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Supreme Court Justices Hear Case Of Website Designer Who Doesn't Want To Work With Same-Sex Couples; Plaintiff In SCOTUS Case Speaks Out; SCOTUS Conservatives Seem To Side With Website Designer Who Doesn't Want To Work With Same-Sex Couples; Georgia Candidates Makes Their Last-ditch Effort; Moore County's Power Grid Targeted; Mauna Loa Continues To Spew Lava. Aired 10-11p ET

Aired December 05, 2022 - 22:00   ET




LAURA COATES, CNN ANCHOR: Well, good evening everyone, I'm Laura Coates, and this is CNN TONIGHT. Free speech, religious liberty and the right for same-sex couples to not be discriminated against, well, they're tied up in a case before the Supreme Court this very day. And the big question everyone is asking and certainly those justices were asking today is, does a graphic designer have the right to refuse to create websites that celebrate same-sex weddings based on her own religious beliefs? Just a moment I'll talk to the plaintiff in that very case.

Plus we are, if you haven't noticed, just a few hours away from yet another Election Day, I told you, between election season. And the final election day of the midterms is upon us tomorrow, and it is really down to the wire now. In less than just nine hours, voters will be going to the polls in Georgia's Senate runoff between Democratic Senator Raphael Warnock and Republican challenger Herschel Walker.

Let's get right to the Supreme Court case right now. I'm joined by the plaintiff, website designer Lorie Smith, and her lawyer, Kristen Waggoner. Ladies welcome to the program. I'm glad you're both here.

I have been really curious about this case, as so many people have. And, frankly, there's been a little divide about this issue in the sense of who can tell who what to do and what they can do about it. It's kind of the old question of the time.

And I want to start with you, Lorie, and really understand your position a little bit more, but this is not a case that was filed against her. This is not somebody who is suing you. This is almost a proactive opportunity you're taking, I understand, to figure out, look, can I expand to the wedding website business and not run afoul of Colorado's law that says you cannot discriminate against same-sex couples. Tell me about why you wanted to bring this case now before you actually even entered the wedding website business, really.

LORIE SMITH, PLAINTIFF IN 303 CREATIVE LLC V. ELENIS: Sure. Well, I am a custom graphic and website designer. I create unique one,-of-a- kind websites and speech. And, yes, I want to design for weddings and I want to design in a way that is consistent with my faith. But Colorado is censoring a compelling my speech and forcing me to create custom artwork, custom expression that goes against the core of who I am and what I believe.

So, everyone has the right to not only speak but to create consistently with what they believe, and at the core of my case is just that. Everyone should be free to create artwork, unique artwork. That goes along with what they believe, whether their views or similar to mine or perhaps different on the topic of marriage. Nobody should be forced to create a message that goes against the core of who they are.

COATES: The words I'm hearing that's standing out are custom, create, art and speech. And those four really combined to be the heart of this entire issue.

On the issue of custom, just so we are clear, these aren't templates that you are putting out. Somebody has to, essentially contract with you specifically. And they have a provision of how they want to have to go. And then you create that per couple or per customer. Is that right?

SMITH: Absolutely correct. Everything a great is unique, one-of-a- kind, no two graphics or websites are the same, they're unique nature and everything that I create his expression of some sort. I have clients from all different walks of life. I have clients who identify as LGBT. But I cannot create every message that is requested of me. There are some messages I can't greats now matter who requests them. And the state of Colorado is saying you must set aside your beliefs to communicate a message that goes against what you believe. That should be frightening to all of us. Nobody should be forced to communicate a message that goes against the core of who they are.

COATES: Who has forced you to do that?

SMITH: Well, the state of Colorado has said, if you create custom artwork that is consistent with your faith, the you must set aside your faith to create websites that promote a message about marriage that goes against my beliefs. Nobody should be put in that position.

And so, my case is not only about me and my artwork but also protecting LGBT artists or graphic designer who should not be forced to create customer artwork that opposes same-sex marriage.

COATES: So, no one -- just so I'm clear, no one has yet asked you to create a website for a same-sex couple? You're talking about this as a speculative notion, that it might happen one day and you don't want to --

SMITH: That's not --

COATES: So, someone has asked you?

SMITH: I have had requests for same-sex --

COATES: And what have you done?

