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U.S. Supreme Court to Hear Arguments Concerning Former President Trump's Access to Presidential Ballot in Colorado; Five Marines Found Dead after Helicopter Crash in California; Texas Border Town Residents Frustrated with Congress; GOP Faces Internal Backlash After Two Major Fails. Aired 8-8:30a ET

Aired February 08, 2024 - 08:00   ET

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

[08:00:00]

POPPY HARLOW, CNN ANCHOR: CNN THIS MORNING continues now.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: Trump engaged in insurrection and therefore cannot appear on the ballot.

SCOTT GESSLER, ATTORNEY FOR DONALD TRUMP: Frankly, President Trump engage. He didn't carry a pitchfork to the Capitol grounds. He didn't lead a charge.

MARIO NICOLAS, ATTORNEY ATTEMPTING TO BAR TRUMP FROM COLORADO BALLOT: This case, which I think a lot of people saw as kind of a longshot case, actually, legally and factually is a very strong case. We have every expectation that the Supreme Court will take this very seriously.

(END VIDEO CLIP)

HARLOW: Good morning, everyone. So glad you're with us. I'm Poppy Harlow with Phil Mattingly in New York. A very consequential day. We are now just two hours away from the Supreme Court colliding head on with the presidential election. The justices will hear arguments in a massively consequential case today. Can Donald Trump be thrown off the ballot for his role in the deadly January 6th attack on the Capitol? That question has now made its way all the way up to the highest court in the land after Colorado's Supreme Court ruled that Trump engaged in an insurrection and was therefore disqualified from being president again under the 14th Amendment which bars insurrectionists and those that help them from serving.

PHIL MATTINGLY, CNN ANCHOR: There are some key questions the Supreme Court is facing today. Does the 14th Amendment apply to Trump and the presidency? It was ratified after the Civil War to block ex- Confederates from holding office. Another central question, did Trump, in fact, engage in an insurrection?

HARLOW: We all saw the blood attack on the Capitol when a mob of Trump supporters beat police officers and stormed the building while Congress was certifying Joe Biden's election victory. In its ruling, the Colorado Supreme Court cited Trump own words at a rally right before the insurrection.

(BEGIN VIDEO CLIP)

DONALD TRUMP, FORMER U.S. PRESIDENT: We're going to walk down to the Capitol.

(APPLAUSE)

TRUMP: You'll never take back our country with weakness. You have to show strength, and you have to be strong.

We fight like hell. And if you don't fight like hell, you're not going to have a country anymore.

(END VIDEO CLIP)

MATTINGLY: It is a very significant day. We have team coverage throughout the day. Kristen Holmes is at Mar-a-Lago. Let's start things off with Katelyn Polantz in Washington. Katelyn, when it comes to what we're going to be listening to today, what are the key points? And how big of a test is this for Chief Justice John Roberts?

KATELYN POLANTZ, CNN SENIOR CRIME AND JUSTICE REPORTER: This is one of the days and one of the cases that will define the Roberts court going forward. It's not just John Roberts, though, up there with the other justices asking questions today. They all will be grappling with the history of the 14th Amendment, how it came to be after the Civil War, an insurrectionist ban saying that people could be ineligible to voted for or on ballots if they took part in insurrection. They also will be looking at the future, the future of the presidency and that office, how to define that office. and they will look at the Constitution, of course, what it says about the presidency.

But if you step back for a second, Phil and Poppy, there's a big question here that both sides have to tackle. Can states do this? Can Colorado make the decision within themselves by their Supreme Court? And can other states do similar things to take a candidate off the ballot? In this case, Donald Trump on the 2024 primary ballot in Colorado. Trump's attorneys say if states can do this, it will unleash chaos and bedlam across the country.

There are others, voters from Colorado as well as the secretary of state, Jena Griswold in Colorado, who will be arguing that, yes, Colorado can do this. They can apply the law in this way if they choose. There have been lots of people who have popped up in the court already to submit their portions of the arguments, what are called amici briefs. And in those briefs, there are people like other states saying, please, Supreme Court, clarify this somehow so that we all know what to do across the country. This isn't just about Colorado.

