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CNN Covers the January 6th Indictment of Donald Trump. Aired 11p-12a ET

Aired August 01, 2023 - 23:00   ET

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

[23:00:00]

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LAURA COATES, CNN HOST: Our special breaking news coverage continues now of the third, yes, third criminal indictment of former President Donald Trump. I'm Laura Coates.

ERIN BURNETT, CNN HOST: And I'm Erin Burnett. And the news tonight, you know, still stunning, even though people had expected an indictment to come, right? Now, it's here. You have to let it sink in. The 45th president indicted by a federal grand jury in Special Counsel Jack Smith's investigation into efforts to overturn the 2020 election.

And it's not lost on anyone that while Trump is facing charges over the last election, he is, of course, in the middle of his re-election campaign, Laura.

COATES: I mean, this is the third time, the third time that Donald Trump has now been criminally indicted in what, four months at this point? Special Counsel Jack Smith charged him in the classified documents probe in June. He had that Manhattan grand jury charging the former president for business fraud back in March. And just listen to what Special Counsel Jack Smith had to say tonight.

(BEGIN VIDEO CLIP)

JACK SMITH, SPECIAL COUNSEL, U.S. DEPARTMENT OF JUSTICE: The attack on our nation's capital on January 6th, 2021 was an unprecedented assault on the seat of American democracy. As described in the indictment, it was fueled by lies. Lies by the defendant targeted at obstructing a bedrock function of the U.S. government, the nation's process of collecting, counting, and certifying the results of the presidential election.

(END VIDEO CLIP)

COATES: All right. So, what exactly is in this indictment? Correspondent Paula Reid is here. Paula, you have been working this for so long. Fabulous reporting, you and the team. And today's indictment is laying out how Trump used -- quote -- "dishonesty, fraud, and deceit" in his efforts to stay in power. So, what is standing out to you tonight?

PAULA REID, CNN SENIOR LEGAL AFFAIRS CORRESPONDENT: Well, the biggest thing that stands out to me is that the former president is the only one being charged today. This is something that our reporting over the past several weeks had suggested to us, but we were quite surprised that he would be the only one charged, at least initially at this point, because he clearly did not act alone, right?

You look at the charges that he's facing right now, three of them involve a conspiracy, where obviously he would need someone else. And throughout this indictment, they lay out exactly how he worked with others to amplify what he knew were false claims of election fraud to litigate this strategy, to pressure various states, to pressure his own vice president.

And then, of course, on the day of January 6th, he continued to pressure his vice president, resulted in violence, and then he and his supporters continued to double down to try to use this as an opportunity to overturn the election. Again, he was not operating in a silo. So, really watching going forward to see if any of these six co- conspirators will be formally charged.

The other thing, one of the other two things that stood out to me, is that we didn't get a lot of new information. We got some new details from like the vice president's handwritten notes, some interactions with political advisors we weren't privy to prior. But given how much additional information that Jack Smith was able to obtain, you know, he got access to Mark Meadows, Vice President Pence, I was expecting that we would learn even more.

So, it will be interesting to see if the special counsel releases additional details going forward. But speaking of releasing details, we did get the indictment today. We didn't have to wait until the initial appearance. We didn't have to wait a few days. The country, the world gets to see the case today and they don't have to wait. I think that is significant and that's something we've been lobbying the special counsel to do.

COATES: And, of course, there are some unanswered questions. We have names. The reporting identifies who we believe are at least five of the six co-conspirators.

[23:05:02]

We don't know if they will be charged, where their cases are. But this case is historic for so many reasons no matter what the outcome will be. So, what are the next steps, Paula?

REID: The biggest next step is the former president's first court appearance. We expect that will happen on Thursday. It's unclear, Laura, if that'll be via Zoom, that is an option available to him, or if he will come in person. Now, after that, we know that next week, the special counsel has at least one more witness interview scheduled next week, and then at least another one in the next few weeks.

So, we know from our reporting this investigation continues. Yes, the special counsel said that. But we know what they're up to. They're continuing to talk to witnesses, witnesses like former New York Police Commissioner Bernard Kerik. He worked very closely with Rudy Giuliani in his efforts to find fraud, to allege fraud. And then one of the other witnesses, at least one of them, is a former Trump lawyer.

So, they will continue to gather evidence. It is unclear, though, if there will be superseding indictment and additional charges.

COATES: We've already seen one superseding indictment and that led to an additional co-defendant, of course, in the Mar-a-Lago case. And so, there's already a precedent for this unprecedented time. Paula Reid, thank you so much. Erin?

BURNETT: All right, Laura. Well, the indictment against Trump repeatedly references the six co-conspirators that Paula is referring to. Our national security reporter Zachary Cohen is here to tell us more about them, the ones we now know about and, of course, one we don't yet. Zach?

ZACHARY COHEN, CNN NATIONAL SECURITY REPORTER: Yeah, Erin, the indictment refers these people as six individuals who Trump enlisted to assist him in his criminal efforts. Through context clues and our own reporting, we have identified five of the six people that are described in this indictment.

And if you followed along during the January 6 Committee hearings, none of these names really will come as a surprise. They include people like Trump's former personal attorney, Rudy Giuliani, Attorney John Eastman, and even people like Jeffrey Clark, the former DOJ official who we know has tried to use the Justice Department to overturn the 2020 election.

Those details, some of them are included in this indictment. Like Paula said, a lot of this information was publicly known, which is how we were able to identify in part some of these folks. But the unidentified person is described as a political consultant who helped implement what is really a central theme in this indictment, the fake electors plot.

