreak for Friday and Saturday across this same area in the southeastern U.S. So, yes, very, very difficult next couple of days ahead of us again.

MATTINGLY: All right. Derek Van Dam, thank you.

HARLOW: So, Donald Trump's legal team suggesting that even a president who had a political rival assassinated could still be immune from criminal prosecution.

MATTINGLY: And the CEO of Boeing acknowledging a mistake was made after part of its plane blew off in mid-flight on Friday. The latest on that investigation, ahead.

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TRUMP: I think they feel this is the way they're going to try and win. And that's not the way it goes. That will bedlam in the country. It's a very bad thing.

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HARLOW: A warning from the former president about what is to come if he is prosecuted for trying to overturn the 2020 election. His legal team arguing in a D.C. federal appellate court yesterday that the case should be dismissed entirely on the grounds of presidential immunity and that a president can only face criminal prosecution if he is impeached and convicted first by Congress, even hypothetically for things like assassinating political rivals. (BEGIN VIDEO CLIP)

UNIDENTIFIED FEMALE: I asked you a yes or no question. Could a president who ordered SEAL Team 6 to assassinate a political rival who was not impeached, would he be subject to criminal prosecution?

JOHN SAUER, TRUMP ATTORNEY: If he were impeached and convicted first. And so --

UNIDENTIFIED FEMALE: So, your answer is no?

SAUER: My answer is qualified, yes. There's a political process that have to occur under our structure or our constitution.

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MATTINGLY: A jarring moment, but also kind of an ironic one, if you recall, Trump's very own lawyers argued during his second impeachment trial that he could be criminally charged after leaving office.

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DAVID SCHOEN, FORMER DEFENSE ATTORNEY FOR PRESIDENTI TRUMP: We have a judicial process in this country. We have an investigative process in this country to which no former officeholder is immune. That's the process that should be running its course.

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MATTINGLY: Then it was an effective argument. We know that because several Senate Republicans actually voted to acquit based on that reasoning.

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SEN. MITCH MCCONNELL (R-KY): We have a criminal justice system in this country. We have civil litigation. And former presidents are not immune from being accountable by either one.

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MATTINGLY: Now, Jack Smith's legal team called the Trump team's argument frightening.

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JAMES PEARCE, ASSISTANT SPECIAL COUNSEL: If, as I understood my friend on the other side to say here, a president orders his SEAL Team to assassinate a political rival and resigns, for example, before an impeachment, not a criminal act. President sells a pardon, resigns or is not impeached, not a crime. I think that is extraordinarily frightening future.

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HARLOW: Whereas Trump's lawyers argued that allowing a president to be prosecuted for actions taken well in office would open up a Pandora's Box.

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SAUER: The notion that criminal immunity for a president doesn't exist as a shocking holding. It would authorize, for example, the indictment of President Biden in the Western District of Texas after he leaves office for mismanaging the border allegedly.

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HARLOW: Let's talk about all of this with retired U.S. district judge for the Southern District of New York, Judge Shira Scheindlin. Judge, thanks very much for being with us.

Would Trump's team have sold you on their immunity claim?

SHIRA SCHEINDLIN, U.S. DISTRICT JUDGE (RET.), SOUTHERN DISTRICT OF NEW YORK: Oh, absolutely not. The district judge got it entirely right. I read her decision. It's brilliant. It's well-reasoned. It's well- written and it's correct.

MATTINGLY: I think it was interesting when you listened to the arguments, the idea of impeachment and conviction being required beforehand wasn't a focal point of the briefs that were filed by Trump's team. It was a piece of it, but it wasn't entirely.

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Why do you think they decided to go that route, to focus on that?

SCHEINDLIN: I think they thought that the text of the constitutional amendment would be a winner for them. But as Judge Chutkan wrote, if you read the constitutional section carefully, it's just the opposite of what the Trump lawyers argued. It's just not. It has two clauses. And the second clause says, nevertheless, you can have a criminal prosecution. And that's what those senators said when they didn't convict him on impeachment.

HARLOW: Can we talk about that a little bit more?

SCHEINDLIN: Sure.

HARLOW: Because this came up a lot in the hearing yesterday, the impeachment judgment clause. That's what it is. I think that is foreign or was foreign to a lot of Americans until in the last 24 hours. Explain how central of a role it plays here now that they've gone this direction.

SCHEINDLIN: The only reason it's central at all is that Trump's lawyers tried to rely on that clause for their argument.

HARLOW: But you think they misread it?

SCHEINDLIN: Oh, totally. The clause simply says, here's the remedies on impeachment. It's limited to removal from office and disqualification from office. That's all it is. And then it says, nevertheless, you can be prosecuted criminally. So, that's really what happened here. There's nothing in that clause that says, unless you're convicted.