But as we watch the justices today, they're going to look at these really big questions. One person up there, Ketanji Brown Jackson, she previously has had to deal with January 6th rioters when she was on a much lower court. And one thing that she was saying at the time was that "If there was a more serious offense in terms of who we are as a society and the democratic order that is at the core of our constitutional scheme, I don't know what is." That is her commentary on the insurrection of January 6th. I will watch closely to see if the justices go closely to that idea of insurrection and if Donald Trump can apply or be called an insurrectionist in this case.

HARLOW: That's a really interesting point about what she said in previous cases.

Kristen, to you, I think we just learned that Trump is going to speak today from Mar-a-Lago, is that right? He won't be at the Supreme Court. But what's your reporting on what he will say today?

KRISTEN HOLMES, CNN CORRESPONDENT: Good morning, Poppy and Phil. We're not sure what he is going to say, but we are sure that he is going to make some kind of remarks from Mar-a-Lago, and of course, we will be covering that.

[08:05:04]

This is in marked difference from what we have seen in several of his other civil cases. He has been up in New York for the E. Jean Carroll defamation case as well as for that New York civil fraud case. He is actively not attending the Supreme Court case. And I'm told by advisers that this in intentional, that Donald Trump knows how high the stakes are.

I'm also told by some advisers that there were some people who didn't believe that Donald Trump's outbursts in court, his storming out of the court, were helpful to him in either of those cases. But all in all, it is clear the legal team is taking a different approach to this. They were in moot court for two days practicing their remarks. We also know that they were in constant touch with the former president, going back and forth. And it wasn't a formal decision until yesterday evening that Donald Trump was definitely not going to come. But they have all agreed, again, that it was better for him not to be in the room, and not for that strange dynamic as well. He would look at a bench of which he appointed one-third of the justices sitting there.

The other thing to note is that this is still the juggling act we are seeing between the politics and the legal, because after he delivers remarks, he is getting open a plane and going to Nevada where he is expected to win the caucuses there. So again, all of this juxtaposition, all of this coming together at once. But I would say the one takeaway here is that it is clear they are trying a different approach to these Supreme Court arguments, to the highest court in the land.

HARLOW: It's going to be so fascinating. Kristen, Katelyn, thank you both. We'll see you throughout the day during our special coverage.

Now this -- Trump's attorneys have argued that removing his name from the state ballot would, quote, disenfranchise millions of Americans. But listen to what one of the opposing attorneys who will be at the court today told our friend and colleague Erin Burnett. Listen. (BEGIN VIDEO CLIP)

SEAN GRIMSLEY, ATTORNEY ATTEMPTING TO BAR TRUMP FROM COLORADO BALLOT: This is the furthest thing from anti-democratic. Last time President Trump was on the ballot, he ignored the will of 80 million U.S. voters and summoned a mob to attack the capitol during the peaceful, otherwise peaceful transition of presidential power. Section 3 of the 14th Amendment is one of the few self-defense mechanisms that the Constitution has to ensure that our democracy remains viable.

(END VIDEO CLIP)

HARLOW: Joining us now is Trump's defense lawyer during the second impeachment trial, David Schoen. He's also Steve Bannon's attorney general I really appreciate you being here. I should also just note as a point of fact, you have been arguing cases like this for a long time, not exactly the same, but about access to being on the ballot. You have also at one point represented the national Democratic Party. I'm glad you are here this morning. You say you can guarantee Trump prevails. Why?

DAVID SCHOEN, TRUMP'S DEFENSE LAWYER DURING SECOND IMPEACHMENT TRIAL: Well, Trump will prevail in the case. If civil libertarians have their way, in my view, every civil libertarian ought to support his position. It's a matter of process. There are fascinating arguments. Katelyn mentioned them earlier, textual arguments about whether it applies to a president or vice president since they are not named. Whether a president is an officer. There's an 1888 case, 2010 case that suggests they are not. Those kinds of arguments are interesting.

But to me, the 14th Amendment itself requires that it be overturned. It's a matter of due process. The 14th Amendment incorporates the Fifth and Sixth Amendment, principles. So for example here, either Section 3 is self-executing or it isn't. We have this Griffins case from 1869 that says it isn't, that it requires federal legislation in order to apply this section.

