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Erin Burnett Outfront

Supreme Court Seems Skeptical Of Barring Trump From Ballot; DOJ: Biden "Willfully" Held Classified Info, Won't Face Charges; Moments Away: Biden To Address The Nation. Aired 7-8p ET

Aired February 08, 2024 - 19:00   ET

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

[18:52:04]

ERIN BURNETT, CNN HOST: OUTFRONT next, two major developing stories tonight.

First, the Supreme Court weighing in. The justices sending strong signals about how they'll rule in that Colorado ballot case. The attorney who argued before the highest court to kick Trump off the ballot is OUTFRONT tonight.

Plus, no charges. The special counsel in the Biden classified documents case says the president didn't break the law. But his report now raising questions about Biden's memory.

And if its election night, it's John King night. It's going to be at the magic wall. The winner of Nevada, maybe already baked in. But there are important things to know.

Let's go OUTFRONT.

And good evening. I'm Erin Burnett.

And OUTFRONT tonight: we begin with the skeptical Supreme Court. A historic hearing in Washington and an ideologically divided Supreme Court, seemingly unified in questioning whether Colorado can kick Trump off the 2024 ballot. The reason, of course, Colorado is trying to do that is because of the insurrection clause in the 14th Amendment.

The nine justices, the Supreme Court had tough questions about the wisdom and effect of disqualifying the Republican front runner.

(BEGIN AUDIO CLIP)

JUSTICE SAMUEL ALITO, SUPREME COURT: We've been told that if what Colorado did here is sustained, other states are going to retaliate, and they're going to potentially exclude another candidate from the ballot. What about that situation?

JUSTICE ELENA KAGAN, SUPREME COURT: Why should a single state have the ability to make this determination not only for their own citizens, but for the rest of the nation?

JUSTICE BRETT KAVANAUGH, SUPREME COURT: Your position has the effect of disenfranchising voters to a significant degree.

JUSTICE KETANJI BROWN JACKSON, SUPREME COURT: But then why didn't they put the word president in the very enumerated list in Section Three? They were listing people that were barred, and president is not there.

(END AUDIO CLIP)

BURNETT: And president is not there.

I want to point out again, of course, that was Ketanji Brown Jackson nominated by President Biden. That was Brett Kavanaugh, nominated by Trump. Elena Kagan nominated by Obama, and Samuel Alito nominated by George W. Bush, right?

For different presence nominated those four different justices, all of them conservative and liberal, expressing skepticism as to whether Trump should be removed from the ballot in Colorado. But the lawyer arguing to keep Trump off the ballot, which was a decision, of course, made by the Supreme Court in Colorado, the highest court in that state answered each of those questions, trying to make his case.

(BEGIN AUDIO CLIP)

JASON MURRAY, ATTORNEY REPRESENTING COLORADO VOTERS: The framers were concerned about charismatic rebels who might rise through the ranks up to and including the presidency of the United States.

(END AUDIO CLIP)

BURNETT: Now, in a moment, I'm going to speak to the attorney that you just heard there, Jason Murray, who liked the rest of the country is now waiting for the Supreme Court to likely fast track a decision, a decision that could affect this entire country. And it is a decision that the former president also believes will go his way.

[18:55:02]

(BEGIN VIDEO CLIP)

DONALD TRUMP, FORMER U.S. PRESIDENT & 2024 PRESIDENTIAL CANDIDATE: In watching the Supreme Court today, I thought it was very -- it was very beautiful process.

(END VIDEO CLIP

BURNETT: A beautiful process when it goes his way, appears to.

Trump didn't stop there, though. He then went on to repeat a litany of lies.

(BEGIN VIDEO CLIP)

TRUMP: I think it was an insurrection caused by Nancy Pelosi.

(END VIDEO CLIP) BURNETT: Of course, that's false.

(BEGIN VIDEO CLIP)

TRUMP: If it was an insurrection, which there were no guns.

(END VIDEO CLIP)

BURNETT: That's false as well. It has been proven in court that some of the people who illegally entered the Capitol grounds on January 6 were armed with guns.

Well, Jessica Schneider begins our coverage OUTRONT live outside the Supreme Court on this historic day.

So, Jessica, you know, we heard the audio there. We heard what happened today. What happens now?

JESSICA SCHNEIDER, CNN JUSTICE CORRESPONDENT: Well, you know, Erin, the justices really could move quickly here. Consider this, back in the year 2000 when they heard Bush v. Gore, they decided that case one day after the oral arguments. Now granted, that was a completely different scenario and the inauguration was just weeks away, but time is still of the essence here. We were in primary season, the general election isn't that far away.

And really, the thing is if -- whether it's weeks or days, it really does seem like these justices will be coming down on Trumps side, Erin.

(BEGIN VIDEOTAPE)

SCHNEIDER (voice-over): Stiff resistance from conservative and liberal justices on the Supreme Court, pushing back against arguments for taking Donald Trump off the 2024 ballot.

CHIEF JUSTICE JOHN ROBERTS, SUPREME COURT: It will come down to just a handful of states that are going to decide the presidential election. That's a pretty daunting consequence.

