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Jan. 6 Committee Refers Trump To DOJ On Four Criminal Charges; Jan. 6 Committee To Release Final Report Wednesday; Criminal Charges Filed Against Donald Trump; Donald Trump Only Wants To Win; Professional Burglar Robbed Robert De Niro's House. Aired 10-11p ET

Aired December 19, 2022 - 22:00   ET




JOHN BERMAN, CNN ANCHOR: Good evening, everybody. I'm John Berman and this is CNN TONIGHT.

So, here's a question. Is Donald Trump finished? I'm not saying he is or should be, but I am saying, it feels like that question is part of the national discussion in ways it has never been. Today, the House January 6th committee issued criminal referrals for the former president, four of them to be exact.


REP. JAMIE RASKIN (D-MD): Anyone who incites others to engage in rebelling, assist them in doing so, or gives aid and comfort to those engaged in insurrection, is guilty of a federal crime.


BERMAN: So, we thought about booking historians tonight to place these criminal referrals in historical context. But what's the point? There is no context. This has never happened before. It is sui generis, which is just a snobby, annoying and Latin way of saying, unique.

Now, we will discuss the actual legal teeth these work frills have, spoiler alert, none, but they might represent a marker for a moment what a lot of people figure Trump is just not worth the trouble anymore.

On the other hand, when asking that question, remember, we are talking about a guy who was impeached not once but twice. That was certainly sui generis. So, was a candidate revealed to have bragged about sexually assaulting women?


DONALD TRUMP, FORMER U.S. PRESIDENT: When you're a star, they let you do it. You can do anything.

UNIDENTIFIED MALE: Whatever you want? TRUMP: Grabbed by the (BLEEP). You can do anything.


BERMAN: Sui generis, or equivocated on marching anti-Semitic white nationalists or publicly picked Vladimir Putin over his own intelligence services, or asked about and injecting light or disinfectant to fight a pandemic.


TRUMP: And then I see the disinfectant. It knocks it out in a minute. One minute. And there's a way we can do something like that by injection inside or cleaning. Because you see it gets in the lungs and it does a tremendous number on the lungs. So, it would be interesting to check that.


BERMAN: Sui generis times three, and he survived those, may be for Trump, it should be called, sui, here we go again.

Also, if you're looking around the world right now, irreversible political death sentences seem scarce. Israel just elected an indicted, scandal-plagued former prime minister. Brazil picked a former president who was imprisoned a couple of years ago. It's the political Monte Python corollary to prescriptions of demise.


UNIDENTIFIED MALE: Bring out your dead.





UNIDENTIFIED MALE: No. He says he's not dead.




UNIDENTIFIED MALE: Well, he will be soon. He's very ill.


BERMAN: So, Trump wasn't dead yet, not those times. That is the other hand to questions being asked about Trump. But back to the firsthand and the situation tonight and about the notion beginning to float that Donald Trump really is politically finished this time. And it's not just the criminal referrals about which we will soon discuss the legal teeth, spoiler alert, none, but it's also the midterm election defeats, the Mar-a-Lago dinner with an anti-Semite in a white nationalist, the idea of terminating parts of the Constitution, that all this adds up to someone even Republican supporters don't want to deal with anymore, especially in a world where Ron DeSantis exists, that may be tonight, Donald Trump is less like the guy on the court in the Holy Grail and more like Bruce Willis in The Sixth Sense, politically dead, but no one told him.


Sorry, I missed the spoiler alert there.

So, that's the question hanging over everything we will discuss tonight about what happened today. So, let's dive right in.

Joining me now, CNN Political Analyst Maggie Haberman, Senior Political Correspondent for The New York Times, CNN Political Commentator S.E. Cupp and CNN Senior Legal Analyst Elie Honig. Maggie Haberman --

S.E. CUPP, CNN POLITICAL COMMENTATOR: Can we please just -- that was an awesome, awesome intro.

BERMAN: If it was good, it's sui generis, which is to say the first time.

CUPP: Well, it had Berman written all over. I mean, I loved it. I loved it. Congrats.