This is really one of the cornerstones of Jack Smith's case here. He says that Trump and these six individuals tried effectively to trick these electors in these seven states to sign these certificates, asserting that they were the legitimate electors, and to send them to the National Archives and to Congress with the idea that Pence could then use them and overturn the election on January 6th. We don't know the identity of this sixth individual yet, but I'm sure we'll come back with that shortly.

BURNETT: Right. Absolutely. So, Zach, I'm also curious, I mean, you know, usually, but the term used when you're talking about co- conspirators -- co-conspiracy -- conspirators, I'm sorry, it's getting late, is unindicted. And that word unindicted, the modifier is not present, right? They're just listed as co-conspirators.

So, you know, there's nothing in this indictment that is not purposeful. So, that word is not in there on purpose. So, it could mean they're going to be charged. It could mean perhaps they already have had indictments handed up. We just don't know. Do you have any clarity on this? COHEN: Erin, like you said, there could be a number of reasons, including what Jack Smith told us today when we spoke publicly, which is a rare occasion, but he said they're still investigating. And as Paula noted, we know from our reporting that they still have witness interviews lined up, including with former New York City commissioner, Police Commissioner Bernard Kerik, who can shed some light on these efforts to find alleged -- you know, find evidence of voter fraud.

But I think the strongest indication is that this investigation is still ongoing. If you're one of the six people that is unnamed in this indictment or you think you are, you're probably not resting easy at this stage.

BURNETT: Right. Absolutely. Zachary, thank you very much. And I should note, of course, from what we understand with these charges, these are very serious maximum charges, 20 years, 20 years, 10 years. This is incredibly, incredibly serious allegations that anyone as a conspirator would be facing.

I want to bring in Timothy Heaphy now because he was chief investigative counsel to the January 6 Committee. So, Timothy, you look at this with an eye unlike almost anyone else, right? Because you have been through reams and reams of information, hundreds of hours of interviews all related to the January 6 Committee's investigation which was exhaustive. So, when you read through this 45-page indictment from Jack Smith and the special counsel, did you learn anything? Did anything surprise you about how it was presented?

TIMOTHY HEAPHY, FORMER LEAD INVESTIGATOR, JANUARY 6 SELECT COMMITTEE: No. Erin, thanks for having me. It reads very much like a truncated version of our report. It actually reads very similar to Vice Chair Cheney's opening statement in the first of our summer hearings. It was during that very first proceeding where she laid out that there was a multi-part intentional plan to disrupt the joint session and prevent the transfer of power.

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It involved pressure on state officials, on the Department of Justice, on the vice president, and ultimately launching a mob at the Capitol. That's exactly what's alleged in this indictment.

So, there isn't a lot of new information other than some details about direct communications between the president and the vice president, the president and Pat Cipollone.

So, the special counsel has gotten some additional corroborative information that provides some color, some important context in manifestations of the president's state of mind. But the core conduct that's described is what we set forth in our report and in our hearings.

BURNETT: Right, right, and I know obviously you refer to Pence. You know, I know you all didn't have a chance to interview him and he did, and so obviously there's some information from that. But I'm also curious because -- look, 45 pages. We know he has a lot of information he didn't include, right? And you know you've got to make choices. So, how much -- you know, Paul Reid was referring to this question. How much do you think he's holding back? You know, do you think there's some real -- some real gems that he's holding back? I don't know what the right word is, but really crucial pieces of information or no?

HEAPHY: Yeah, potentially. Again, I don't think he's holding back anything, any part of the core conduct.

BURNETT: Okay.

HEAPHY: I think he has laid out this three-part object of a conspiracy and essentially sketched out the pattern that he is going to prove. I'm certain that he has left out some details, some specific conversations, some specific events, some specific allegations. That's common. A prosecutor would never put absolutely every fact that he or she has gathered in an indictment. This is a speaking indictment in pretty detail.

But, as you said, Erin, my guess is that there are some additional facts that would be further proof of the allegations that we'll find out about at trial.

BURNETT: So, when you went through everything and all the information you had, right, you recommended criminal charges, you recommended investigation, I'm curious, when you go through this, he did not charge Trump with seditious conspiracy, inciting a mob. Those charges are not in here. Does that surprise you or does that disappoint you?

HEAPHY: No. He charged the two lead counts or the exact two that the Select Committee referred for his consideration, obstruction of an official proceeding and conspiracy to defraud the United States.

Seditious conspiracy, we considered and did not include that in our criminal referral. That requires a prosecutor to prove intent to use force. There was evidence of that against the Proud Boys and the Oath Keepers.

We looked very hard for evidence that the president was in communication with or somehow was aware of their plans or their actions, and we weren't able to establish it. It doesn't mean it isn't there, we just weren't able to establish it. The special counsel has not either. Otherwise, you would have seen a seditious conspiracy count.

He is -- you're not going to issue an indictment of absent proof well beyond a reasonable doubt in a case of this magnitude, and I'm not surprised at all that he chose obstruction of the official proceeding. Doesn't require any intent to use violence but rather in terms to obstruct, interfere or impede the joint session. We found that, and he has only gotten more evidence since then.

BURNETT: All right. As you pointed out, you thought he would need to go responsibly with what he felt he could prove beyond a reasonable doubt, obviously requiring a unanimous jury for conviction here. Thank you very much, Timothy. I appreciate your perspective.

HEAPHY: Thank you.

BURNETT: Laura?

COATES: You know, my panel is still here with me in Washington, D.C. There's something that keeps going in my head, everyone, about this. That is the notion of the First Amendment aspect of it and especially what is happening in terms of whether or not Trump is going to be able to build a defense, really, in this case.