SCHNEIDER: Chief Justice John Roberts led the sharp questioning, asking whether individual states should be able to decide for themselves which candidates are ineligible for office based on the constitution's insurrection clause. The 14th Amendment says certain elected officials, including an officer of the United States, are prohibited from holding office if they have engaged in insurrection against the United States.

Several of the conservative justices warned that allowing states to decide could create chaos.

ALITO: There will be conflicts in decisions among the states that different states will disqualify different candidates. But I'm not getting a whole lot of help from you about how this would not be an unmanageable situation.

SCHNEIDER: Even liberal Justice Elena Kagan expressed concern.

KAGAN: Why should a single state have the ability to make this determination, not only for their own citizens, but for the rest of the nation?

SCHNEIDER: The Colorado Supreme Court has ruled Trump engaged in insurrection on January 6, and that he should be removed from the state's ballot. But there was little discussion during arguments before the high court about Trump's role on January 6 and his ultimate responsibility. His lawyer only arguing that it wasn't even insurrection.

JACKSON: You say it did not involve an organized attempt to overthrow the government.

JONATHAN MITCHELL, TRUMP ATTORNEY: For an insurrection, there needs to be an organized, concerted effort --

JACKSON: So, my point is that a chaotic effort to overthrow the government is not an insurrection?

MITCHELL: No, we didn't concede that it's an effort to overthrow the government either.

SCHNEIDER: Justices also debated whether courts even have a role to play in this decision. Justice Brett Kavanaugh asked whether Congress should be enforcing the insurrectionist ban instead of courts. It's one of the off-ramps. The Supreme Court could choose to take with a narrow ruling that avoids confronting weightier issues.

KAVANAUGH: These are difficult questions and you look right at Section Five of the 14th Amendment as the chief justice said, and that tells you Congress has the primary role here.

(END VIDEOTAPE)

SCHNEIDER (on camera): So really the Supreme Court doesn't need to get to those core issues or those core decisions in this case, those being, you know, whether there was an insurrection, Erin, or whether Donald Trump may have committed an insurrection.

Instead, there are several so questions that do provide that off-ramp. You know, does the court even have the jurisdiction or is this really Congress's role? Does the 14th Amendment Section Three even apply to the presidency?

So, there are a lot of choices that the Supreme Court can make to not decide the big issue here. But really, all signs do point to the majority of the justices giving Trump a win here -- Erin.

BURNETT: All right. Jessica, thank you very much. Outside the Supreme Court.

And I want to go now to Jason Murray, the attorney who argued today inside that building before the Supreme Court to bar Trump from the ballot. And I'm glad to speak with you again, Jason. I know this was a momentous day for the country and certainly for you. I know your first-time arguing before the Supreme Court. One can only imagine what that is like. You were in front of two justices you had clerked for, Justices Kagan and Gorsuch.

What was the whole experience liked?

MURRAY: Well, it's always an amazing experience to be up before court and especially the U.S. Supreme Court. And there's a certain sense of pride and being able to argue in front of my former bosses.

It was certainly intense. I didn't expect them to pull any punches on a case of this magnitude, and certainly they didn't.

[19:00:01]

But we never expected that the court would be willing to do a hard thing like this without asking really hard questions.

BURNETT: And they did ask hard questions. I don't know how much you heard there because I know you've had a day, but we were playing some of the questions and skepticism that was expressed from the conservative judges, but also from two of the court's liberal judges who expressed skepticism at the arguments that you were making to uphold the Colorado Supreme Court ruling.

Here's some of what they said.

(BEGIN AUDIO CLIP)

KAGAN: This question of whether a former president is disqualified for insurrection to be president again, is, you know, just saying it, it sounds awfully national to me.

JACKSON: The thing that is troubling to me is I totally understand your argument, but they were listing people that were barred, and the president is not there.

(END AUDIO CLIP)

BURNETT: So, Jason, what specifically did you hear from the justices that gives you hope that they will rule in your favor when obviously we did all hear the skepticism expressed there?

MURRAY: Well, certainly, I think the hardest questions that they asked is whether the states have a role to place here in enforcing disqualifications for the presidency. There's a long history of states excluding ineligible candidates, whether it's because they are underage, or foreign born or failed to meet other qualifications for office.

I do think there was some sense that maybe this provision of the 14th Amendment should be different, though I think the court digs into that issue, they're going to be hard pressed to articulate a reason why disqualification should be different. And under our system, States run presidential elections. So, you know, the normal way these things work is that states decide who goes on the ballot based on who can show that they meet the qualifications for the office.

And if you are an insurrectionist who violated your oath to the Constitution, our Constitution says you don't get to run again unless you have amnesty. So I'm hopeful the court will see that, but certainly that was the big pressure point today.

BURNETT: And, Jason, obviously, this is the first time you've had a chance to do an interview and talk about what you just went through in that room. So some of those the skepticism that was expressed that I played, one of the points was from Justice Ketanji Brown Jackson. She said, but why then didn't they put the word president in the very enumerated list in section three, she continues to say they were listing people that were barred and president is not there.

I wanted to give you a chance since you were in that room, how did you read? But that particular specific question of -- from Justice Ketanji Brown Jackson.

MURRAY: The main reason why the presidency isn't listed in the 14th Amendment is because it's so obviously included. The 14th Amendment covers senators and representatives who aren't office holders in a technical legal sense. And it covers presidential electors who are not office holders. And then it covers any one who holds any office under the United States.