BERMAN: Let me do another dramatic reading, this time from Maggie Haberman, who wrote on Twitter about an analysis that you just posted in The New York Times about Donald Trump and the referrals today. The largely symbolic but unprecedented criminal referrals by the House committee of a former president underscored the reality that Trump is facing, a diminished figure politically.

MAGGIE HABERMAN, CNN POLITICAL ANALYST: I think that's right. I think it's diminished. But I would not go so far as to say that Donald Trump is dead. I mean, it's not just all of those moments, and I really did enjoy the montage, thank you, but it's not just all of those moments that you just played. This is a guy who has been written off for decades. He was -- his casinos were bankrupted, but he was fine. He was dismissed in the 1990s. He was dismissed as an entertainer. He came back over and over and over again.

And so I don't think you can say that he's done, especially because we don't know whether Ron DeSantis is running, we don't know whether he will be any good as a candidate. I think this all comes down to two questions. Does anyone actually indict Donald Trump? Which we still -- you know, nothing's changed today from yesterday realistically, to your point, there's no legal teeth there. And then what do voters do? When and if there were actual other choices, everything else is just filling in one side of the page. BERMAN: You know, one of the points I was making is it's not just the indictments, even before the indictments, the referrals, even before the referrals, there was all this other stuff, there are these polls and there is a sense, even before you wrote it just a few hours ago, politically diminished --

HABERMAN: And I stand by that.

BERMAN: -- that he is, in fact, politically diminished. Within Trump world, how are they reacting to this reality, or how do they perceive that reality?

HABERMAN: So, there's a difference between what they will say and what they actually think. And there's difference between what they actually think and what they will say to him. He is continuing to say everything is fine to any number of people, which we have seen him do over and over and over through every single crisis. That's how he handles things. There are some advisers around him who acknowledge this is not an ideal fact set.

I use the word diminished very specifically because he is shrunken, basically. And this is different now than, say, in 2016. And this is a point someone made to me in the analysis I posted tonight. In 2016, voters, they were familiar with the idea of Trump, that they had heard about for decades. They were not familiar with who he is, what he's like, the fact that there is a rolling drama around him at all times, and I think there is a sense of fatigue. What that adds up to depends on who he's running against and what else is happening. But I absolutely think that he is a smaller and certainly less powerful figure than he was before.

CUPP: Look, you can't underestimate just how loyal a lot of his fans but also his surrogates and supporters are. I just heard Steve Bannon say he's out over the NFTs. He was fine with the sedition and the bigotry. The NFTs was like the bridge too far. I'm sure he'll come back around if Trump starts looking like the only candidate or the strongest candidate.

Mike Pence just yesterday or today saying, well, gosh, I hope he isn't indicted. That would just be a shame. The guy's supporters tried to kill you in the Capitol, Donald Trump did nothing to stop it, and you don't think he should face any consequences? So, there's, I think, a lot of people talking a little tough about Donald Trump, who, when push comes to shove, if DeSantis doesn't get in, or DeSantis gets in and look soft among voters, will absolutely find ways to continue defending Donald Trump.

ELIE HONIG, CNN SENIOR LEGAL ANALYST: And let me say, one thing that I know about Donald Trump, and I know because I read Maggie's book, nothing energizes him like a fight, right? He has come back, as Maggie said, from the dead so many times.

And guess what, this here, this referral, this is going to be a fight. Because you know what's going to happen on Wednesday when all the underlying materials come out, Donald Trump's lawyers, perhaps some of his most loyal followers, are going to go through that with a fine tooth comb, and they're going to go, aha, look here. Here's testimony given that was favorable to him, maybe by Stephen Miller, a lot of people who were Trump sympathizers went in to testify. It looks like the committee hid from you.

They're going to go through it and say, oh, look, Cassidy Hutchinson testified, and here's -- the way she said it's slightly differently, maybe when she had a prior lawyer, therefore, her testimony is not to be believed. I think she was quite credible, but watch, I've seen it happen with witnesses. This could energize Donald Trump.

BERMAN: Let me ask it this way, Elie.


On the legal side of it, what's different for Donald Trump tonight than when he woke up this morning?