SMITH: I am unable to enter the wedding industry because the Colorado law would come after me and treat me in a way that is consistent with the way it has treated at the people of faith.


So, I took a stand to not only protect my right, but the rights of everyone. Everyone should be free to create artwork consistent with what they believe. And so I shouldn't have to sit around, and wait to be punished to really challenge this unjust law in Colorado.

COATES: And just thinking about this, and I want to bring you in here, Kristen, because as you can imagine, there were -- and I'm sure you heard today, so many people, and we're talking about different analogies, and the slippery slope, as they say, the idea of, well, if they let you do this, then we have got to let everyone else do something that is going to, in some way, harm people discriminatory.

What do you make of the idea that, look, if Colorado, or the Supreme Court really were to say now, you are an artist, I appreciate that, but if you avail yourself to the public, generally, you can't then turn down certain people, because if you do, others will follow in terms of religion, in terms of race, in terms of disability. What do you make of that connection to your client that this could cause a slippery slope?

KRISTEN WAGGONER, CEO, PRESIDENT AND GENERAL COUNSEL, ADF: No matter how the court rules in Lorie's case, it's still illegal to turn someone away because of who they are. The critical distinction that the justice has made today in the case is that it is based on what the messages, not who the -- or it's based on the message and not who the person is. Lorie has LGBT clients, she is always looking at the message. Every graphic design artist, every artist and speaker wants to have the right to make distinctions based on message. And even the United States in the court agreed with that premise. The government had compel you to say some that you don't believe.

COATES: So, the question really is how is it your message if it is their wedding.

SMITH: Everything that I create is unique and one-of-a-kind. And there's an important process of determining what the message or messages are that I'm being asked to create. And, again, I'm carefully considering what those are. It is always about the message or messages, never about the individual. But then I'm using a custom, we're not talking about templates, plug-and-play.

I'm creating from scratch, very much like traditional watercolor artist uses a white canvas. I'm starting from scratch and creating custom artwork, lettering, words. I'm telling the story in a way that I think is artistic and creative, creating imagery, photo, everything from start and that is custom and unique, and it is speech. Everything that I create is expressive. And Colorado agrees that what I create is speech. COATES: Well -- and I want to hear you talk, but there is that a moment, Justice Amy Coney Barrett, of course, seemed to talked about the strongest part of your argument was the idea that being related to custom, you can imagine if it were a template, a very different scenario probably ensuing at that point in time.

I know you wanted to make point. I am curious though in terms of -- you mentioned LGBTQ-plus people would be protected as well in terms of what your vision is and that they would not have to create things that they were opposed to as well. Do you think that members of the LGBTQ- plus committee believe that you message is actually promoting what they would stand for as well? Are you taking the step back and saying, look, this is about free speech broadly. You keep focusing on the message. Is that what you think the message is, that as long as you have LGBTQ clients, as long as you are an artist, that you are allowed to not follow that particular law?

SMITH: I serve everyone. I cannot create every message. And what the law is saying is that you have to speak a message that's approved the government. That should be concerning to all of us. Everyone should be free to create unique expression, artwork, that is consistent with what they believe. And that protects me, it protects LGBT website designer. Nobody should be forced to create message, custom, artwork expression that goes against a belief, whether those beliefs or similar to mine or different.

COATES: So, when there is -- there are people who are obviously married and are in same-sex relationships, and I know I want to jump in here and let you in this conversation, of course. What do you say to the rhetoric that says, look, this is discrimination? You have a product but you just don't want to sell it to me because I'm a same- sex member of a couple?

WAGGONER: Because a product isn't the same as speech. And, certainly, public accommodation laws apply to millions of transactions every day, but when we're talking about asking someone to use their heart, their head and their hand to imagine and create a message using traditional blending art with technology, that's speech. That is not just a product.

And just as the LGBT designer doesn't want to have to celebrate same- sex marriage or a pro-abortion photographer doesn't want to have to film or photograph a pro-life rally, we all should have the freedom to decide what ideas are worthy of expression. It is the what, not the who. That is a critical distinction.

We all can make message-based distinctions. The First Amendment has protected that for a hundred years and should continue to do so for all of us.


That is how we have a free and stable government. It is how we have free and fearless reasoning. The government can't tell us what to say and to do. COATES: That seemed to be just as gorgeous as position, the idea of the what, not the who. But I do wonder, at what point can someone say, I am an artist and not really be one? My question really is what is art? I mean, obviously, the disparaging art form. I had a wedding website. I understand it. It is a whole thing. I know you are an artist.