And so, you've got his allies in Congress rushing to his defense, as you well know. But his lawyer was actually on with Kaitlan Collins earlier and -- well, listen to what he had to say about the First Amendment issues.

(BEGIN VIDEO CLIP)

JOHN LAURO, TRUMP ATTORNEY: The ultimate request that Mr. Trump made to Vice President Pence was pause the vote counting, allow the states to weigh in, ultimately, and audit or recertify. And under Article 2, Section 1, Clause 2, the actual responsibility for qualifying electors is in the state legislatures.

Mr. Trump had the advice of counsel, Mr. Eastman, who was one of the most respected constitutional scholars in the United States, giving him advice and guidance. That's pure politics.

(END VIDEO CLIP)

COATES: What do you, guys, think? I mean, the idea, talking to lawyers here about this, advice of counsel, is that going to be the ultimate protection? As long as your lawyer told you to do so, that's it.

NORM EISEN, CNN LEGAL ANALYST: It has already been litigated before Judge Carter in California when John Eastman tried to resist turning over documents to January 6th. He says, oh, attorney-client privilege, but there's no privilege when the lawyer is helping the client commit a crime.

[23:15:00]

What my friend, John Lauro, said about the Constitution, you can turn that document upside down and sideways. You will not find the power that he's describing in the Constitution. The notion that Pence, for the first time in American history, had the power to pause is purely ministerial. I mean, he's basically the guy -- if we're in England, he'd be the guy who walks in with the mace and the funny hat.

(LAUGHTER)

He has no power to pause that proceeding. It's not in the Constitution. Trump knew that full well. Pat Cipollone, his White House counsel, Jim knows. Pat Philbin, the Deputy White House counsel, one of our most brilliant constitutionalists, and many other people told himself, that will not wash. I don't even think the judge is going to let them make that argument to the jury. It's so far outside the pale.

COATES: You agree?

SHAN WU, DEFENSE ATTORNEY: Well, the advice of counsel defense is a little bit different than that because Trump wants to argue that it's not my fault, I had no say in mine, I was relying upon my lawyers. That's what makes the naming of those -- well, not the naming, our discovery of the identity of those co-conspirators so intriguing. They're all lawyers.

And one aspect of this is maybe Smith is in a big hurry-up mode, couldn't completely finish everything before he indicts. But the other offensive strategic point is it takes those people off the table. It's very hard to decide to go and testify in favor of the defense if you're named as a conspirator. You've got a big Fifth Amendment concern at that point.

COATES: I mean, the idea of -- I mean, can you walk past every road that says, common sense, common sense, obvious, obvious, and go, you know what, I like this one over here. That's what he's essentially would have to say because you've got the attorney general, you've got the deputy attorney general, you've got a White House counsel, you're a former Trump White House lawyer.

I mean, you have all these people who are saying, including secretaries of state and beyond, what you are saying is not true, and the complaint says, you know that's not true. Can you really say, look, I was just following my counsel or were they following him?

JAMES SCHULTZ, FORMER TRUMP WHITE HOUSE LAWYER: Again, I think that's why he's the only named defendant in this case. I think that they want to make it clear that he was the one driving this and that they were just -- he was -- he got advice from a number of folks that said -- very credible lawyers, some of the best lawyers and constitutional scholars in Washington, no, you can't do this. And yet he went to others and got a second opinion

And was he driving the conversation, get the answer he wanted, or was he really just going out and seeking counsel?

COATES: I mean, this idea of plausible deniability, I mean, it's kind of a sexy concept. Except in politics, is it realistic? Margaret?

MARGARET TALEV, CNN POLITICAL ANALYST: It's -- you know, I'm not a lawyer, but this goes beyond the attorney-client, to me, argument. It's the case that political speech is that broadly protected. I mean, that's really fundamentally the case that John Lauro is making, that you could almost use political speech as a shield to do anything as long as you're doing it while being a political candidate.

And I think we've been looking at this as though it's -- as though that is a political argument like that couldn't possibly be a plausible legal argument. But if you're looking at a Supreme Court that is actually more conservative than the court that gave us Citizens United, I think it's worth asking the question, like, what if that was a plausible argument? What would happen to the American presidency?

What would happen to the political system if a candidate for a president or a sitting president who was trying to hang on to the presidency could essentially say anything and make moves at anything because it's protected speech?

COATES: But yet there is more to what John Lauro was saying to Kaitlan Collins in the full interview. He does talk about the idea he believes, and he's saying this, that it is this indictment that is turning the notion of political speech and on its face.

It's essentially saying, you mean, I can't just have a political strategy? I can't be critical? I can't bet on a particular strategy and I'll be punished? Is that going to be a good talking point that will have staying power?

SHERMICHAEL SINGLETON, REPUBLICAN STRATEGIST: I think it'll be a good talking point for the Republican Party. I'm not certain about the individuals in the middle, however. I think Norm sort of laid this out pretty clearly. The way this indictment was written, and I've had some time to read through it, it's pretty clear. It's a pretty simple narrative. Most people can generally understand it.

This guy did something illegal. He lost. He tried to pretend that he won. He tried to find fake votes that weren't there. People get that this stuff is absolutely wrong. And so, this idea of like this divine right of kings theory, Norm, you know a lot about that, that a president can say whatever --

COATES: A lot of England talk happening tonight. A lot of -- we are in the United States, people. But go ahead.

SINGLETON: People just don't believe that the president should be above the law, regardless if it's a Democrat or a Republican. And so, I think trying to make a cogent point to the American people, particularly those in the middle, that Donald Trump is, just will fall on deaf ears.