HONIG: So, two things. First of all, there's now a book, a bible, right, this document, 160 pages, an executive summary, where all in one fairly concise place, they should have made about one quarter the length, but in one place, you could look and say, here is sort of the story of what Donald Trump did. The other thing is, if I can cheat a little, in two days will be different when we get all the documents, DOJ is now going to have all the evidence. DOJ, for better and for worse, they're going to have facts that they don't know. We know DOJ has been asking the committee for the stuff. And you're going to have other stuff that may be used to sort of impeach someone with the committee did.

HABERMAN: I agree with you in terms of the impeaching what the committee did. I think you are going to see Republicans making a huge push on that. I'm not sure it's going to be as effective as it might be, say, if Kevin McCarthy was not drowning in his own leadership fight. So, I think there's a bunch of X factors there.

The one thing I will say, you made a point and I should have mentioned this before, you were saying nothing energizes Donald Trump like a fight. That's absolutely true. And he never sounds as sort of engaged, as he does in recent days, when he's talking about wanting to take on Ron DeSantis. But that's the only time he really sounds engaged. And in 2015, he was enjoying himself. There were lot of people who are not enjoying his candidacy, to be clear. But his slash and burn stuff was so much fun for him. Is there anything that gives anyone any sense that he's enjoying any of this right now? We haven't seen him in five weeks.

CUPP: Yes, it's true. And I think that might be a calculation of Ron DeSantis', waiting, waiting this out, not giving him exactly what he needs right away. So, that for the next two years, it's the Trump show all over again. And he knows Ron DeSantis knows that the media will follow, will start paying attention if there's a fight between Trump and DeSantis, or Trump and someone else. So, maybe he's hanging back for that reason.

BERMAN: Can I bring Paris Hilton into all this?

CUPP: Always.

BERMAN: So, did she of course --

HABERMAN: I was wondering when you're going to get there.

BERMAN: Didn't she once say, and I'm paraphrasing Paris Hilton for the first and only time, basically, there's nothing worse than being boring, right? The worst crime in the world is being boring, or something like that. And for Trump, at a certain point, all of this is just becomes background noise. And that if you are a Republican who may believe in much or most or all of the stuff he believes in, he's just exhausting and it's just not worth anymore.

HABERMAN: There was something that -- and I wrote about this in the book that I wrote, that Bill Barr, the former attorney general, said to Trump in the spring of 2020 when he was trying to coach him on being a more normal candidate. And he said that people are tired of the expletive drama. And I think there is something to that. I think even his supporters are tired of the drama.

That doesn't mean they won't be with him again. I think they probably will, as long as he has this hold on roughly 30 percent of the Republican Party, he's in pretty good shape. And even the polling that shows that there is some erosion. He's definitely decelerating. But he still has that core group. And you can't write him off.

CUPP: And the GOP hasn't made outreach to other kinds of voters. They've decided against the big tent, went all in for Trump and have condensed the base over the past six years, so that it is the most sort of purely Trump kind of voter. And so they might have a lot of Trump support but it's probably not enough to win another national election.

HONIG: Two things real quick. Of course, Maggie got that scoop. I wrote a book about Bill Barr, I didn't get anywhere near that scoop. But second of all, this stuff is scary, right? This is a little different than just bad tweets or stupid NFTs. I mean, you're talking about potential indictments, so there is real consequence.

HABERMAN: Yes, except the one he said -- and just to make clear, what he said the spring of 2020 was after the impeachment involving Ukraine. So, it was (INAUDIBLE). It was this is light and fluffy presidency were nothing else happens.

BERMAN: Well, also, I want to apologize, because, apparently, not for the last time, I confused Paris Hilton and Bill Barr.

HONIG: It happens.

BERMAN: Maggie, S.E. and Eli are going to stick around. We're going to lose you. So, I just want to ask you before we do lose you, if there was anything revealed today, whether in these hearings or the summary of the papers that have been released since so far as you've been able through them, was there anything new you think that would be or might be of particular concern, or that adds to the problems that Donald Trump is facing? HABERMAN: I don't have an answer to the problems he's facing. It certainly adds to layers that I think that the committee wants the DOJ to look at. So, one thing is that they raise the specter of interfering with witnesses. And they were very vague and how they described it. They didn't touch names to. They wrote it in a very particular, and I would say, to some extent, peculiar way given the weight of that potential claim, so -- or that claim and that potential charge. So, that's one thing.