But what is to distinguish to from somebody saying, well, you know what, look, my macaroni and cheese in this restaurant is a work of art, this pie is a work of art, the way that I make my clothing in this boutique, works of art.

So you know what, I don't want somebody in here who's gay, who's black, who's Jewish, who's disabled. What is the line that distinguishes, say, you from the artist that somebody could, under the auspices of saying they are an artist do the same thing? Do you have those concerns?

SMITH: Well, I can only speak to myself, and I have made it clear, I work with everyone. I have clients who identify as LGBT. And what I'm seeking is that the court step in to protect everyone's right to speak freely.

WAGGONER: The court has already determined these tests. Every free speech case determines whether it's speech or conduct. The law is well-established to determine that. Is a message being communicated? Is it in the medium that we're used to seeing what we know words, text and graphics? That speech.

If we're talking about some macaroni and cheese dish, that is not speech and that is an easy call for the court to make. And they've been making those calls for many, many years under the First Amendment.

COATES: You haven't had a mac and cheese, first of all, so you don't know what it says to you. But, in reality -- I mean, I know we're out of time, but I really -- I want to hone in on this point because you've made this point a couple of times about the idea of having LGBTQ clients. Have they expressed a reaction to what you are doing and are they supportive or not?

SMITH: Well, I've been in business for over a decade and I have had clients who identify as LGBT for quite some time. I think it's important to note that there are people across the spectrum who hold the same view as marriage, who hold a different view on marriage, who are standing up to support this case. Because they recognize that everyone should be free to communicate and create consistent with what they believe.

COATES: So, you've created websites for -- I'm curious about that notion. Where you creating work that was somehow intersectional with their identity or sexual orientation?

SMITH: I have clients who identify as LGBT who are small business owners, who are realtors. And, again, when I receive a request, I'm always looking at what messages they are asking me to create through my custom artwork. Is it something I'm passionate about? Do I have expertise to actually create what they are hoping all create? And is it consistent with my faith?

COATES: So, you've stopped short of the wedding. That is essentially the point.

SMITH: I haven't been able to step into the wedding industry because the state of Colorado has made it clear they will come after me. And so I'm asking the court to step in and make this right.

COATES: Last question to you, that is where things stand right now. I mean, obviously, this is a case where people might say, well, hold on, why are we even here right now? This is not quite yet an issue. She hasn't entered the business yet. What is this about? And I believe you were the attorney for the Colorado baker as well in the past. Is that right? And so would look at this and say, are you simply trying to use a client to -- not in an unethical, it's not what I mean, but an opportunity to re-litigate that particular case through this new medium?

WAGGONER: Absolute not. In fact, Lorie's case was filed before Jack Phillips' Masterpiece Cake Shop case even went to the Supreme Court. And now that she has seen the punishment that's been oppose on him. He's in his tenth year of litigation right now.

Colorado is the most aggressive state in this nation to enforce their law and impose fines and reeducation against like-minded speakers like Lorie. So, she has the right to go to court rather than to violate the law and allow to state prosecute her. That's what our justice system provides.

COATES: Well, we will see what happens. The Supreme Court is known to be very quick. We'll have an answer tomorrow. No, not at all. Stay tuned. Thank you for being a part of this conversation. It's important to hear what you were thinking and the why. I appreciate it.

SMITH: Thank you.

COATES: So, what will the impact of this case be and how do you swear Americans' rights to freedom of speech, freedom of religion and freedom from discrimination? We'll talk about it next.



COATES: All right. You just heard from the plaintiff in the case that everyone was talking about. It's gone all the way to the Supreme Court, the website designer who wants to start a business, repeat, wants to start a business, to celebrate weddings, but doesn't want to work with same-sex couples in terms of a marriage website. And just as you are more concerned, they seem to be pretty sympathetic to the plaintiff's arguments.

Let's talk about it now with Ian Millhiser, Senior Correspondent for Vox, Conservative Commentator Carrie Sheffield and Chris Geidner, Editor and Author of Law Dork. I'm not calling one. I'm just saying that's what you are -- just so we're clear, everyone.

IAN MILLHISER, SENIOR CORRESPONDENT, VOX: I've known this guy for a long time. It's accurate.