Whether that's required or not, he was being -- using this section to circumvent his civil rights is inappropriate. What I mean by that is this. We have a federal statute, insurrection, 18-USC-2383. They had every opportunity to charge him with that. They never did. They never even presented to a grand jury because they couldn't make out probable cause. If they had, he'd have all of the Fifth and Sixth Amendment rights available, right to jury trial, burden of proof beyond a reasonable doubt, all of those rights. He doesn't have those with just a made-up process here.

And then who decides? Is it just a non-lawyer in Maine, secretary of state? Is it a judge in Colorado? That's a matter of due process, to get notice of what the charges are, what the mens rea is, all of those things. So I say as a matter of process, it's an easy case, and every civil libertarian ought to hope that the Colorado decision is overturned.

HARLOW: A couple of things, David, and I find this a fascinating argument as well. When you talk about enforcement, there's Section 5, obviously, and we're going to see how that plays out, that Congress is the one that has the power to enforce. That would be against the argument of self-execution. But the other thing that is really interesting to me is the Colorado Supreme Court had a finding of law. But then they had a finding of fact. And their finding of fact was indeed he did engage in an insurrection. Do you think the Supreme Court takes up that argument at all, that this was or wasn't engaging in an insurrection? Or do they bypass that?

[08:10:04]

SCHOEN: Very interesting question, a great question, and all of yours always are. First of all, what troubles me most, I think, in the Colorado decision about its finding of fact is that it relied on the January 6th Committee report. I feel very strongly that committee is a partisan committee that was ethically checkered in the first place.

But again, who makes the finding of fact, and under what standard? That's the problem here. What's the definition of "insurrection"? Is it just a single judge who decides and makes these findings of fact? I don't think the court has to get into the finding of fact that was made and overturn that finding of fact. I don't think they have to determine, did he engage in insurrection or not? In my view -- go ahead.

HARLOW: That's really interesting. What I find to be the most interesting but potentially the most perilous argument that Trump's team of lawyers is making in this is that the language only bars someone guilty of this from holding office, not from running for office. But if Trump were to win, do you think that's a wise road for them to go down today?

SCHOEN: That may be the best question of all. I'm shocked that they raise it. A good lawyer recognizes that not every textual or other argument that's available ought to made. In this case, there's an amicus brief that makes it also, and that may be appropriate for an amicus to make. It's an interesting argument, and that is a finding from the textual language.

But why on earth would President Trump's team want to argue that? So that he wins the election and then afterwards they reinitiate this whole process of trying to bar him from holding office, and they say, your lawyer said that that's what the language provides? I don't believe for a second that President Trump approved that argument to be made.

HARLOW: Tell me how you would argue this case, David.

SCHOEN: On the process issue, frankly. I think that that's an issue all sides ought to coalesce around. Nobody in this country wants someone to -- the voters either to lose their First and 14th Amendment rights to vote for a candidate of their choice, or a candidate to stand for election based on a finding by a random state. We know from the 1983 case, Anderson versus Celebrezze, landmark ballot access case, that states have a lesser interest in national elections because their action affects what goes on in the country. So I would argue it on the process question, a matter of due process. You don't have to look beyond the 14th Amendment to know that this is a denial of rights by circumventing the safeguards that would be if he were charged under 2382. He wasn't. I think the case ought to be overturned 9-0.

HARLOW: Come back tomorrow if you can, David. I would love to hear what you think after we hear the arguments today. Appreciate your time.

And about the arguments today, everyone should listen. We will carry it all live right here on CNN as the attorneys argue before the nation's highest court. Join Jake Tapper, Kaitlan Collins. Special coverage begins in less than an hour.

MATTINGLY: We do have breaking news on a story we have been talking about this morning, marines missing after a military helicopter crashed in a forest in southern California while on a flight from Nevada. Let's go straight to CNN's Natasha Bertrand live at the Pentagon. Natasha, what more are we learning right now?

NATASHA BERTRAND, CNN WHITE HOUSE REPORTER: Yes, sad news from the Marine Corps, Phil. We are learning that these five marines who were traveling in that CH-53 Super Stallion helicopter from Nevada to California on February 6th, that helicopter crashed. They have been confirmed dead by the marines.