COATES: What do you think? I mean, the polling and the way that it's being described, I mean, it's -- Shermichael is right in both the severity and the gravitas, but there are people who are like, okay, so what?

KRISTEN SOLTIS-ANDERSON, CNN POLITICAL COMMENTATOR: I think a lot of this is already priced in because, as we heard, you know, in the January 6 Commission, we've already heard a lot of these details before. There are some new things in here.

[23:20:00]

Mike Pence being told you're too honest. You know, there are little things that might be new at --

(CROSSTALK) But in general, the narrative is pretty similar. And so, if you came into this day already believing that Donald Trump is a criminal, he's terrible, and he tried to overthrow an election, this validates you. But if you woke up this morning thinking Donald Trump got done wrong in 2020 and ever since then the Biden administration has been coming after him, today validates that for you.

So, I don't think this alone moves the polls. What could move the polls is, as this advance, do Republicans really start to stare down the barrel of the reality that they're going to nominate a guy who might be going to prison?

And does that actually spook Republicans, not to say I think Donald Trump is wrong on the merits, but to go, are we really going to do this? Are we going to risk giving Joe Biden another four years by going with Donald Trump?

EISEN: He might be going to prison four times. We're talking about four major felony cases. Don't discount that Alvin Bragg case. That's not a hush money case. Donald Trump falsified documents to cover up hush money payments to interfere with the 2016 election. It was the gateway drug for this federal prosecution, and that can carry jail time in New York State.

COATES: The lawyer in me says, allegedly. There you go. I can't do it. The lawyers know why. Everyone, stand by. Erin, you have some new reaction from some of Trump's rivals, I understand.

BURNETT: Right. And Laura, this goes to the heart of what you're saying, right? People -- everyone -- no one is above the rule of law. Well, true, except for if you're just going to question whether the rule of law itself is even fair, and that's what's happening from Tim Scott.

So, Tim Scott has just come out responding to the latest Trump indictment. I remain concerned about the weaponization of Biden's DOJ and its immense power used against political opponents. What we see today are two different tracks of justice. One for political opponents and another for the son of the current president. We're watching Biden's DOJ continue to hunt Republicans while protecting Democrats.

So, questioning the rule of law itself and Tim Scott getting in line, I guess, would be the way to describe it, Scott.

SCOTT JENNINGS, CNN POLITICAL COMMENTATOR: Yeah, this is the majority opinion of the average rank-and-file Republican. You could have pulled that right out of a poll that was, I'm sure, taken sometime in the last two weeks, because Republicans -- here's the way Republicans see it, most of them.

Got the DOJ last week colluding with the Biden family's lawyers to get a blanket immunity deal for Hunter. The next day, they're piling on more indictments on Trump and some random, you know, Portuguese immigrant who works at Mar-a-Lago. Today, you have this while everybody seems to be ignoring the whistleblowers and the evidence of Biden family corruption. So, the average Republican believes that. You see this channeled in Tim Scott's statement. You see it channeled in Ron DeSantis's statement. And the reason they're channeling it is because they're hoping for a day when Donald Trump evaporates like something happens, like he's not in the race anymore --

UNKNOWN: Yeah.

UNKNOWN: Right.

JENNINGS: -- which is not something they can affect, by the way. And they want to be able to pick up the bulk of the party that believes exactly what you just read.

BURNETT: Well, okay. And you had Will Hurd on, obviously, being at different point of view. You had Asa Hutchinson on earlier, different point of view. Chris Christie comes out, slams. The disgrace falls the most on Donald Trump. He swore an oath to the Constitution, violated his oath, and brought shame to his presidency. Chris Christie has a 70% negative approval rating among the GOP. Well, that's why, because he says this, they don't want to hear that.

JOHN AVLON, CNN SENIOR POLITICAL ANALYST: But it's the truth. And I think part of the question we're dealing with right now in this country is, how much does -- how much do facts matter? We need to conduct a fact-based debate in this country so we can reason together.

Tim Scott, I think he is a good man, presenting a generally optimistic vision in an overwhelmingly negative republican field. What he said, the idea that this represents two tiers of justice in this country, is fundamentally factually wrong. This indictment shows that there is one standard of justice, that no one is above the law.

And this is about -- take a step back from politics. This is about the most serious historical moment we've had in our country in a long, long time where a former -- where a sitting president tried to overturn an election on the basis of a lie. And this lays it out fact by fact.

And so, folks want to engage in magical thinking and not read this indictment as a matter of pride. They are engaging in willful ignorance for short-term political expediency, no doubt, but it doesn't make it right, and we shouldn't dignify.

JENNINGS: One other quick and I know, Laura, you're going to weigh in, there is an emerging theory on the right tonight about that even people who believe January 6th was horrible, that Trump violated his oath of office, whatever, that it is possible to believe that he was totally wrong and immoral and shouldn't hold the presidency again, but that you also don't have to also believe that he should have been charged with a crime.

So, I'm starting to see people on the right tonight parsed out. I don't agree with January 6, I think he was wrong, this indictment seems thin, I wish they hadn't done it. AVLON: I just want to remind folks that the argument that the senators made, who didn't vote to impeach the second time around, was this is an improper way to handle this, it should be done through the legal system, and the Justice Department give it time when he's a private citizen.

BURNETT: So that they're consistent.

[23:25:00]

All right, now, you all have had a chance to go through this in more detail. So, Ryan, you've got some more things that stand out to you in here. Like what?