COATES: All right. Well, look, it's been corroborated, Ian can say, okay? But, listen, we just heard from the plaintiff. I have been dying to speak with her and understand her position a little more. One of the things she said that was really interesting was the idea of almost she was a champion in her case for LGBTQ members, a community group who thought that they might one day be forced to create websites that were contrary to their own beliefs, and this idea of the free speech element being the that bind. What are your reactions to what you heard just now?

CHRIS GEIDNER, EDITOR AND AUTHOR, LAW DORK: I mean, I think the case that we heard at the Supreme Court was a case to have an exception from a discrimination law. And we don't do that except for under very narrow circumstances. And this was a case that could potentially just blow that open.

COATES: I want Ian just to put a fine plan on this. people are probably wondering, I am sorry, she's not in the wedding business yet, she does not have a wedding website business yet, the word, yet, problematic. How is it that the Supreme Court entertains more broadly the idea that, look, because somebody is prospectively going to be affected by a particular law, they have that level of standing that lawyers are always like, you don't have standing, you shouldn't be here, why is she able to get before the court on this?


MILLHISER: Yes. I mean, the honest answer is you shouldn't be in the court right now. I mean, maybe in a few years, she'll have a valid case, but the court isn't supposed to hear hypothetical cases. That's not what federal courts do.

And the weird thing about this case is no one actually seems to disagree with her. Like Colorado filed a brief where it said, we don't want to make you design a website that you don't want to make. You have a First Amendment right not to design a website that you don't want to make. The only thing that Colorado law says that its law does is if she makes a website for a straight couple and then a gay couple comes along and wants the exact same website, like literally the identical product then their anti-discrimination law would kick in. I don't think that is likely to happen.

COATES: Well, she said she's a custom web designer. That wouldn't necessarily happen in that instance.

CARRIE SHEFFIELD, CONSERVATIVE COMMENTATOR: Well, yes. So, cases don't get to the Supreme Court without standing. So, we have standing because the long arm of the government, in this case, the state of Colorado, has come in and said, you, web designer, you will be suppressed. Your free speech will be suppressed. That's what this is really about. It's a First Amendment issue. And it's not just about LGBT issues. It's really about any sort of issue. For example, if you had a baker who was a Muslim baker, should they be compelled by the long arm of government to put a Mohammed cartoon? No. Do you think that's true?

COATES: So, that is the issue that one of the many analogies.

SHEFFIELD: It's free speech.

COATES: One was also about the idea in terms of should a Jewish baker, for, example, be forced to have some sort of embroidery of the cake, something that would be a neo-Nazi symbol of kind? So, I hear the analogies.

But here is, I think, the rub for a lot of people looking at this, and that is they really weren't talking in this court about religious aspect of it. They're talking at the free speech, which you are talking about. But I'm wondering about that slippery slope and just one of the many analogies we've all been hearing today and weeks before about where is the line. Where does it stop? At what point can someone say, oh, I'm not bigot, I'm an artist, so I could do what I want?

GEIDNER: I mean, this is the problem with this case and this is why we haven't seen cases like this before. We have had non-discrimination laws for a long time. And the problem with the argument that you have in the case and what we saw today from Justice Jackson, from Justice Sotomayor, from Justice Kagan, is this idea -- and Justice Sotomayor just came out and said it at one point, where is the line. And the fact is there isn't a clear line.

And with Kristen Waggoner, you had her on. I mean, in response to questions that she got at the court, she made it clear that that line isn't clear. And the truth is that if you have this case decided the way that it looks like it's going to be decided, what is going to follow is people who have any number of argument that what they are doing should be protected as a First Amendment, an expressive activity, and they don't believe that they should need to send X message.

SHEFFIELD: But I think that is what the Constitution is for. The First Amendment says that the government shall make no abridgement of freedom of speech.

MILLHISER: No one disagrees with you on that.

COATES: I want to hear from all of you. Carrie, finish your point. Go ahead.

SHEFFIELD: Yes. I'm hearing -- what I'm hearing is that you are afraid of people getting free speech. And I just don't think that that is something that the founders wanted us to be afraid of more than anybody should be afraid of.