I think that this has gotten very little tension, I've been surprised by it. They sort of went out of their way to tweak Ivanka Trump, and say that she was not direct with them in her testimony. We got to see that in the videos that they showed. We know what they think. But they wanted to lay that out, that they don't think that she was somebody who is being forthcoming.

BERMAN: And just before we end this, Ivanka Trump, Kayleigh McEnany and Tony Ornato, they all sort of, Elie, made these veiled references to not being as forthcoming as they would like.


Political, legal, where is the line there?

HONIG: Well, they're making credibility findings, which ordinarily we leave to judges or juries. If you could show you've got the person dead to rights, she said X, we know that she knew it was not X. Then you're talking perjury. It doesn't sound like they're anywhere near there. It sounds more like we didn't really just believe them on the whole.

HABERMAN: That's right. And that's sort of my points with the potential for witness, I wouldn't say tampering, but at least sort of influencing. That's a really serious claim. And they made it with not a ton of specifics behind it.

BERMAN: And without a criminal referral too, though?

HABERMAN: And without of criminal referral, that's correct.

BERMAN: All right. Maggie, thank you very much. S.E. and Elie, stick around.

CUPP: With pleasure.

BERMAN: Much more for you coming up.

So, in a first, the January 6th committee recommended for criminal charges against a former president. What can the Department of Justice do that they couldn't? What can DOJ do that the committee didn't do? I'm going to ask a member of that committee. Stay with us for Congressman Adam Schiff, next.


[22:20:00] BERMAN: A historic day on Capitol Hill, the bipartisan January 6th committee referring former President Trump to the Justice Department on for criminal charges, inciting, assisting or aiding an insurrection, obstruction of an official proceeding, conspiracy to defraud the United States and conspiracy to make false statements.

Joining me now is Democratic Congressman Adam Schiff of California, a member of the select committee. Congressman, thanks so much for being with us.

So, based on the information publicly available, which of your referrals do you think the Department of Justice is already the furthest along in?

REP. ADAM SCHIFF (D-CA): Well, this is speculation on my part, but I have to think that the issue the charges relating to the obstruction of the joint session, the interference with the joint session, the conspiracy to defraud the United States, those would be, I think, probably top of mind for the Justice Department.

But they also need to look at the most serious charge, and that is the incitement of insurrection, the aid and comforting of people committing an act of rebellion or insurrection. That is, you know, certainly not a charge that's brought very often, never been brought before against a former president. But, nonetheless, the facts here are very much on point. But I imagine some of those other statutes, they are probably further along, at least in their evidence gathering and their assessment.

BERMAN: Which charged you think has the strongest evidence?

SCHIFF: Well, that's very difficult because I think the evidence is pretty strong, certainly strong enough to warrant our referring it to the Justice Department. There were other charges that we looked at and others that we think the Justice Department may have more evidence than we do. But out of those four, the evidence looks to be pretty strong. And, certainly, if they hadn't begun an investigation of the former president on the basis of those charges, I think it is a sufficient basis to do so.

BERMAN: So, let's just pick one of the charges. Let's take the insurrection charge. What do you think the strongest evidence is with that?

SCHIFF: Well, look, he brought this mob to the Capitol. He understood that they were armed. When he was told they would go through the metal detectors, his answer was, take the metal detectors down. They're not here to hurt me. He understood they were there to potentially hurt someone. He was more than happy to have them march on the Capitol knowing they were armed. His only frustration and indignation was that he couldn't go with them. And when the violence began, he made it worse, by attacking his own vice president. All the people around him understood just how that was pouring gasoline on the fire. And I think he understood that as well.

And then you have the extraordinary dereliction of duty where he sat by and did nothing while this mayhem was taking place. And then afterwards, telling them how much he loves them, even now, talking about pardoning them. To me, that's pretty powerful evidence certainly of giving aid and comfort to those engaged in insurrection.