And we all know the president holds an office. He swears an oath of office. The Constitution calls the presidency the office of the president of the United States.

And the history is very clear that people at the time knew that phrase referred to the president. Now, one thing everybody knew, including opponents of the 14th Amendment, was that rebels like Robert E. Lee or Jefferson Davis, the head of the confederacy, couldn't have any office, including the presidency, unless they got amnesty, and historically speaking, that point was well understood.

BURNETT: So, Jason, one other question because you obviously clerked as you pointed out, you know, the pride you felt that arguing in front of justices for whom you had clerked, including Gorsuch and Kagan. Justice Kagan's question goes at what you said, what was what you felt that the biggest challenge they presented today was why one state should be making a decision for the country, right? The national versus state, the federalist question.

Justice Kagan says, why should a single state have the ability to make this determination not only for their own citizens, but for the rest of the nation, you got that question from a justice you know well, you had clerked from her. What did you say there? And what did you read into if you were able to read anything into how she took it, how she responded?

MURRAY: Well, the point we tried to make him response is that this is not Colorado deciding this question for the nation. We were asking the U.S. Supreme Court to decide this question for the nation because this is a federal constitutional question. And the U.S. Supreme Court is the last word on whether or not Donald

Trump is qualified or not under our Constitution to hold office. And certainly, it comes up to the court through Colorado courts, and that's how big cases come up all the time is through the state courts. But we tried to make the case that this is a time for the Supreme Court to rise up to a pivotal moment and enforce the Constitution even when doing so is incredibly difficult, and even when doing so is incredibly controversial. And I'm hoping that that point landed.

BURNETT: All right. Well, Jason, I very much appreciate your time.

[19:05:01]

I'm glad to talk to you again. And thank you so much.

MURRAY: Thank you.

BURNETT: All right. Jason Murray, as I said, was the one who made the argument, responded to all those questions in the Supreme Court today.

And everyone's with me now.

Ryan Goodman, you just heard Jason talking about what he thought was the key pushback of the day from the justices on one state and the country, his response to it. And also his response to the officer question, which was he said it was too obvious, essentially, to be included. Of course, the presidency is included.

What do you make of those -- you know, his responses that he gave to the justices' questions?

RYAN GOODMAN, FORMER SPECIAL COUNSEL AT DEPARTMENT OF DEFENSE: So I thought he had a bad day, maybe just a weak case. It's hard to argue the case, but it was even worse than he described it in a certain sense. I don't think the judges were justices were just focused on whether or not states can do this.

BURNETT: Uh-huh.

GOODMAN: There are questions including from the liberal justices were about how they should overturn the Colorado Supreme Court. And that's when they brought up like Justice Jackson actually said, well, if we overturn it this way just for the states, when we still have left behind the federal courts able to try to keep him off the ballot.

In other words, they've already somewhat decided the outcome --

BURNETT: They were at a procedural juncture as opposed to, you know, figuring out the merits.

GOODMAN: Yeah. Like lost on the merits and let's now fine-tune exactly how we're going to impose the remedy and just how we can make sure that it's just cleaning the entire slate apart.

So, I don't think it was a good day for him. I do think that he tried to make those arguments as best he could, but it looks like a 9-0, maybe an 8-1 decision.

BURNETT: And if it's 8-1, who is the one?

GOODMAN: It's 8-1, and I think it might be Justice Sotomayor.

BURNETT: Justice Sotomayor. Right when obviously we didn't play her, play for him. It's that.

I will say, Basil, that is what Ryan is saying is not out of the ether, right, coming into this.

BASIL SMIKLE, DEMOCRATIC STRATEGIST: Right.

BURNETT: So I think there are many attorneys, Ryan included, Ty Cobb included, is coming up who would say Jason Murray had both -- dealt a poor hand today.

But nonetheless, what do you make of the situation and the point that Ryan just said, that it appeared from some of the questioning that they were focused on the procedural ways to overturn as opposed to the merits?

SMIKLE: Well, the word or the term that comes up often is off-ramp. They're trying to find a way out. And, Jason, make some compelling and can speak to the legal parts of it, but, you know, if you're just listening to Jason, okay, yeah.

We, you know, and understand it. We actually it actually makes sense, but I think we all recognize the gravity of what the Supreme Court is being asked to do, because even if you are -- and quite frankly, I had a lot of my liberal friends wondering why Justice Jackson was asking the questions that she was asking, because they seem more pro- conservative, pro-GOP, more on the Trump side. And my about my response is this is a very serious issue.

And if we decided one way for Donald with respect to Donald Trump, always ask yourself what happens in the reverse, what happens when the tables have turned? Is there a situation where we would want this to occur among Democrats with anybody running for president or any other, any other race?

BURNETT: And yet, Scott, I will say, if you just take everything out of it, all politics out of it, there is a level that is always seemed to me of absurdity to suggest that a president would be around to try to overturn an election and that wouldn't be an officer, right? I mean, I understand there you got to have a conversation about a constitutionally, there is certainly just a level of common sense to it.

SCOTT JENNINGS, CNN SENIOR POLITICAL COMMENTATOR: Yeah, this is a non-legal opinion. I think the president is an officer of the United States. That's my --

BURNETT: Right, this is a non-legal side of the table.