COATES: That is not what I heard him say but I do hear your point that I've heard these arguments being made. But, Ian, the idea of how this happens, I mean, let's play devil's advocate, for example, on this notion and on the notion of, well, hold on, this is a business owner, right? She wants to have discretion over what services she has to perform. How is she similar or different to, say, a restaurant, which is what he would say? It's somebody -- it's an artist saying, I don't want to do your portrait. I want to have discretion. I want to say who, I want to say when, I want to say who not.

MILLHISER: Yes. So, let's play this out. So, if she were to design a website, which has not designed any wedding websites, if she were to design one and then the Colorado government were to come after her, which it has not done, and say, hey, you are discriminating, and she said, well, wait a second, I have a First Amendment right to not make any website that I don't want to make, she would be right. If all of those events played out, then she would win her case. None of those events have happened. But if they happen, she would win her case.

And what makes this different from a restaurant is that website actually a speech. I mean, a website is a place where you put words on the screen.


I write for a website. That is free speech. It's protected by First Amendment. Baking a cake is not speech. Making macaroni and cheese is not speech. All of these other things, making jewelry, being a hairdresser, all these other services that go into a wedding, not speech. Website, speech.

COATES: But it is expression, right? It's a form of art. And so how does that factor in? That's probably the point --

SHEFFIELD: Well, exactly. And she's not making widgets. And she even said she has clients that are LGBT. And they do have other issues that are not specific to this issue. So, again, the government cannot compel speech. The Supreme Court has never ruled on the side of suppressing artist. The Supreme Court has never ruled on the side of suppressing free speech. So, that is why they are going to win. I mean, that's --

GEIDNER: I mean, we don't disagree on that point.

SHEFFIELD: That they're going to win?

GEIDNER: That they're going to win. I think the problem here is -- and why we're having some of these difficult conversations is there is no website. We don't know what to talk about. We are talking about these vague things because she hasn't made a website.

COATES: Then why would they take this case?

GEIDNER: And so -- because I want this law. They want this court to write this opinion that will potentially have these follow-up cases. I mean, they even said in court today, I mean, Kristen said, I might be coming back with a specialty baker. And then what you are going to find out, I mean, we have been talking about all of these lower court judges who go further. You're going to have somebody who says, I make very special macaroni and cheese. COATES: I use one example mac and cheese --

GEIDNER: Did you? I must have heard it.

COATES: And now you want my mac and cheese. I get it.

MILLHISER: I do want your mac and cheese.

SHEFFIELD: I want it too.

GEIDNER: But we are going to be in court and you're going to have an opinion from Reed O'Connor down in Texas and he is going to say, this is expressive speech, this is exactly what they were trying to protect in that case. And so I'm going to say that you can't be forced to do that.

SHEFFIELD: I just think marriage is not macaroni and cheese, and I think that that is a pretty easy distinction to make.

GEIDNER: But macaroni and cheese is a website?

SHEFFIELD: I don't think so. It's a website about marriage. It's a website about marriage.

COATES: Hold on. I want to hear everyone, so let's not talk over each other. Go ahead.

MILLHISER: Yes. So, I mean, there is really easy distinction to be drawn here. Words on a website is speech? If she wants to make a website and if the Colorado government, in the future, tells her that she has to make a website she doesn't want, then she has a fine case. Websites are unlike mac and cheese, they're unlike cakes, they're unlike all of these other things. So, I don't think there has to be a law (INAUDIBLE).

Now, I share Chris' that with this Supreme Court, and it's Republican majority, that they're not going to draw the line in a sensible place. But there's a very sensible place to draw that line. Websites are speech, macaroni and cheese isn't.

COATES: Well, I'll tell you, we can't look at it in a vacuum, right? There was that Dobbs decision where Justice Clarence Thomas did intimate that he wanted to revisit certain portions of things that are similar to this, more broadly in same-sex marriage. So, it's not as if this can be looked at purely in a vacuum but we will see. And I'm going to have to put on Instagram my mac and cheese recipe because, I don't know. I feel like I'm getting ready to open a restaurant right now. But don't worry, everyone is welcome to mine.

Look, everyone, next it's Warnock versus Walker, the final election a midterm season is just hours away. Plus, the largest active volcano, not the Supreme Court, but in the world, is erupting. And CNN is on the scene.



COATES: All right, we're just a few hours away now from election day in the pivotal Georgia Senate runoff. Here we are again, everyone, not just as in this election cycle, but again with a runoff in the state of Georgia.