RYAN GOODMAN, CO-EDITOR-IN-CHIEF, JUST SECURITY: I think the one that stands out to me that I hadn't seen in the first instance is the kind of a roadmap for state and local prosecutors. When the indictment does raise new allegations that we did not know of before, for example, Arizona, there's evidence here that says that Trump and Giuliani and Eastman, when they called the House speaker, Rusty Barrows, what did they ask him to do? To do things that violated his oath by telling him, can you get your legislator to overturn the popular vote? Arizona is currently investigating the false electors.

BURNETT: Right.

GOODMAN: Will they also investigate them? Similarly, in Georgia, this is going to put booster rockets in a certain sense on the Georgia criminal indictment if it comes, because there's very strong evidence here that Trump very much knew when they filed litigation that he was entering false statements.

In fact, he was even told by Eastman, we can't certify this because we now know it's false. And what do they do? Eastman and Trump certified it. So, there are things like this in all of the states.

And then there's another line in there, it's paragraph 66. They say the false electors are at the direction of Trump and Giuliani. That's also new information across all the seven states, which I don't know if this changes politics in any which way, but it maybe brings it home to the states of people if their state prosecutors and local district attorneys do want to take it up or investigate Giuliani, for example.

BURNETT: Which is amazing. You're now talking about, wow, okay, a whole lot more. I mean, in terms of this docket and how many more indictments could be coming in various jurisdictions.

But Karen, one thing about this and what's in it and not in it, is that, from your perspective, this is designed to move as quickly as something can move?

KAREN FRIEDMAN AGNIFILO, CNN LEGAL ANALYST: Yeah, that's what's really brilliant about this indictment. At the same time, it's a 45-page complicated factual scenario yet incredibly simplistic, right? There's one defendant, four charges. That's it. So, there's really one set of defense motions that will be made, one set of defense lawyers who will be saying, I can be ready, I can't be ready, Jack Smith and his team.

You know, it's just so streamlined. There are no classified documents involved here, so they don't have to worry about people getting top secret clearance or -- all of the complexities with the Mar-a-Lago case and the different defense attorneys that are going to cause delays, all the different motions and motions to sever, and all of the things that will happen. Here, there's none of that. It's just one defendant, four charges.

BURNETT: It can go fast.

FRIEDMAN AGNIFILO: It can go quickly, and I think it has the best chance of all of the indictments against Trump of going before the election.

BURNETT: Which is very significant to say because, obviously, it's not the last, but we're at the tail end of a whole host of them that have been coming over many months. And to that point, Elliot, what stands out to you is what is not charged.

ELLIOT WILLIAMS, CNN LEGAL ANALYST: Yes, exactly. In order to have a streamlined indictment, there are probably decisions that had to be made on things that couldn't be charged. And, you know, we've spent the greater part of the last two years or so debating the question of whether the former president would be charged with things like seditious conspiracy or inciting violence or so on.

I actually think here that it wouldn't be incredibly hard to tie the president to some of those things. So, for instance, seditious conspiracy, you'd have to prove some agreement to use force or threats to prevent, hinder or delay the execution of American law. Now, that happened, and many people were already convicted of it

But tying the president to that would have been incredibly difficult and you would have also run into some pretty serious First Amendment free speech.

BURNETT: Explicit versus implicit.

WILLIAMS: Explicit versus implicit. And all of those things from his speech, which were disgraceful, shameful for a formal president, unbecoming, not befitting the presidency, but I don't know if you could charge them as crimes, given the fact that he was a candidate and so on. So, it would have been incredibly difficult to do.

And then the other thing -- so that's what's not in the indictment. The other thing that I just think will be interesting over these months is what proof or how the Justice Department establishes that civil rights claim, the deprivation of rights in some way that the president engaged in. Was he depriving voters of their rights to a free and fair election? Was he depriving Mike Pence of the ability to do his job? Both of which could be established under that section of the code there. It's not entirely clear how they're -- sort of how they establish that, and I think it'll just be interesting over the months to see what establishes it?

BURNETT: All right. All stay with me. Laura?

COATES: This is really where the rubber is going to meet the road, as you know, as Elliot talking about how do you actually prove the case because that really is the next step if you are Jack Smith.

And up next here, Michael Fanone, who was attacked on January 6th, joins us to react to this indictment. This is CNN special live coverage.

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BURNETT: Former President Trump indicted today for his efforts to overturn the 2020 election, leading up to the January 6th attack on the Capitol. But in the face of these new criminal charges, Trump's allies on the Hill are coming fast and furiously to his defense.

I want to bring in our Melanie Zanona, Capitol Hill reporter. And Melanie, they're not taking a lot of time to -- I mean, they're coming in quickly with their point of view because they're -- they're purposely saying they don't have any reason to read this indictment because they already know what they think.

MELANIE ZANONA, CNN CAPITOL HILL REPORTER: Yeah. Well, actually, Republicans have been preparing the response for weeks, even before seeing the scope of the charges. And in some cases, Erin, they have been directly coordinating with Donald Trump himself about how best to defend him.

Donald Trump has spoken in recent days to some of his allies, including Elise Stefanik, trying to strategize over a messaging plan here. I'm also told that he sent talking points to Capitol Hill, arguing, at least in part, that Trump was only consulting his attorneys in the lead up to January 6th. And now, some on the right are calling to defund Special Counsel Jack Smith, though, of course, that would be dead-on-arrival in the Senate.

But Erin, I am expecting Republicans to ramp up their focus and investigations into the Biden family. In fact, a number of Republicans in their statements today suggested without evidence that this indictment was purposely timed to coincide today, to come one day after they heard testimony from a Hunter Biden business associate.