SMIKLE: Right. BURNETT: Agreement on that. Yeah.

JENNINGS: But, number two, this man was investigated for insurrection and was not charged with it by the special prosecutor. Now, he is about to stand trial I think for things that happened on January 6, but they didn't charge him with these specific statute that has the word in it that is in the Constitution, and I always thought that was -- you know, for the layperson, that was the best argument was how can you toss him off or insurrection when they haven't charged him with it?

BURNETT: Right, right. There -- there's something to be said for that.

Now, can we also talk about the -- where we go from here as Jessica was laying out, she gave the example of what had happened in Bush v. Gore, that they made a decision in just a day.

Do you expect something like that in this case or no?

GOODMAN: I do expect something within the next let's say, two weeks, but could even be within the next day or a few days because the answer is so clear, its not like they have to build consensus and there's an interest -- there's a public interest in them deciding quickly just so that we reduce any chaos. There other cases that are percolating up through the courts, they can just say stop. This is decided. He's on the ballot.

Is there -- is there a possibility if this goes the way that it appears that will go and who knows, right? You got to 9-0 or 8-1 or whatever, if it goes that way, is there something, Basil that, that gives you any hope in that -- in the sense of Trump calls this a beautiful -- whatever, that if it were going the other way, it would be rigged. But I raised this very importantly, if you're going to have liberals -- some of the most liberal justices on the court vote to keep Trump on the ballot, does that in any way take the wind out of the sails of the corrupt justice system and the rigged and the broken institutions, does it do that?

SMIKLE: Well, it certainly puts the wind under Donald Trump's sails, because he'll say, look -- look at how they tried to come after me. The Supreme Court of the United States --

BURNETT: Right, he'll seize it for what it is.

SMIKLE: He'll seize it for what it is -- the justices I appointed helped make the decision to push away all of the liberal, you know, sort of angst against me.

[19:10:08]

And quite frankly, let me just say very quickly, what he'll do also is draw the line through. You see how they got it right in this instance, that's why you need to elect me because we can do more of that for the rest of your country.

BURNETT: Does it break through with any of his base that maybe the system in this country is something that can work and be proud of?

JENNINGS: Well, it depends on the day, right? I mean, is it going my way today or not?

I think though we can all take great comfort in this, I view today as the beginning of the great debt clearing. This is going to go away and will stop talking about it. The courts have I think decided and will continue to decide that the president is not immune from prosecution.

BURNETT: So, that moves ahead.

JENNINGS: That moves the January 6 case ahead.

BURNETT: Yeah.

JENNINGS: Which then can take place. And ultimately, who benefits from all this, the American voter? Well, so that they know exactly what they're dealing with when they go to vote in November, I think to not have some of this, most of it resolved, before that would be a travesty.

SMIKLE: Just very quickly. One of the things that you do raise that I do think about is how much the courts are affecting this election, where the Supreme Court of federal court, how much they are impacting this election. Isn't this what we were, A, trying to avoid after, after 2000, and B, this is why focusing on judges is so important.

BURNETT: All right. Well, yes, and we've seen that.

All right. Thank you all very much staying with us.

Our breaking news coverage continues. The White House tonight is slamming a special counsel report on Biden's handling of classified documents, no charges were filed, but it shined an explicit light and it used the word memory in talking about Biden's memory lapses.

Plus, Putin talks to Tucker Carlson. We'll tell you if there's any news in the two-hour extravaganza and the message that Putin was trying to send through Carlson.

And election night in Nevada. Why even Republicans are calling the contest rigged for Trump tonight? John King is OUTFRONT

(COMMERICAL BREAK)

[19:15:46]

BURNETT: Breaking news, a special counsel finding that President Biden willfully retained classified documents, but that he will not be charged. The DOJ releasing new images of the documents found at Biden's home in Delaware. This mangled box was in the garage inside were several folders which contain documents related to Afghanistan and also notebooks full of classified information. Biden says he used for a book he was writing.

Now, obviously, one of the most important things here still remains this, that Biden voluntarily handed everything over to investigators.

And while the special counsel said that chargers are not warranted, Robert Hur did raise questions about Biden's memory in the report the special counsel wrote specifically, quote, Mr. Biden's memory was significantly limited. And said, among other things, quote, he did not remember when he was vice president.

Evan Perez is OUTFRONT.

And, Evan, unclear what was being said there, was -- whether that was a real comment about memory or a comment about people being evasive and depositions the -- "I don't recall" that is so common in deposition.

What more can you tell us about this report?

EVAN PEREZ, CNN SENIOR JUSTICE CORRESPONDENT: Well, Erin, this is a very tough report for the president and certainly for his reelection campaign. But what the important part of this is obviously the finding that Robert Hur says that they've uncovered day -- uncovered evidence that the president willfully retained classified information, and also that he shared that classified information. He shared that information with a ghostwriter who was helping him write a memoir back in 2017, that he had these documents.

He knew he had classified documents, according to some of the evidence that they uncovered, that he knew he had that -- he had this classified information in his home when he was a private citizen and not -- no longer vice president in 2017. But importantly, Robert Hur also found that he didn't believe he could -- he found enough evidence to be able to sustain a prosecution of the president of the United States, and that goes beyond saying that even if there wasn't a prohibition on bringing charges against a sitting president, he believes there was not enough evidence to be able to prove beyond a reasonable doubt that Joe Biden knew he was violating the law.