This is the statement they released, "To the families of our fallen marines, we send our deepest condolences and commit to ensuring your support and care during this incredibly difficult time."

This search and rescue operation had been hampered by very difficult weather conditions, according to sources who spoke to us yesterday. And ultimately, they were able to reach the crash site. They found the helicopter in Cleveland National Forest, which is just outside of San Diego. But ultimately, they did find those five marines and have now confirmed they were deceased.

The CH-53 helicopter has been involved in a number of incidents over the last decade, at least three, including one in 2018 that was fatal. During the training mission, the same type of helicopter, the same model, it crashed in California as well, and it killed all of the marines on board. So surely there will be some questions raised about the safety history of this helicopter and whether there needs to be any additional investigation into this model. And of course, there's probably going to be as well a full investigation of what went wrong here. But clearly, a very sad day for the Marine Corps, Phil.

MATTINGLY: Tragic, without question. Natasha, to that last point, is there a regular process that is in place for those investigations to occur over the course of the coming weeks and months? Or is that something that will need to be ordered and announced later?

BERTRAND: Typically, when these kinds of incidents occur, they do a full investigation, of course, of what happened. Was it pilot error? Was it something that went wrong with the helicopter itself? For example, when we saw the grounding of the entire Osprey fleet that the U.S. military uses, that involves a full investigation of what has been going on with that particular aircraft to determine whether it is safe to fly.

[08:15:00]

So, I expect to see a similar kind of probe being conducted in this instance as well.

MATTINGLY: All right, Natasha Bertrand from the Pentagon, thank you.

Well, the border deal in the Senate, it's officially dead. Now people living near the border, they wonder what's next.

(BEGIN VIDEOTAPE)

ED LAVANDERA, CNN SENIOR NATIONAL CORRESPONDENT: Do you feel like you're kind of helpless as that toxic politics continues to rage in DC over this?

BYARD JONATHAN, EAGLE PASS, TEXAS RANCH OWNER: It's frustrating. There's two different politics working against each other.

(END VIDEOTAPE)

(COMMERCIAL BREAK)

MATTINGLY: In just about an hour, Senate Republicans are going to hold a closed-door meeting to discuss how to move forward after blocking the sweeping bipartisan border and foreign aid package on the Senate floor.

A Senate procedural vote is expected today on a slimmed down version of that foreign aid package with the border portion stripped out entirely.

That new deal, it is opposed by Republicans who are against additional aid for Ukraine.

All of this dysfunction has Texas border towns and its residents extremely frustrated and confused as to why politicians aren't willing to work together to pass legislation that would resolve or at least help the migrant crisis.

CNN's Ed Lavandera is live for us in Eagle Pass with more.

Ed, this is an important story, talking to actual people, not the fighting back and forth and hyperbole from the politicians in Washington. They're actually on the ground there. What are they telling you?

LAVANDERA: Well, they feel it the most directly and the fastest compared to anyone across the country.

Now, Eagle Pass has garnered outsized attention in this border battle. It's a small city along a 1,900 mile US southern border with Mexico.

[08:20:07] But the prominent feeling here, Phil, is that this city has been

turned into a stage for political theater, and people are tired of watching that show.

(BEGIN VIDEOTAPE)

LAVANDERA (voice over): The edge of Byard Jonathan's (ph) Eagle Pass ranch stretches along three-and-a-half miles of the border, looking into Mexico. Thousands of migrants have come through here. The remnants of discarded clothing are everywhere.

Texas authorities have installed miles of fencing and stretches of razor wire.

You're on the frontline of this crisis here on the Rio Grande.

When you see what it looks like around here, what do you make of it when you come out here?

JONATHAN: I mean, it's a bad situation. It's a horrible situation.

LAVANDERA (voice over): But what Jonathan mostly sees is a lot of politicians not willing to work together and doesn't understand why lawmakers can't pass legislation to resolve the migrant crisis.

LAVANDERA (on camera): Do you feel like you're kind of helpless as that toxic politics continues to rage in DC over this?

JONATHAN: It's frustrating. There's two different politics working against each other. We have one side saying that they want to do it one way and one side saying they're going to do it another and that's that separation that we have to come together.