Democratic Senator Raphael Warnock, his Republican challenger Herschel Walker out in one last final push to turn out their voters, in a race that's already seen single day early voting records completely obliterated.

Here with me now, CNN Legal analyst, Elliot Williams, Carrie Sheffield is back, and CNN political commentator Karen Finney joined us as well.

Karen, let me start with you because look, it is a final push.


COATES: But I wonder, are we pushing people who are tired, who do not want to keep voting all the time?


COATES: Or people who are like, look, I'm already at the polls. It's just one last time to figure out who's going to be the senator. Is the exhaustion maybe the bigger hurdle now?

FINNEY: Actually, I think the bigger hurdle is not the exhaustion, it's more just making sure that you have the logistically you can get back out to vote given that we just had an election. I mean, given, remember that it was legislation that the governor passed that shortened the timeline between the general election and when you might have a runoff election.

But I just want to make a point. I mean, Georgians understand, right, in 2021, we had to do this. They know how -- they know they got to come back out and they take their vote very seriously. They take the responsibility very seriously. And so, far the momentum has been really positive for Reverend Warnock.

I mean, it, we're seeing turnout as you mentioned not only is the early turnout good, but it's in the right places. And a number of counties, you know, we look at counties that tend to trend Democratic to see what the percentages are looking like. And so far, he's, you know, I'm with him, don't take anything for granted, but he's -- he's looking like he's in good.


COATES: The ads, you know, sometimes you can tell a lot from what the ads say and just how the tone of them might be. And I'm wondering, Carrie, when you look at the different ads, I mean for a while people were wondering, for example, with Senator Warnock, you know, why isn't he being a little bit more aggressive with Herschel Walker and vice versa, by the way. There were conversations at some point about where they playing the

same game or too nice or too harsh. There is a marked shift in how the ads are now running. But in terms of Governor Brian Kemp, you know, he's talking about this as a turnout, you know, who's more motivated? You've got the former president, Donald Trump not appearing in person, but neither is President Biden in person. What do you make of that?

CARRIE SHEFFIELD, WRITER & POLITICAL ANALYST: Yes, I think it's clear. I mean, Brian Kemp won by a healthy margin. He's a very popular governor. I think that the bigger problem for conservative candidates is looking at the ground game because it's shifted since COVID.

We are now in election month instead of election day, and conservatives are behind the times when it comes to that. They think, OK, we can make up the gap. We can make up the gap if we show up en mass on election day doesn't always materialize.

And so, I think that's where I think some people are discouraged about that. And that's something I'm going to be watching for. I'm also going to be watching for the Demographic shift here within young African American and Latino voters. There's been a marked shift toward the conservative movement, and I think that's really exciting.

And I think that when you saw the failure of Stacey Abrams and her false claims of racial animus within the state of Georgia apparatus. That's just not true. So, I'm going to continue to watch this trend and I'm going to continue to push for policies that attract young African American and Latino voters.

COATES: On the idea of animus, of course, Elliot and Karen, you know this as well in our prior conversations, you know, this was something that Georgia was a focus for a long time following 2020, the election, discussions about COVID-19 and how to shift and the, but mostly about whether there was a fake election or fake election results and a shifting of trying to codify that, which there was no proof for.

This is part of the reason that of course Brian Kemp and Brad Raffensperger are personas non grata to say Donald Trump for that very reason. And I'm wondering how you see things right now in terms of what you're looking ahead to for tomorrow's election. Are you looking to say there'll be, legal issues happening? What's your focus?

ELLIOT WILLIAMS, CNN LEGAL ANALYST: Honestly, my focus is why people in both parties are not screaming from the mountaintops as to how important this race is for both parties. And here's why. Having worked in the Senate, right? I think folks might have gotten complacent on both sides that, well, the Democrats have already won big deal. Right?

But a 50-50 Senate, which is what it would be if Herschel Walker wins means all the committees are tied. If Mitch McConnell is smart, he can gum up the Senate and make life miserable for President Biden. Right? So that's the big one.

Number two is senators are old and it's a simple thing.

COATES: All of them. WIILIAMS: No. This is --

COATES: Every last one of them.

WIILIAMS: Laura, this is --


COATES: According to Elliot Williams.