And the number of things, not only is his memory, but also they say that some of the notes that he took, he believed he was entitled to bring home.

BURNETT: All right. So, Evan, I want to read something from the actual report. It says Mr. Biden was emphatic, declaring that his notebooks are my property and that every president before me has done the exact same thing. Then after President Trump was charged with mishandling classified documents, which, of course, was by nature a much, much bigger thing, he said this:

(BEGIN VIDEO CLIP)

TRUMP: They did the Presidential Records Act. I have the right to take stuff. I have the right to look at stuff.

(END VIDEO CLIP)

BURNETT: And, Evan, obviously, there's so many huge differences in these cases. All right? And yet, you are going to have a narrative from some -- Trump is charged and Biden wasn't okay. There we are. We know that. That's the country we live in right now.

Can we just be clear what the differences are between the two cases?

PEREZ: Well, you can also, you know, we can certainly direct people to this report by Robert Hur -- again, as somebody who was appointed by Donald Trump during his administration to be a U.S. attorney in his report, he also lays out the big differences between this investigation. Joe Biden invited the FBI to come and do searches. He turned over information -- turned over the classified documents as soon as they were uncovered, call the FBI and had them come over and retrieve it.

You know, in addition to that cooperation which stands in contrast to Donald Trump, who not only refused to comply with a subpoena for the return of those documents from his home in Mar-a-L, but also allegedly told people to lie and try to move documents. So the FBI couldn't find them.

So, huge, huge distinction that Robert Hur himself points out in this report, Erin.

BURNETT: All right. Thank you so much, Evan.

John Avlon is with me. Basil Smikle and Scott Jennings are back as well.

So, John, I just ant to put aside the memory question in a moment. It is an important one. It's important to try to understand, but you heard Evan lay out why Biden is laying charges, why Robert Hur reach that conclusion and laid it out. How different the situations are between Biden and Trump, which I mean -- my gosh, it's like your eyes glazed over, because we just say this so many times, but its important.

[19:20:02]

JOHN AVLON, CNN SENIOR POLITICAL ANALYST: Really important.

BURNETT: Trump and his allies, of course, are going to say this is a double-standard. They're already saying that. One charge, one not.

Here's the question: is this an issue politically for Biden?

AVLON: That specific thing, I don't think should be an issue because saying it's a double standard doesn't fit the facts of these two cases, and really fundamental ways. Yes, he willfully held onto the information and he says, I'll hold onto my notes for books and people like President Reagan did that in the past.

But the fundamental difference is, is that he cooperated fully. His administration hired, you know, got a special prosecutor to investigate the president, a Republican, and that he handed over all the documents. And that is a world of difference than hoarding documents, refusing to cooperate, pushing back on investigations, necessitating a raid, and then trying to get people allegedly to obstruct justice on your behalf.

It's totally different moral universe and to blur the two, or to do sort of apples, to put them side-by-side, I think that -- that's a moral relativism that doesn't help clarify the stakes.

BURNETT: And obviously, we haven't, you know, seen all this going to travel. What we've seen in the case in Mar-a-Lago, right, is, you know, there's tapes of move the stuff after they were coming to get it and move it. And I mean, look, the cases are very different, Scott, but nonetheless, that would require an attention to detail by millions and millions of people who have other things going on in their lives.

JENNINGS: It would've been better off for Joe Biden to have been indicted today than what this report turned out. The way --

BURNETT: You say politically?

JENNINGS: Yes. The number one thing, the number one anvil on the head of this campaign is the American people do not believe he has the mental acuity to serve as president today or for four more years? An independent third party comes along and says, he can't remember when he was vice president. He can't remember when his own son passed away, and I can't take this man in front of a jury because he'd be too sympathetic because he's too old and forgetful and the jury would find that to be sympathetic.

This was politically devastating and indictment would have been far better.

BURNETT: Wow, which is -- what do you think about that, Basil?

SMIKLE: Indictments can never be better at any --

JENNINGS: Really?

BURNETT: Well, in Trump's case, they are every time he gets one, his polls go up.

AVLON: That's a problem.

SMIKLE: Joe Biden -- Joe Biden is not Donald Trump. And Democrats should never aspire to be that at all, and any circumstances. But I do agree, why in the world would this language needs to be included in this report?

I am glad that the White House responded with alacrity to say thanks for the finding, no thanks for this -- sup -- as they use the word superfluous information about Joe Biden. It is a terrible headline because most people will not pour through these documents. They're going to get the sort of sound bites and that sound bite about his age and his mental stability. Why -- why include that in --

BURNETT: Okay. So, let's say what it was. Okay. So, it does and this report go through the cognitive memory and cognitive ability. So I said this went beyond I don't recall --

AVLON: Yeah.

BURNETT: -- which is a standard response in a deposition.

Biden, according to the report, Biden couldn't remember when he stops serving as vice president the day of their first interview. The next interview, he couldn't remember when he began as VP, also could not remember what his son Beau died. And it continues to say that Biden, quote, I'm sorry, appeared to show, quote, diminished faculties.