LAVANDERA (voice over): Eagle Pass has become the epicenter of the political battle over border security, the stage where the Texas Republican governor is in a showdown with the Biden administration and federal immigration authorities.

ROSA ARIANO, FORMER CUSTOMS AND BORDER PROTECTION AGENT: How long are we going to be going like this?

LAVANDERA (voice over): Rosa Ariano (ph) worked as a Customs and Border Protection agent for 14 years. She's become a local Republican Party activist and is frustrated by the gridlock.

ARIANO: If we're still going to be on opposite extremes that the Republicans' my way or the highway and the Democrats are the same way, we are not going to get anywhere. We're just going to keep getting Band-Aid fix after Band-Aid fix that's going to happen.

LAVANDERA (voice over): Ariano says the border security measures in the Senate bill would have been a temporary fix at best, while the smugglers would have figured out new ways to get migrants across the river.

LAVANDERA (on camera): The Border Patrol union is supporting it. ARIANO: Yes.

LAVANDERA: Wouldn't you argue at this point, given the situation that something is better than nothing?

ARIANO: Should we settle for a Band-Aid instead of a permanent, good fix to the issue that has been going on administration after administration?

The way I see it is, it is like, it doesn't take a rocket scientist to go ahead and figure this out.

(END VIDEOTAPE)

LAVANDERA (on camera): And Phil, you know, the local state Democratic representative wrote a letter to Speaker of the House this week saying that the gridlock in Washington is basically leaving cities like Eagle Pass left to dry and put on the backburner.

So a real sense of the frustration growing along here in border communities.

HARLOW: And Ed, what a piece again, from you, as usual. Thank you very much.

MATTINGLY: Well, it's worth noting that tanked border bill, it's just one of a recent string of legislative losses for Republicans that puts very clear dysfunction, self-immolation on some level in our nation's capital on full display.

Earlier this week, we saw the failed impeachment effort against Homeland Security Secretary Alejandro Mayorkas.

HARLOW: It marks to top GOP priorities that did not cross the finish line this week. Republican lawmakers, frustrated to say the least.

(BEGIN VIDEO CLIP)

REP. TROY NEHLS (R-TX): We may have the gavel, but we're not acting like when the majority.

REP. LANCE GOODEN (R-TX): I was embarrassed for our conference, for our party, because we can do better than we did last night.

REP. RALPH NORMAN (R-SC): And as bad as bad, as Pelosi was, she knew her votes before it took place.

REP. STEVE WOMACK (R-AR): When you have the majority, there is an expectation that you will be able to govern, and we've just struggled with that over and over again.

SEN. JAMES LANKFORD (R-OK): But we've got to sit down together, figure out how we're going to solve problems, because the American people sent us here to do that.

(END VIDEO CLIP) HARLOW: With us now, CNN political analyst, Natasha Alford and CNN

political commentator, Scott Jennings.

Scott, what is going on with Republican leadership?

MATTINGLY: Good luck, Scott.

SCOTT JENNINGS, CNN POLITICAL COMMENTATOR: Well, hey, good morning.

HARLOW: Go.

JENNINGS: Let me just don't unravel this in 30 seconds.

I mean, I think the bottom line is, is that politics is a team sport. And right now the Republicans aren't acting like very much of a team. I mean, there's a lot of divisions over policy in the conference.

There's a lot of personality divisions, there's a lot of jockeying. There's a lot of ego. And all of it, of course, is getting in the way of making progress.

Now, you know, I don't think the failure of the border bill is as catastrophic as some have portrayed. I mean, it's not the first time a bill has failed in Congress and it certainly won't be the last, and they may yet get there on the foreign aid supplemental today, which would be I think, a step in the right direction.

But the fact remains, there are huge policy divisions in both conferences, and there are huge tactical divisions. And right now, these Republicans are frankly at each other's throats, I think, behind the scenes about how to proceed and it's leading to these sort of messy public outcomes or lack of outcomes.

MATTINGLY: Natasha, to that point, you know, we've been talking about James Lankford all week. I've covered him for a long time.

[08:25:02]

He is a conservative attempting to govern as a conservative understanding that the Senate is led by Democrats and the White House is occupied by a Democratic president.