[23:35:02]

I want to read you part of Speaker Kevin McCarthy's statement. He said, everyone in America could see what was going to come next. DOJ's attempt to distract from the news and attack the frontrunner for the Republican nomination, President Trump. House Republicans will continue to uncover the truth about Biden, Inc. and the two-tiered system of justice.

Though, Erin, I think probably the most remarkable statement was from Marjorie Taylor Greene tonight who said she was still going to vote for Trump -- quote -- "even if he was in jail." So just really summing up the state of play in the Republican Party right now.

But notably, we did not hear from Senate GOP leader Mitch McConnell. He has been silent throughout all of the indictments and legal troubles facing former President Donald Trump. So really a tale of two Republican leaders there.

BURNETT: All right, Melanie. And as Melanie is talking about Marjorie Taylor Greene, John, you were --

AVLON: I think it's called a facepalm.

(LAUGHTER)

BURNETT: I was trying to figure out the best way to describe it. But it was -- it was pretty notable.

AVLON: Yeah. But I mean those are the stakes. As a practical matter, if Republicans go for it and nominate Donald Trump, they could very well be nominating someone who is facing prison time. And as Marjorie Taylor Greene just said, she would vote for him if he is in prison.

Now, according to The New York Times-Siena poll, there seems to be around 37% of Republicans who may be in that same camp, will support him no matter what. But the rest of the Republican Party, the majority of the Republican Party, needs to understand that if they nominate someone with this kind of baggage, that has -- that is kryptonite when it comes to appealing to independent voters, moderates, and moderate Republicans.

BURNETT: Yeah. All right, Laura?

COATES: So much more to unpack about that. I want to play more, by the way, of what Jack Smith said tonight.

(BEGIN VIDEO CLIP)

SMITH: -- defended the U.S. Capitol on January 6 are heroes. They are patriots and they are the very best of us. They did not just defend a building or the people sheltering in it. They put their lives in the line to defend who we are as a country and as a people. They defended the very institutions and principles that define the United States.

(END VIDEO CLIP)

BURNETT: One of the people trying to hold that line is CNN law enforcement analyst and former D.C. Metropolitan police officer Michael Fanone. Michael Fanone, I'm so glad that you're here tonight. I've been wondering what you have been thinking about all this. What is going through your head tonight after this indictment came down? MICHAEL FANONE, CNN LAW ENFORCEMENT ANALYST: When I first learned about the indictment, I had a long conversation with a friend of mine, Ryan Reilly, and I told him how proud I felt to be an American at that moment. Much in the way that I did when I learned that our military had killed Osama bin Laden. I just felt incredibly proud.

COATES: These two seem comfortable to you?

FANONE: Incredibly proud to have been --

COATES: I'm sorry, I don't want to cut you off, but why that comparison in particular?

FANONE: I believe they're comparable.

COATES: In what way?

FANONE: Absolutely. Osama bin Laden was a terrorist who committed a horrific act against American people and against our republic. And I believe that Donald Trump is a terrorist who committed horrific acts against the American people.

COATES: You can imagine that is a very eyebrow-raising statement, to say the least, the notion of Osama bin Laden in comparison to Donald Trump. It likely speaks to just how deeply you have been concerned and have felt about all of this. But are you concerned that statements like that or the rhetoric surrounding what his role has been is going to cloud people's view of this indictment as a fair process?

FANONE: I think that the only person or people whose view matters with regards to this indictment are the jurors who will eventually be sat and listen to the facts and ultimately make a judgment as to whether or not Donald Trump is guilty of the charges that Jack Smith and the Department of Justice have brought forward.

COATES: The DOJ, as you know --

FANONE: Other than that, what I say -- what I say or what Republican lawmakers say is just, you know, shit to take up time on cable news.

COATES: Well, I do appreciate the way you want to spend my evening, but I do want to hear what you understand and what you think about this truly, Michael, because when you think about what we were all watching on January 6 and seeing the events unfold, this indictment talks more than just what happened on that day.

[23:39:56]

It talks about what led up to it as well and not the moments, the hours that were spent by you and so many of your brave colleagues trying to hold the line and defend, really, the seat of democracy as the judge talked about today. But you've been concerned consistently about whether people would really face consequences for what happened on that day in particular as well.

When you read through this indictment, you're a former member of law enforcement, so indictments, you're no stranger to, and the idea of what's charged and some of the reactions to it, when you read through this indictment, saw these charges, is it enough? Does it not go far enough?

FANONE: I mean -- again, I've talked about this before. I think that and you know, as a former federal prosecutor, you know, Jack Smith's job is to pursue the clearest charges against Donald Trump.

I know that there are friends of mine, colleagues, people that were there with me on January 6 that would have preferred charges that more associated Trump with the violence of that day. I get it. But at the same time, I think it's most important that you present charges in which Jack Smith feels that he can secure a conviction.

But regardless of that, I think today is significant. At least to me, it represents the end of two and a half years of advocating for this. Donald Trump was indicted not because he's Donald Trump the asshole, but because he's Donald Trump, a former president, wealthy, white male, literally checks all the boxes of the entitled and privileged in this country who normally circumvent any type of accountability for the crimes that they commit.

But there was evidence that he committed crimes. There were courageous Americans at the Department of Justice who put their careers and their safety on the line to pursue this investigation and secure an indictment. against Donald Trump. We should be celebrating that.

COATES: You've never hidden how you feel about him and your personal opinion of who he is. But I always find it interesting, you and I have had these conversations before, about this notion that there seems to be an epiphany to some people that we are a nation that has more appeal to the haves than the have-nots and our justice system can oftentimes really showcase that.