Okay. What -- what does that mean? I mean, I'm not asking you thematically.

All right, John.

(CROSSTALK)

BURNETT: This is very significant. You said people aren't going to read this. They're not, but something like, it's the headline.

AVLON: That's the problem with the headlines and the narratives driving the conversation. Look, obviously, I mean, you know, the polls show people are concerned about Biden's age. That is a biologic fact that only moves in one direction.

BURNETT: Yep, that said, I do think this election will be about things broader than given the two choices. I think there'll be saying about broader than one person or one personality. I think its going to be about policies and a party. It's almost going to be a parliamentary style election.

And I think there are questions about why -- why this level of detail, some of the spin on the ball was put in here.

But I just also say about Basil's point about the competing narratives here. You know, in this bizarro world we're in, people -- we're talking all the time about how Donald Trumps getting stronger from his indictments.

Well, I don't want us to fall to the trap of saying Biden is going to be weaker because of his exoneration.

BURNETT: Right, just because one or two does meant the reverse. I understand the point.

(CROSSTALK)

JENNINGS: He was not charged, but how can you read this, and it says he willfully retained it? The pictures of the boxes in the garage are no different in the pictures of the boxes in a backroom in Mar-a-Lago.

BURNETT: Willfully retained to write your autobiography versus willfully retaining for I don't know what purposes but telling people to move after you have a subpoena --

(CROSSTALK)

SMIKLE: Well, that's the thing, and unfortunately, if you actually read the notes of the document, it says that there are act -- there are simple explanations that he's given that they can actually believe and sign onto. Unfortunately, it's buried in the document.

BURNETT: Why Basil is a comment about diminished faculties in here?

SMIKLE: I have no idea why -- why the need to put that in there, unless, you know, somebody's, you know, foot was on a gas or finger on the scale, whatever -- I'm mixing metaphors, but you understand my point.

[19:25:09]

That I have no idea why you would want to put that in the document, but --

JENNINGS: It's a warning.

SMIKLE: It's not --

(CROSSTALK)

SMIKLE: Why put a warning in here?

BURNETT: The Republicans are going to seize on it, but it is -- I mean, does it strike you as odd? I mean, it kind of seems beyond the scope of the conversation which is whether he willfully --

JENNINGS: Look, I don't know if it's odd because the White House pushback was were, you know, the day he did his interview, it was the day after the Israel-Hamas War started. So, you're telling me that the president's mental faculties are mostly diminished when he's dealing with a crisis? This is vital -- this is vital information.

(CROSSTALK)

BURNETT: They're saying he hadn't slept, I understand but they --

JENNINGS: This is vital information.

BURNETT: Yep.

All right. So I have to say something done. Now, I don't know that this is going to be the last time that we're together in this capacity, certainly not us.

But, you know, there's a big thing. You're moving on.

AVLON: Yeah.

BURNETT: You're moving on to new adventures and I just want to say the very beginning of the show, day one, we were together.

AVLON: Yeah. BURNETT: We were together on day one. So, it's almost 13 years that we've been together in this way, becoming personal, personal friends, and professional, such admiration for you, every step of the way, no matter what story happens, I mean, something happens and you go, John, and there he was. And there you are.

But meantime, during all of this, he's written book after book after book.

AVLON: Look at that.

BURNETT: Oh, we looked better than ever. Can you take off the double screen, guys?

(LAUGHTER)

BURNETT: Anyway, I just want to say I wish you the best, because I know you just want to grow and fly and, you know, we all -- I know that --

AVLON: Thank you. I love you. I loved the whole team. I have greatest respect and appreciation for CNN and you just got to keep growing and there's some great adventures ahead.

BURNETT: Yes, you do. And I will say, you know, sorry and goodbye for this specific forum.

AVLON: Just for now.

BURNETT: Not for this forum.

AVLON: That's right.

BURNETT: All right. We love you, John.

AVLON: Thank you.

BURNETT: And next, our breaking news continues. I'm going to talk to the former Trump White House attorney Ty Cobb. His bold prediction from the beginning of the Colorado case, and how the justices would rule. Does he stand by it?

Plus, a dramatic overhaul. Ukraine's Zelenskyy naming a new replacement. His top commander is out and replaced, a major shakeup that could alter the course of Ukraine's war with Russia.

(COMMERCIAL BREAK)

BURNETT: All right. We have breaking news.

We have learned that President Biden is going to give a statement at 07:45 Eastern. So, he's going to be coming -- speaking to the camera. We understand thus far that he is going to be giving a statement.

We don't know exactly what it's about. Obviously, it could be about what we heard today from the special counsel. Kevin Liptak is at the White House right now.

Kevin, what do you know this could be about? What should we expect here?

KEVIN LIPTAK, CNN SENIOR WHITE HOUSE REPORTER: Yeah, these remarks added very last-minute to the president's schedule 7:45 from the diplomatic reception room. And certainly, it comes after this report from the special counsel Robert Hur, which declined to bring charges against the president, but certainly raised a lot of questions about the president memory depicting a president who has forgetful in that interview with Robert Hur.

Now, President Biden, earlier this week, did say here at the White House that he would be taking questions from reporters today on Thursday. Obviously, it is now quite late in the day, the president coming out to the diplomatic reception room. It's not entirely clear if he will be taking our questions when he shows up there in front of reporters.