WIILIAMS: No, no. To be clear, to be clear, it is the oldest Senate in American history right now, they're -- a third of them are over 70. About five or six of them are over 80. They're just not all necessarily around all the time and are prone to getting sick and so on.

You have one senator out and that's two weeks of federal judges you're not getting. It is critically important for both parties and they ought to be putting all their resources into making sure they win.

COATES: Well, guess we're going to come back and talk more about these issues. Don't worry about it guys. And we're going to discuss just how old Elliot Williams thinks everybody is at this table. No, I'm just kidding. Because he wants to come back at CNN one day. Don't name my age. It's for you too, and thank you very much.

We're going to come back in a moment and talk more about these issues, so make sure to tune in to CNN for special coverage of the Georgia runoff between Senator Raphael Warnock and Herschel Walker. That starts tomorrow at 4 p.m., everyone.

And up next, the FBI is now involved investigating the targeted attack on North Carolina's power grid that's left tens of thousands of people without power tonight. We'll tell you what we know.



COATES: Look, it's a chilly night for people in Moore County, North Carolina. Temperatures hovering in the mid-40s and tens of thousands are without power. The result of what law enforcement officials are calling intentional and targeted attacks on substations over this weekend.

Now, since power is not expected to be fully restored until Thursday, North Carolina's governor says it's essential to make sure that people are cared for, and that critical services are available.


GOV. ROY COOPER (D-NC): Helping the vulnerable people and the places where they live, including adult care homes is a priority. Making sure that people are warm as the night approaches, making sure people are cared for, making sure that critical services at hospitals and law enforcement, at emergency management services are supported and available. All of that is crucial.


COATES: The FBI is now joining the investigation, the criminal investigation to determine just who was responsible.

Joining me now, John Miller, CNN's chief Law Enforcement and intelligence analyst.

John, I'm so glad you're here tonight. I've been wondering what your opinion of this is. Because the idea of the vulnerability of our infrastructure for instances like this, I think is stunning to a lot of people. Thinking about how accessible and just the pure breadth of these access points. What's your take in terms of how we can guard against this from happening?

JOHN MILLER, CNN CHIEF LAW ENFORCEMENT AND INTELLIGENCE ANALYST: It's interesting, you know, we've spent so much time focused on the power grid and how it's vulnerable to potential cyberattacks, and here is a low tech, high impact attack, which is just a shooter with a weapon shooting two parts of two different substations and plunging a county into blackout.


Interestingly, it is remarkably similar to a 2013 case in California just outside Silicon Valley where somebody shot out 15 transformers caused $17 million worth of damage. And that is a case that's still unsolved.

What we do know is we've seen a lot of traffic over neo-Nazi channels, white ring -- white ring violent extremist channels, eco-terrorist channels calling out the vulnerability of the power grid and calling for these attacks.

COATES: You know, thinking of that, it might be odd to think of that correlation. I mean, just the idea of why would those particular groups be inclined with something like this or discussion surrounding it? And you're right, a few weeks ago there was a bullet snap, I think by DHS talking about a correlation to electrical infrastructure related vulnerabilities.

And then of course, things like race riots, or things like exploiting what happens when the power is down and there is not a recourse to be able to prevent and deter and stop. I'm wondering if there is a way that the FBI or DHS needs to do more to coordinate the chatter with the prevention.

MILLER: So, after the 2013 case, the government did a study and then mandated the power companies. Remember, 85 percent of critical infrastructure in America is held by private companies, not the government. So, they were mandated to get identify the most critical nodes in the chain of the power business, and then make sure that they met certain standards in security.

But I listened to this quote from a 14-page document put out by a right-wing extremist group just in 2020 that said, attack the power grid. It's those stations are sitting ducks, worthy prey, largely unprotected, often in remote areas which is something that this latest case is a pretty stark example of.

COATES: I mean, it's unbelievable to think about the vulnerability and to think the how, you know, you look at the pictures and the images of where it's located, and I think a lot of people are having a bit of an eye opening and epiphany right now about where things are. And if that bulletin knows about it, if some people know about it, I'll be curious to know who actually is responsible and how to stop it in the future.

Nice talking to you as always, John, for your insight.

MILLER: Thanks, Laura.

COATES: Look, for the first time in 38 years, the world's largest active volcano is erupting on Hawaii and CNN is getting rare access. Look at this. Stay with us.