And yet the way it's being talked about, the way that there's a so- called two-tiered system of justice, often doesn't apply to the conversations that officers are demonstrating and talking about and prosecutors on the, I guess, the legal front lines describing.

But one of the questions now there's been an indictment, do you think that Trump will ultimately face consequences for his role as alleged on January 6th?

FANONE: I think that he will be tried. I don't know, you know, what's your definition of consequences.

COATES: What's yours?

FANONE: And to be honest with you -- I mean, honestly, if you're asking me personally, well, don't bait me into something I can't say on cable news.

COATES: I think we passed that part about three minutes ago, Michael Fanone, but okay, keep going. That's fine. We turned left, we turned right, now we're here again. FANONE: I mean, I'll tell you, Laura, I think that, you know, Donald Trump should go to prison for the rest of his life. And I would hope that, you know, he would have a stroke and live forever. That's what I would like to see happen to Donald Trump.

But again, I mean, that's just, you know, me personally. What's important is that the rule of law was upheld. That -- you know, that old adage that, you know, we told each other over and over again in our careers in law enforcement, you and me, that no one is above the law, well, today, you know, I actually believe that because here we are with a former president who has been indicted and now has to face the criminal justice system. Not a position that I would want to be in.

COATES: Michael Fanone, you know, I know you as an officer as well, and I know that one of the things that you strongly believe in, and I know that there is a lot of extraordinary feelings you have about this issue personally, but I know you stand true to the presumption of innocence and that presentation of evidence that's coming in the next set of this. We'll see how the trial actually goes in this event. Thank you so much. Nice talking to you.

[23:45:00]

FANONE: Yes, ma'am. Thanks for having me.

COATES: Erin?

BURNETT: All right. Well, Laura, coming up, the lead counsel in then President Trump's first impeachment, Daniel Goldman, will be with us next.

(COMMERCIAL BREAK)

BURNETT: Well, former President Donald Trump, of course, is now indicted for his efforts to overturn the 2020 election and is set to appear before a judge in Washington on Thursday. So, the arraignment is going to come very quickly. Special counsel Jack Smith making it clear he's pushing for a speedy trial.

(BEGIN VIDEO CLIP)

SMITH: My office will seek a speedy trial so that our evidence can be tested in court and judged by a jury of citizens.

[23:50:00]

In the meantime, I must emphasize that the indictment is only an allegation and that the defendant must be presumed innocent until proven guilty beyond a reasonable doubt in a court of law.

(END VIDEO CLIP)

BURNETT: I want to bring in New York Congressman Daniel Goldman. He was also the lead counsel in then President Trump's first impeachment and part of the reason, of course, so many knew his face long before now. So, Congressman, I appreciate your time. Forty-five pages in this indictment. As an attorney, what have you learned?

REP. DANIEL GOLDMAN (D-NY): Well, it is a sweeping and powerful indictment that lays out a series of escalating efforts that went from the legal to the grossly illegal for -- that Donald Trump led in trying to overturn the election and install himself as the unrightful president of the United States. I think the number of different tentacles of this conspiracy is quite alarming.

BURNETT: You mentioned Jeffrey Clark, and he is, of course, one of the six co-conspirators mentioned. Now, we have identified five of them. Rudy Giuliani, John Eastman, Sidney Powell, Jeffrey Clark, and Kenneth Chesebro, right? All attorneys or, in the case of Mr. Clark, at the time, a member of the Justice Department. There is a sixth, a political consultant that we have not yet named.

These six individuals, though, congressman, we do not know if they have been indicted yet or not. It does not say that they are unindicted co-conspirators. It just says co-conspirators. What do you read into this

GOLDMAN: Well, I read that they wanted to have an individual and separate indictment of a former president of the United States because of the importance that he has, the fact that there's a special counsel only because Donald Trump was the subject of this investigation.

But if I were any of those six co-conspirators, I'd make sure I have my lawyer on speed dial, and I would expect that unless they come in and cooperate, which I doubt they will at this point, that they will be on the other side of the V in an indictment in the near future.

BURNETT: So, there are several things in here that we learned. You know, just from one of the basic things of -- you know, Trump having a meeting in the Oval Office with his national security team well after he'd lost the election, when he at the end, he says, oh, yeah, you know, it's too late for us, that's for the next guy. You know, making it very clear he knew he'd lost. I mean, there's details like that in here.

There's also the detail that the vice president, Mike Pence, took notes. And apparently, he was a very detailed note-taker, taking contemporaneous notes during his meetings with Mr. Trump. It notes, in one instance, Pence takes notes saying, Trump falsely tells him that the Justice Department was finding major infractions.

Another time, Pence mentioned taking notes is when Trump makes knowingly false claims of election fraud, including the -- "bottom line -- won every state by 100,000 votes" and "we won every state."

Now, I was talking earlier to Olivia Troy, who, as you know, of course, worked for the former vice president. She said he was a very detailed note-taker, that he would use a black Sharpie and index cards. So now, we know this and we know that he was providing these notes to the DOJ. How big of a role do you think his notes could play?

GOLDMAN: Well, there are those notes and remember Richard Donoghue has the notes about when Trump said, just say it is corrupt and leave it to me and the Republican congressman --

BURNETT: Right.

GOLDMAN: -- which is mentioned in the indictment but not referred to the notes. Notes -- contemporaneous notes are very powerful corroboration when a defendant -- a defense counsel tries to undermine the credibility of a witness because you have real-time recording of what the individual said. And so, it's another element of proof because it corroborates and builds credibility for what the witness said.