But certainly he will have a lot to talk about. And I have to say, we did hear him speak a little bit earlier about this report when he was at a retreat of House Democrats in northern Virginia. The president really taking time to make sure that people heard there were part declined to bring charges and also making the point that he sat for that interview with Robert Hur in the days immediately following the October 7th terror attacks in Israel, making the point that he thought it was important to sit down, be fully transparent with the special counsel, but also trying to emphasize that he was also dealing with this international crisis at the same time.

And so I think what you'll hear from President Biden in a few moments, if this is the topic that he is coming to speak about, is repetition of that, but also perhaps more of a rebuttal of these claims about his memory because that is what you have been hearing from White House officials tonight, fuming really about the depiction, calling it inappropriate, calling it out-of-line. And so, certainly more to hear from the president when he speaks in a few minutes.

BURNETT: Yeah, diminished faculties were the words.

And, Kevin, I know you literally ran to the camera. One follow, though, for you here to understand when you talk about it being in the diplomatic room, the way that we understand. I know. We just don't know. We don't know here right now, but they said this was going to be a statement. But it sounds like from where it is and from what you understand, there will be reporters in the room, so there is the possibility of questions. So it could be maybe more than a statement.

LIPTAK: There will be reporters in the room and I'll tell you, having covered these types of events with President Biden in the past, he often comes in, delivers a few minutes of remarks and then opens the room to some questions. And that is exactly what he did earlier this week when he was talking about that failed border bill, he delivered his remarks, he excruciating Republicans, but then he took some questions from reporters in the room and it was at that event that he promised reporters that he would come back later this week to take their questions.

So certainly this could be a venue for him to do that. The room would be set up for him to do something like that. And so, we will have to see what he ends up deciding to do, but he will have the opportunity and reporters will be there in the room to ask him questions. Whether he answers them or not remains to be seen.

BURNET: All right. Well, Kevin, thank you very much.

So I just want everyone and to understand here, we do expect that the president of the United States will be making a statement at about 11 minutes. This was literally just announced right before Kevin came -- sprinted to that camera.

So this was not expected. It has just been added to the schedule. And the president will be speaking in a room with reporters may be taking questions and it could be we anticipate about the special counsel's decision not to charge him, although saying that he did willfully retained classified documents, and in that report talked about the president's, quote, diminished faculties.

[19:35:13]

So we will see as we await this because of course, were going to be bringing you that info live here OUTFRONT, we also want to focus in on the implications of that ruling, that decision by the special counsel and the decision that is going to be coming from the Supreme Court after today's hearing about whether Trump can remain on the ballot in the state of Colorado. And at the heart of that hearing, Trump's attorney argued that January 6 was a riot and not an insurrection. He said it was a riot, not an insurrection

(BEGIN AUDIO CLIP)

MITCHELL: For an insurrection, there needs to be an organized, concerted effort to overthrow the government of the United States through violence.

And this --

JACKSON: And so, the point is that a chaotic effort to overthrow the government is not an insurrection?

MITCHELL: But we didn't concede that its an effort to overthrow the government either, Justice Jackson, right? None of these criteria were met. This was a riot. It was not an insurrection.

(END AUDIO CLIP)

BURNETT: All right. OUTFRONT now, Ty Cobb, the former Trump White House lawyer.

Now, Ty, riot, an insurrection aside for the moment, you have said from the very beginning that once the Colorado Supreme Court had had ruled, that Trump was going to come off the ballot, that this would go to the Supreme Court, that they would take it up, and that they would rule 9-0 in Trump's favor. That is what you said at the beginning.

Do you -- from what you heard today, and we did hear them all on audio, obviously, do you stand by that?

TY COBB, FORMER TRUMP WHITE HOUSE LAWYER: I do -- I don't -- you know, I can't -- I'm not Nostradamus, on the 9-0, yeah. It might be 8- 1.

BURNETT: Right.

COBB: It's certainly 7-2. Justice Kagan clearly was having none of this today, and I think it's important that there'll be, you know, at least one liberal justice, ideally, three in the column that decides this case because it's important that the country understand this is not a political issue. This is what the law requires.

The -- but I do think that is highly likely that it could be dealt. They will have 7, 8 or 9 votes. And there's -- they will overturn this quickly. I'm not sure they can do it in two weeks as Ryan suggested, but perhaps they can. I'd say -- I'd say, you know, I'd say a month is a good guess, plus or minus a week

BURNETT: All right. So you'd said the justices likely wouldn't focus on whether Trump's an insurrectionist, but they would focus more in on this issue of officer of the United States under Article Three. And obviously you heard Justice Ketanji Brown Jackson question that, right? Obviously, liberal justice appointed by Biden said it was really troubling to her that the president is not listed in Article 3 when many other offices, which are included under that, were enumerated in her words there.

So what did you take away from her saying that? And being so specific -- specific? I'm sorry.

COBB: Well, I think -- you know, people, so the difficulty was construing the constitution is common sense is not necessarily the touchstone. I mean, it really does require specific language and parsing it for legal terms of arts. So for example, an officer the United States now that phrase is used, I think five times in the Constitution, in virtually every instance, its clear that it only refers to appointed officers under Article Two.