BERMAN: So, you've noted that the Department of Justice has the ability to get answers from people that you could not. So, specifically, which witnesses have they spoken with that you think could prove to be the most important? And what would you ask these people if you had the chance?

SCHIFF: Well, there are a number of witnesses that -- I'm just reading the public reports of people that appeared to be going before the grand jury who refused to come and testify before us. Now, I don't know they're saying in the grand jury and maybe that they're invoking a bunch of privileges that don't apply just as some of them did for us. But I think they probably view the Congress is much more of a paper tiger in its ability to enforce subpoenas. The Justice Department is something different. So, my guess is they're getting more answers from some of these witnesses than we could.

In terms of the questions I would want to ask, I would want to ask about conversations involving the president, what they heard. I would want to ask about other potential coconspirators and what they were involved in. Many of those conversations are not covered by any privilege, depending on who is engaging in them and who else was in the room but we were not able to get answers, and I think the Justice Department can.

BERMAN: Pat Cipollone, who was White House counsel, did answer questions before he was deposed by you all, but he drew some lines as to what he would not answer. Presumably with DOJ, those lines don't exist. So, what questions from him would you want answers to? SCHIFF: Well, you know, he will assert -- the White House Counsel

some of those lines and try to make the case of the Justice Department. And the Justice Department will have to consider, are they ready to press this in court, what are the chances of winning in court, how long would it take. That's part of the calculus that we have to entertain after all, we're almost two years into this, and we're still litigating some of these issues.

Sadly, this is a tried and true tactic of Donald Trump, which is to delay and delay and delay and hope the justice delay will be justice denied.


So, I think it will be a process of a different kind of negotiation with these witnesses. I think the Department of Justice will have a lot more leverage. And they can move much more quickly than the Congress.

BERMAN: So, you know the bar is obviously high, though not insurmountable, to convict attorneys for their advise and their actions. What evidence have you seen about Rudy Giuliani specifically that prompted the criminal referral for him? SCHIFF: Well, look, Rudy Giuliani was well aware that there was no evidence to support these bogus claims of fraud that they were making in courts all over the land. And he was also aware of what the president was intending to do on January 6th in terms of this conversation with Cassidy Hutchinson, for example. He went before the state legislatures, making unsupported false claims of fraud. You saw the testimony that he gave in Georgia.

And so he was deeply involved in an effort, I think, to defraud a conspiracy to defraud, as well as the conspiracy to make false statements, conspiracy to interfere with the joint session of Congress. So, I think there is evidence along those lines as well.

BERMAN: Congressman Adam Schiff, we appreciate your time tonight, thanks so much for being with us.

SCHIFF: Thank you.

BERMAN: So, this might be the last January 6th committee hearing, but they managed to deliver some new details. My panelists here will show you some of what we only learned today, after this.



BERMAN: There were new pieces of evidence released today in the final January 6th committee hearing, including a list of the weapons confiscated ahead of former President Trump's speech on January 6th. Now look at this list, 269 knives are blaze, 242 canisters of pepper spray, 30 batons or blunt instruments, 18 tasers, 18 brass knuckles, 17 miscellaneous items including scissors or needles. Six pieces of body armor and three gas masks.

Here with me now, John Miller, CNN's chief law enforcement and intelligence analyst, S.E. Cupp, and Elie Honig back with us.

So, John, that's quite a list there. Batons not, not the average thing that people carry around. This was the group of people that Donald Trump spoke to, riled up, and then, you know, basically said, let's march to the capitol.

The question here is, is that illegal, or as I suspect that he will ultimately argue if it gets to a court of law, just reckless. And the reason this is interesting, particularly today, is Mike Pence did an interview where he said, I don't want to see President Trump charged. What he said was reckless. What's the distinction here?

JOHN MILLER, CNN CHIEF LAW ENFORCEMENT AND INTELLIGENCE ANALYST: So that's really interesting because it takes us all the way back to Watergate, which is in the legal sense, reckless is you are disregarding what could be caused by your statements or actions. It's reckless disregard for what could occur, whereas criminal is usually, this is the intent to cause exactly what's going to happen and what happened. That boils down to, going back to Watergate, what did they know and when did they know it? Who was in on this? So, what the committee has done is they have kind of set the table for, there were conversations between close aides to the president about what to do and how on January 6th.