COATES: You probably won't see a more mesmerizing site tonight than what we're getting from Hawaii's volcano zone. And to make it even better, CNN's David Culver went up in a helicopter over the world's largest active volcano. Here's his report.


DAVID CULVER, CNN INTERNATIONAL CORRESPONDENT: We are on the road before sunrise. Quickly realizing we can already spot our destination some 30 miles out. There you see it, that red orange glow, Mauna Loa erupting.

To give you a better view though, we go up in the morning dark, Paradise Helicopters Darren Hamilton, our pilot and guide giving us

rare access.

I assume we'll know when we see the volcano.

DARREN HAMILTON, PILOT, PARADISE HELICOPTERS: Yes, it's just off, kind of, the eastern side there. At about the one o'clock position that is the plume there.

CULVER: Having flown in military hot zones Darren even admits this is fire power like no other.

What was it like the first time you flew open lava?

HAMILTON: It was a blast.

CULVER: It could also be challenging, especially with heavy vog or volcanic smog. So, there you can see the gases from Fissure 3. Those acidic gases dangerous if the concentration levels are too high. On the ground, officials closely watching the lava potential impact on

Saddle Road, the main highway that connects the east and west of the island. Erupting last Sunday for the first time in 38 years, Mauna Loa the world's largest active volcano is one of five that make up Hawaii's big island, and it's not the only one currently erupting. Neighboring Kilauea also active, though no longer shooting lava to the service like it did in 2018.

UNKNOWN: We're on Cal Pele Street, which is where my house was at, and it's that way on the opposite side of the subdivision.

CULVER: Dorothy Thra (Ph) invited us to where her home now sits buried under 60 feet of lava. You can see a metal streetlight fused into the rock four years after Kilauea did this to her Leilani Estates community. She still walks it as though she's on her old street with her old neighbors.

When you have something like this, I assume you're all dispersed after that.

UNKNOWN: Yes. We lost that sense of community and it's what we lost in addition to the homes.

CULVER: Mauna Loa's eruption an emotional trigger for Dorothy and others forcing the trauma from Kilauea back to the surface. The 2018 lava flow wiped out more than 600 homes here. Some untouched, but left lava locked an island within the island.

Dorothy showed us this video she captured a few weeks back, trekking over lava rock, helping friends gather the last of their belongings from their home. The reminders of devastation here are demises.

UNKNOWN: This was a home, they evacuated the second night, and I believe it went under the third night.

CULVER: And just took their home.

UNKNOWN: Just took their home.

CULVER: And four years later, it's still steaming.

UNKNOWN: It's still steaming. Yes.

CULVER: And how long will it steam like that?

UNKNOWN: Probably 30 to 40 years.

CULVER: How is it that you can still see beauty after so much loss?

UNKNOWN: Because lava is beautiful. It's Pele's creation. That's how the island was formed. That's how the island was built.


CULVER: An appreciation shared by native Hawaiians leaving offerings on Mauna Loa and thousands of tourists and locals arriving past sunset just to witness the lava glow. Nighttime traffic backs up for miles to avoid the congestion. Let's get back to the skies.

HAMILTON: That's 2 to 3,000 degrees Fahrenheit or about a 1,000 degree Celsius. That's molten rock flowing like water.

CULVER: Which has already crossed one volcano road, power lines, and all a searing slice right through it.

It's incredible the heat you feel as soon as you get close to it.

HAMILTON: And look at this. The rushing flow. The river. You see the current of lava.

CULVER: Darren estimates it's moving 30 to 40 miles per hour. But this, the source of it all. I mean, there's nothing like this just spewing from the topic.


CULVER: Really just an incredible experience, Laura. And as you saw in that piece closer up to the source of this current lava flow at Fissure 3, it is moving much faster, 30 to 48 miles per hour, according to Darren, and that was his estimate. But as you go farther down to the current edge of it, it's a lot slower because it's fanning out. That's about 25 feet per hour according to officials.

Still though, it is inching closer to that main highway, currently about two miles away from it. So, it is concerning and something they are closely watching, Laura.

COATES: David, thank you so much for your reporting. Really fascinating stuff.

And look, there's also been days of silence from a lot of Republicans equally fascinating. Well, until today. GOP lawmakers forced to confront Donald Trump's call to now terminate the Constitution. We'll tell you exactly how they're all responding, next.