HARLOW: That's the bridge that was striking to me, that they tried to argue that that clause, then they could infer from it that it meant, you know, but if you're not, then you can't.

SCHEINDLIN: Right. But that's trying to read something into the clause that's simply not there. What the judge picked up in the district court was the word, nevertheless. She said that means that despite whatever happens on the impeachment side, there's still room and should be for a criminal prosecution as those senators said when they acquitted him.

MATTINGLY: We don't know what the judges are going to do. But you can -- that's fine. Your face is getting at what I'm going for here, but it's a read the tea leaves kind of moment, a little bit like the Supreme Court, but this one seemed pretty clear where this was headed. Is that fair?

SCHEINDLIN: That's more than fair. Sometimes when you watch an appellate argument, you can't predict. The judges are stone-faced. You can't tell from their questions. But I think this was very apparent. There is no way they're going to reverse.

The only question here is whether, for some reason, they decide they don't have the jurisdiction to decide this now, and it should be decided after the trial is over. But I don't think they're going to go that way. But they're considering it. It's clear to me, particularly Judge Henderson, is considering that. But she needs two votes, of course. And I don't see that happening.

HARLOW: We heard Trump's attorney making the argument, John Sauer say, at the end, in closing after his rebuttal, we want to make sure that if we don't prevail here, that this is heard en banc, meaning the whole appellate and all the nine justices, or at the Supreme Court. Where do you think this goes? The Supreme Court doesn't have to take it.

SCHEINDLIN: The Supreme Court does not have to take it and I'm getting to believe that they won't take it.

HARLOW: Tell us why.

SCHEINDLIN: It's not the right case to take for this important issue. It's too obvious here. They need a closer case, I think, to make important law like this. This one is so open and shut. I mean, these weren't even part of his official duties, clearly. So, I don't think it's the right case for the Supreme Court to take and they might not do it.

With respect to en banc, if he does that, it's solely for delay. If he loses with this three-judge panel and moves for en banc reconsideration, it's simply to run the clock. It's not going to change the outcome here.

HARLOW: Judge Scheindlin, thank you.

MATTINGLY: Thank you, as always.

Well, overnight, the U.S. Navy shot down 21 Houthi missiles and drones launched from Yemen in one of the largest Houthi attacks in the Red Sea in months.

HARLOW: Also, Defense Secretary Lloyd Austin revealing he has been diagnosed with prostate cancer. Our Dr. Sanjay Gupta is with us to help explain the diagnosis and its impact, particularly on black men.

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JOHN KIRBY, COORDINATOR FOR STRATEGIC COMMUNICATIONS, NATIONAL SECURITY COUNCIL: Nobody at the White House knew that Secretary Austin had prostate cancer until this morning, and the president was informed immediately after.

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MATTINGLY: Well, as National Security Council Spokesman John Kirby yesterday disclosing new information about the secrecy behind Defense Secretary Lloyd Austin's hospitalization.

Now, according to the Pentagon, Austin had been treated at the hospital on December 22 for prostate cancer and later readmitted on January 1st due to complications from that surgery.

HARLOW: The president was not informed of Austin's hospitalization for three days. And as you just heard from John Kirby, the president didn't even know about the cancer until yesterday.

This morning, we are learning that senior White House officials had to push the Pentagon to release a statement on Austin's hospitalization after learning of his status on Thursday.

We are joined this morning by our Chief Medical Correspondent Dr. Sanjay Gupta with much more about this diagnosis and what it means for Lloyd Austin, someone so crucial in government. Walk us through his surgery and complications, what we know.

DR. SANJAY GUPTA, CNN CHIEF MEDICAL CORRESPONDENT: Yes. Good morning, guys.

So, Secretary Austin, 70 years old, sounds like he was having screenings for prostate cancer. And on a routine screening, meaning he did not have symptoms or something, but just a screening, they found evidence of prostate cancer. That was in early December.

It sounds like it was early prostate cancer, meaning it was not particularly aggressive or had not spread at that point. And they decided at that point to do an operation. And they scheduled it three days before Christmas over the holidays, probably with the expectation that he'd have the operation, it would go well, he would go home the next day, which is exactly how things started to go with him.

But then he goes home, and this is now over the Christmas sort of time period, and he has these complications. He starts to have significant pain in his abdomen, in his hip and his leg, and eventually gets that checked out, goes back into the hospital. We're talking about New Year's Day now. And at first, they diagnose a urinary tract infection but realized this is more serious than that. He goes to the intensive care unit.

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At that point, they determined that he also has these collections of fluid in his abdomen that's sort of causing problems with his gut.