Now, who can tie that together and what amounts to -- this is Ellie's department, a criminal conspiracy versus just pouring gasoline on the fire to see what would happen.

BERMAN: Is there an actual legal point there?

ELIE HONIG, CNN SENIOR LEGAL ANALYST: Yes. So, the legal test for when does speech cross the line, right? Because our first amendment is very broad. It should be right? You're especially in the area of political speech. But basically, what the law says is it intended to incite and likely to incite. I think likely to incite is the stronger argument it did. Right?

Look, but intended to incite was that in his head. And recklessness is not enough. Generally speaking, under the criminal law you have to show some more specific purpose.

BERMAN: Can we pull up the Hope Hicks soundbite, guys. There's one thing that we did here today was Hope Hicks who had worked in many different capacities for former President Trump who was interviewed, really after, I guess the final previous hearing that we heard from the January 6th committee.

And this is the first time we saw her testimony and there was this pretty interesting discussion she revealed.


HOPE HICKS, FORMER WHITE HOUSE COMMUNICATIONS DIRECTOR: I was becoming increasingly concerned that we were damaging, we were damaging his legacy.

UNKNOWN: What did the president say in response to what you just described?

HICKS: He said something along the lines of, you know, nobody will care about my legacy if I lose. So that won't matter. The only thing that matters is, is winning.



S.E. CUPP, CNN POLITICAL COMMENTATOR: At all costs, win any way you can, and I think through all the investigations we've learned that that was clearly how Trump was approaching this election. I can't get over, and this is crazy. We don't hear a lot from Hope Hicks, and so it was new both in the content and in the presentation.

BERMAN: I didn't even know what her voice sounded like. CUPP: I know, I know. And she's been -- she's kept very quiet. She

kept quiet through the administration and post. I can't put my head inside the space of someone who thought this was what was going to damage his legacy.


Like it hadn't already been damaged by the sexism and the bigotry, the racism, the anti-Semitism, the two impeachments. You know, all the bad stuff they thought he was still intact until the insurrection.

I mean, I don't know if she -- she thinks that way, but that's clearly what she was thinking at the time. This is going to damage your legacy and I somehow have the ability to stop you or make it better. That's wild to me.

BERMAN: She wasn't alone. I mean, there were those cabinet officials who only resigned at that point, and there were other people who --


CUPP: Many of them.

BERMAN: -- there were whom that was the final straw. Elie, in the previous segment I spoke to Congress and Adam Schiff, and I -- and I asked what I thought was a really, really good question about --

HONIG: So sharp.

BERMAN: -- about the fact that DOJ in front of a grand jury can get answers from people that Congress could not. And one of the people that I was thinking about was Pat Cipollone who CNN has reported now has testified before the grand jury.

This was the moment before the January 6th committee, and people could see how sort of limited it was. Watch.


REP. LIZ CHENEY (R-WY): Who on the staff did not want people to leave the Capitol?


CHENEY: In the White House.

CIPOLLONE: I don't -- I can't think of anybody, you know, on that day who didn't want people to get out of the -- the Capitol once, you know, particularly once the violence started. No. I mean.

REP. ADAM SCHIFF (D-CA): What about the president?


CIPOLLONE: Well, she said the staff, so I answered.

CHENEY: No, I said in the White House.

CIPOLLONE: I'm sorry. I apologize. I thought you said who, who else on the staff.


BERMAN: So, he didn't answer the what about the president question there?


BERMAN: In front of the grand jury.


BERMAN: Will he have to or would he have had to answer that question?

HONIG: So, what he's doing in that clip we just saw is hiding behind executive privilege and I don't mean to say that in a derogatory way. It is a real privilege. The difference though is according to our reporting by our Evan Perez and our DOJ team, DOJ has had this fight. They've gone to a judge under seal, which is appropriate because we're in the grand jury. You're supposed to be doing things under seal, meaning in secret.

And they've argued over executive privilege and the judge has ruled in favor of DOJ. Meaning, that question that we just saw Pat Cipollone not answer, he should be answering at the grand jury, so DOJ will get that information.