When it comes to the rest of the party, I'm not totally sure if there's a centralized theory of the case when it comes to policy governing ideas.

NATASHA ALFORD, CNN POLITICAL ANALYST: Yes, and this is where I actually agree with Scott about Republicans being at each other's throats.

We watched that package where Americans, those people interviewed by Ed Lavandera are saying, oh, this is about both sides not coming together wanting to do things a different way. No, this is about Republicans blocking an opportunity where there was bipartisanship, where Democrats actually compromised.

Democrats didn't get everything they wanted in that bill.

HARLOW: They didn't get a lot of what they wanted.

ALFORD: Yes, and they were willing to compromise for the good of the American people. So when Americans say they're disillusioned with government, they don't trust the government to do what is in the best interest of the country.

We've seen that faith declining. This is why.

HARLOW: Just one note, not all -- not all Democrats are on board with this.

ALFORD: Yes.

HARLOW: Some others thought it wasn't progressive enough, but I hear your overall argument.

Scott, what can you -- you are the Mitch McConnell whisperer. Is it fair for me to call you that?

JENNINGS: Sure.

HARLOW: What is your read on what is happening to Mitch McConnell in terms of his influence and his future?

JENNINGS: Well, the conference has changed a lot, obviously, over the last couple of years. And he did when he ran for leader this last time, he did have a challenge to his position.

Now, he easily dispatched that and the people that you see commenting about him in the press today are the same ones who voted against him before, ran against him before, so it's essentially the same faction.

But the overall issue is true and that is that the Republican conference has moved a lot and has changed a lot in terms of the policy interest. And a lot of that is, of course, driven by the policy views of Donald Trump.

So particularly when it comes to Ukraine, I think there's probably 15 to 20 Republicans available to help move this foreign aid package forward, but that's different than it would have been two, four, or eight years ago.

And so, you know, he's presiding over a conference that is experiencing the same flow in terms of policy preferences that the party at large has experienced and we see that on display, really, with this vote on funding the war on Ukraine.

Of course Johnson has got it just as bad in the House. I mean, he's got a lot more intransigence on foreign aid in the House, I think, than even McConnell has in the Senate, but this debate within the party is raging, really, in both chambers and really all over the country.

MATTINGLY: Yes, and Scott, you make an important point. The conference has moved in a different direction than Leader McConnell, and you lost Roy Blunt and you lost Rob Portman, and you lost that crew of what the Republican Party used to be both ideologically and from an institutional perspective, frankly, it became more like the House with actual House members.

And when it comes to the House, if you're Natasha, Mike Johnson, do you want to do this anymore? Is there anybody better? Like people -- what I'm trying to figure out is, I don't understand why they would want to replace him. A challenge makes no sense whatsoever.

ALFORD: I think Mike Johnson knew what he signed up for and he took that opportunity, knowing who he was dealing with, right? Knowing who was actually pulling the strings in terms of who would be in charge.

You know, he's talked about being on the phone with Donald Trump a lot these past few weeks, and that is the reality. This is Donald Trump's party. He is pulling the strings from behind the scenes. And all of this results in people who are disillusioned.

Again, I really think that this was a missed opportunity for the Republican Party to do the right thing. If you have faith in your policy vision for America, you could allow the Biden campaign to have a win on immigration and say we still have a better vision on the economy, right, on all of these other things.

But I think it reflects a lack of faith in themselves that they think they need to tank this opportunity to move the country forward just so they can have a win in November.

HARLOW: Interesting.

MATTINGLY: Natasha Alford, Scott, I'm going to need you to forward me all the e-mails from McConnell while razzing you about your new nickname of McConnell whisperer, but I'd like --

HARLOW: Don't hold your breath, Mattingly.

MATTINGLY: Thank you, guys, very much as always.

JENNINGS: Thank you.

MATTINGLY: Well, new information in the investigation into whether President Biden handled -- mishandled classified documents. What we're learning about that special counsel probe?

HARLOW: Also, people in Iceland are waking up to an erupting volcano for the third time since December. Lava is glowing so bright that people 30 miles away can see it.

Overnight, authorities evacuated the popular Blue Lagoon Geothermal Spa because of this, a nearby town already evacuated. So far, no one luckily has been hurt.

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