But Erin, you really did point out one thing that jumped out at me, which was that conversation about foreign affairs, international and national security issues unrelated to the election when Donald Trump says, well, 17 days before the inauguration, well, we'll leave this to the next guy to deal with. That is an admission that he knows that he lost before January 6.

And his efforts to convince, to say it nicely, Mike Pence to throw the election for Donald Trump, that is a critical, critical piece of evidence --

BURNETT: Yeah.

[23:55:01]

GOLDMAN: -- because the defense will be that Donald Trump is such a narcissistic sociopath that he actually believed his own false statements and his own disinformation, and therefore he doesn't have the necessary mens rea of the intent and knowledge to commit a crime.

That's not a legitimate defense when you are faced with facts and you just simply choose not to believe them. That would mean that almost no defendant could be ever convicted of fraud. But that is unquestionably the too crazy for conviction defense that they will have. That specific statement is going to be very important.

BURNETT: Right, is damning in that regard. Although interesting, as you say, your best defense is being a narcissistic sociopath. I mean, that's the way they go. You know, yes, you were told a million times that this was false, and yet you continue to perpetuate the lies.

Congressman Goldman, thank you very much. I appreciate your time.

GOLDMAN: Thank you.

BURNETT: All right, and my panel is back. Karen, one thing that the congressman was just talking about, we were talking about this incident, where there's a meeting on the evening of January 3rd, the president and national security team are together. They're talking about an incident that has nothing to do -- a situation has nothing to do with this. And, you know, actions are recommended.

And the defendant, President Trump, calmly says, yeah, you're right, it's too late for us, we're going to give that to the next guy. Look, this immediately stood out to all of us as very significant because he's clearly acknowledging there's going be a next guy, and he lost on January 3rd, before January 6th, and two months after the election.

It is, however, in this 45-page indictment, the only example like that in here. Doesn't mean it's the only one Jack Smith has, but it's the only one that's included.

FRIEDMAN AGNIFILO: Right. Look, Jack Smith is not going to put every single fact in the indictment, just enough to tell a story. You'll get more of those facts at trial. For example, Alyssa Farah Griffin, who is often a guest on CNN or --

BURNETT: Right. She was even earlier tonight.

FRIEDMAN AGNIFILO: Exactly. She talks about when Trump says, I can't believe I lost to this effing guy, right? That was a statement he made acknowledging that he lost. There are these glimmers of it that he -- how did he not know? He lost 60 court cases, right? More than 60 court cases. He knows he lost. He was just looking for an answer. And there are those glimmers in there. And I think that is a -- that's a crumb in the indictment.

BURNETT: It is so amazing to me, though, in all of this, that, you know, it's like someone comes to you and says, the sky is purple, and then the burden is on you to prove that they don't know it's purple. When the whole world looks up and sees that it's blue, I feel like that's kind of where we are on this.

Of course, the guy knew he lost the election, right? I mean -- and yet you have 45 pages trying to prove that he knew he lost the election. I mean, it's just something sort of stunning just to -- I don't know if my blue sky analogy works, but it's sort of how it comes across.

WILLIAMS: You're identifying reckless disregard of the knowledge of the color of the sky. Someone is allowed to believe that the sky is purple. But if they receive advice from their attorney, the head of -- the director of National Intelligence, the attorney general of the United States, and any number of people around you saying, no sir, I'm providing you concrete legal advice that the sky is in fact blue, you can be found guilty of believing the sky is blue -- purple, sorry.

BURNETT: I mean, it is just amazing. We do, Ryan, have a statement just coming out from John Eastman, who is one of the co-conspirators, his attorney, saying that Eastman will not plea, that there will be no plea, no cooperation. He says, if he were invited to plea bargain with either state or federal prosecutors, he'll decline. The fact is if he's indicted, he'll go to trial. If convicted, he'll appeal. And he also says that the indictment relies on misleading presentations.

GOODMAN: So, I think if he does go to trial, he'll be convicted. The evidence here is very strong. But it also does set up something kind of interesting which is that he might try to defend himself in ways that will hurt Trump. That's what's happening right now in California where there's a proceeding to have him stripped of his bar license.

BURNETT: John Eastman.

GOODMAN: And John Eastman has said, I never told the president that Vice President Pence could reject the electors. That would have been illegal. And what is happening in paragraphs 92, 93 of this indictment? It alleges that John Eastman told the president just that.

I don't think Trump would like to hear that because then it would be him saying, nobody told you that, President Trump, that you could suggest to Vice President Pence to reject the electors out of the seven states because that would be patently illegal. So, it actually sets them up against each other if that's the road.

BURNETT: Even without pleading, he's throwing someone under the bus.

GOODMAN: Very well could be if that's his defense.

FRIEDMAN AGNIFILO: Trump's whole defense is, you know, I relied on my lawyer. And if his lawyer, as Ryan is saying, says, no, I never told him that, right, that throws his defense out the window.

BURNETT: Right, which is all incredible. And Laura, just the unprecedented territory we're in. I mean, as I said, we're having a whole discussion about whether someone should know the sky is blue.

[00:00:00]

COATES: It's unbelievable. Think about it. I mean, three indictments in four months. And by the way, it's only Tuesday, everyone, and we're only in August.

Thank you for watching.

BURNETT: It's about to be Wednesday, Laura. It's about to be Wednesday in 20 seconds.

COATES: Oh, you know what? Three, two, one. You're right. Thank you for watching, everyone. It's time for us to go to bed. Start a new fresh day tomorrow. But our coverage is going to continue.