The other thing is, and Adam Schiff was right about this. DOJ has way more powerful tools to enforce these subpoenas. We're used to a year and a half of people sort of casually blowing off the January 6th committee subpoenas, and little, if anything, happening to them. That is not going to fly.

BERMAN: The answer to that question is a big deal.

HONIG: It is.

BERMAN: The answers that Pat Cipollone can provide they're a big deal.

HONIG: He was willing to go right up to -- right up to, what did everyone say except the president. That's what you want to know.

BERMAN: And this gets to --

CUPP: Yes.

BERMAN: John, and I think you've got a really interesting take on, there's just a vast difference between the way the January 6th committee went about investigating and questioning, then you will get from the FBI or federal prosecutors.

MILLER: I mean, in general, the FBI likes to investigate everything they can and then interview the targets, which gives them the advantage of knowing all the answers that they're going to get, which ones are going to be truth, which ones are going to be lies.

So, you like to interview your targets last. In this case, while it is not the way that the FBI or a prosecutor would've necessarily gone about it, now they have this enormous bank of what people would say if they were asked these questions. And they will have the results of their investigation.

So, in a way, while it's not the way they would've done it, they're walking into this case with a lot more information than they usually start off with, not counting what they already know.

BERMAN: All right. John Miller, S.E. Cupp, Elie Honig, thank you all very much.

So, it wasn't the Grinch, it was a real life thief. A woman caught going through Christmas presents under the tree in Robert De Niro's house. Stay with us.



BERMAN: The New York Police Department arrested a woman for breaking into Robert De Niro's home early this morning. That is according to a law enforcement source who says the woman did not interact with the actor, but police say she is one of the top five burglars in the precinct.

John Miller has been digging into the story. Just walk us through with exactly what happened.

MILLER: So, it's 2.45 in the morning. This is when I would usually be on the way home. The 19th precinct specialty anti-crime unit, the public safety unit is driving around and they see a woman who seems to be checking the doors of commercial places, and they say, is that Shanice?

Because she's supposed to be in jail. She's a known burglar in the precinct. They keep her under surveillance and she goes down some stairs into kind of a townhouse and doesn't come out. When they follow up and look down the stairs, they see there's a forced entry. The window is broken, the door is open.

And there, amidst all the presents and an iPad and other things, is one of the most prolific burglar in the precinct who has broken in, so they take her into custody.

Robert de Niro is upstairs, he's asleep. He doesn't know anything about this till the police wake him up and he hears all this activity. There's other people at home.

BERMAN: So, let's deal with the De Niro aspect first. Any sign that she knew she was breaking into De Niro's house? MILLER: No idea in all likelihood, because she had been looking at other places, looking for an opening according to the narrative of police watching her up to that point. And, you know, she just found down the stairs place that wasn't easy to see from the street where, you know, she could allegedly break a window and make an entry.


BERMAN: So, he was safe by all -- by all accounts.

MILLER: Right. And according to my sources, you know, she used a metal pipe. There's video of this from the security system. So, you know, De Niro has another movie.

BERMAN: So, the thing is, with this suspect, you say a known burglar, she has been charged, correct, with doing this a lot of times.

MILLER: So, she has a extensive criminal record, but she has been charged with burglary, larceny, possession of stolen property, 20 felony arrests, a dozen misdemeanor arrests. But if you look at the cadence of it, you know, this is apparently, if all those charges were true, what she does for a living. She's a professional burglar.

BERMAN: A professional burglar, and it could highlight again, still more questions with the bail system in New York? Explain.

MILLER: So, under the Criminal Justice Reform Act that was passed in 2020 or enacted in 2020, it says that judges could not impose a bail on a number of cases. Burglary was one of them. Then they adjusted it to say, well, certain burglaries you could. But the point is, even when they impose bail, it has to be in the least restrictive circumstances for pretrial release. And if they impose bail, it has to be a bail that the defendant can afford.

So, basically, the bail for somebody who can show no means other than being a burglar, is going to be very low. This is why you have this machine that just the wheels turn every day. People get arrested, they come out the other side, and they come out not in custody.

When she was arrested, she had two outstanding warrants for cases she hadn't shown up at. She had been arrested in in December 8th for seven burglaries, and then December 13th for two more in Queens. So, she had been just arrested for multiple burglaries, let out, and then arrested for multiple burglaries and then caught in a burglary.

So, if you get the idea that the system is churning people out, not in, that's what's going on.

BERMAN: Judges now with the change to the law that was initially enacted, judges can impose bail for burglary, but by and large haven't been, is that what's being found?

MILLER: Well, the judges know the system pretty well, but they know that the intent of the law is that they're supposed to impose the least restrictive, pretrial conditions possible. So, if it's bail, if the person it doesn't have resources that are documented, it has to be very low bail. And if it can be no bail, it should be supervised release, which is check in with your probation officer every six weeks. If you get caught, well, that was bad. Now check in every three weeks.

But there's a definite -- look, in 49 states of America, a judge can consider dangerousness. Meaning, what is your likelihood that while you're on release, --

BERMAN: Right.

MILLER: -- you're going to commit the same kind of crime again. You can tell by a person's pattern. New York is the only state where that is not the case. Judges are not allowed to consider dangerousness and threat to the public, just whether you'll return to court.

BERMAN: Let me just ask again. This is sort of quite literally maybe a first world problem in the area where Robert De Niro lives, but if someone could just walk in to your apartment building or complex through a, you know, a basement door, that's a problem. Yes?

MILLER: Yes. But I mean, there's a security system. In this case the alarm was off, but the video was on, but the door was locked, but she broke in. But I think, you know, if you look at those people who do this for a living, that's what they're doing. They're out checking every night.

Twenty-five percent of burglars in New York City are arrested again within 60 days of their last burglary charge, which suggests there's a bunch of burglaries in between where they're not caught.

BERMAN: All right. Bonus question. Favorite De Niro movie.

MILLER: I would say Good Fellas. Little bit.

BERMAN: That's the right answer. Taxi driver the other option. Are you stealing from me?

MILLER: Are you looking at me? Talking to me?

BERMAN: John Miller, thank you very much.

All right. Guilty again. Harvey Weinstein found guilty on some charges, and yet another sexual assault trial. We'll tell you the details right after this.



BERMAN: New tonight. A California jury reached a verdict in the sexual assault trial of former film mogul Harvey Weinstein. The jury found him guilty of three of seven counts in a Los Angeles trial where prosecutors argued he used his Hollywood influence to lure women into private meetings and then assault them.

Guilty verdicts include forcible rape, and all stem from the assault of a woman in February of 2013. Now, Weinstein was found not guilty of one count of sexual battery and three other accounts ended in a hung jury. The verdict comes after 41 hours of deliberations over a period of 10 days. He faces up to 24 additional years in prison.

Weinstein is already serving a 23-year sentence for his sexual assault in New York.

And next, the January 6th committee refers Donald Trump to the Justice Department on four criminal charges. The ball is now in their court. This is far from a slam dunk though. That's next.



BERMAN: All eyes on the Justice Department tonight. This after the January 6th committee formally recommended four criminal charges against former President Trump.

This is how Congressman Jamie Raskin made their case.


REP. JAMIE RASKIN (D-MD): We proposed to the committee advancing referrals where the gravity of the specific offense, the severity of its actual harm, and the centrality of the offender to the overall design of the unlawful scheme to overthrow the election compel us to speak.

Ours is not a system of justice where foot soldiers go to jail and the masterminds and ringleaders get a free pass.


BERMAN: So, that remains to be seen. But referring a former president for criminal prosecution is something that has never happened before, and now it is up to the Department of Justice to decide whether or not to indict what to do with this.

I want to bring in CNN senior political analyst, John Avlon, also Gloria Browne-Marshall, constitutional law professor at John Jay College of Criminal Justice, CNN political analyst. Astead Herndon, a national political reporter for the New York Times, and former FBI deputy Andrew McCabe.

John, I want to start with you.

Last hour I actually said we thought about booking a historian to talk about the historical context, but what's the point? Because there is none. This has never happened in history.


That's right.

BERMAN: There's never been a referral, a criminal referral to the Justice Department for a former president of the United States.