When you add in the fact that they took take a as the clause says, officers of the United States who take an oath to support the Constitution, "the support the Constitution" oath is an article to required oath of officers, the United States, subordinate to the president.

So there -- the president takes a different oath, by the way, to preserve, protect, and defend. So there are a lot of legal-isms. They go into this analysis. But I think that -- I think that that I think that issue is one of the potential silver bullets.

The other potential silver bullet that the courts spent a lot of time on today is the issue of the lack of authority of state to act unilaterally in the absence of congressional action and Justice Kavanaugh highlighted one of the seminal cases on this issue.

BURNETT: Yeah.

COBB: In Ray Griffin, otherwise known as the Griffins case, in which chief justice chase writing as a circuit court justice ruled in 1869, a year after statute or I'm sorry, a year after the amendment was passed, that the insurrectionist law could not be enforced unless the judge who was sought to be disqualified, unless Congress had first passed a law.

So I think -- I think that jurisprudence is out there. They could go either route. They may go both routes, which might require competing opinions.

[19:40:02]

I think you'll see some concurrences and perhaps a dissent. And that could slow things down a little bit in terms of the court getting everything out in a timely way.

BURNETT: So, Ty, I want to ask you about -- you know, we are waiting in the next five minutes we believe.

COBB: Sure.

BURNETT: The president of the United States is going to give a statement in the diplomatic room, and obviously, as a former White House attorney, you know what that means. So, there's going to be reporters in the room. There may be questions. We simply don't know, nor do we know what it's about.

Obviously, the context is the special counsel report, the searing report that concluded that president Biden did willfully retain classified documents. But they say because he, Robert Hur, the special counsel, said because he cooperated and in part because of his poor memory and his cooperation with the DOJ, that is why in part, they are not going to bring charges because maybe a jury would conclude it was an innocent mistake.

What's your reaction to reading this and to its specific focus on his memory?

COBB: So, that's -- that's a question that's very personal for me. I served as senior counsel to Judge Adams and the independent counsel investigation of HUD shortly after the Reagan years. And we had to make a decision on to cabinet officers, one of whom we declined on in large part because of health issues. But we didn't tell the world that.

So I think it's a legitimate reason not to prosecute. But I'm not sure I would have put it up in red lights. I think that's -- I think that's awkward. I do also think that Biden's cooperation is clouded a bit by the fact that, you know, it's based on the fact that when documents were found in his office two years ago, people alerted the proper authorities, but, you know, Biden in 2017, 7 years ago, acknowledged to his ghostwriter that he had all these classified documents and actually shared them with them to some degree.

So I think -- I think the cooperation with the special counsel is important. I mean, they didn't throw up any roadblocks. I didn't go to court. It didn't destroy any documents, move any documents, put them in the pool or whatever happens in Mar-a-Lago, but it's -- it's not quite as clean as it might've been.

BURNETT: All right. Well, Ty, thank you very much. I appreciate it as always, Ty Cobb.

And let's go back to the White House now, Kevin Liptak.

So, Kevin, what more are you learning? Were obviously just a few minutes away from what we anticipate will be a statement and possibly questions from reporters.

LIPTAK: Right. And reporters are now getting ready to head over into the diplomatic reception room here at the White House where we will hear from President Biden. Again, they added these remarks very late in the day, just about 15 minutes ago, they said the president would be speaking at 07:45, and this will be an opportunity for him to speak more about that special counsel report, which of course declined to bring charges his against him, but still had all of these damning details that the White House is rebutting about the presidents memory and about his mental faculties.

And we did hear from the president earlier today speaking about this report, making clear that he sat down with this special counsel voluntarily, that he did it in the days surrounding the October 7, terror attacks in Israel. But what he didn't mention in those remarks earlier were these questions about his memory that were raised in that report? So this could potentially be an opportunity for him to speak more directly to those concerns because of course, they only reinforce some of the concerns that so many voters do have about his potential central second term.

And so this will be an important moment for him, but I should say the White House has not explicitly said that that is what he's doing in the diplomatic reception room. They don't say in the schedule guidance exactly what he will be talking about. But certainly this is the backdrop against which he will be appearing in a couple of minutes from now, Erin.

BURNETT: All right. Kevin, thank you. So as Kevin finds out more, we'll go to him. And, of course, we do anticipate this will begin in just a few moments. You are looking right now at the diplomatic room, that's the podium where the president will be speaking in -- well, it could be two or three minutes, so well see exactly when he starts and how long he goes, how this, how this plays out.

John Avlon, it is significant that he chose is -- significant that you are back and I just said goodbye, and I said it would be soon.

AVLON: Sooner than we thought

BURNETT: But here we are and 15 minutes warning. Obviously, this decision, you did not come out 15 minutes ago from -- they had much of the day to decide this. So what do you read into this?

AVLON: I think the White House and the president realized that they needed to get out in front of this.

[19:45:03]

They need to show the president in commanding tone, speaking crisply, taking questions and engaging in kind of radical transparency that can nip this story and the innuendo in the report, the direct sort of, I think Ty Cobb said, just spit on the ball in questions about his memory, to address those directly in a way that people can see and not simply through press releases. I think its a smart move, best defense and is a good offense.

BURNETT: It is amazing that, Basil, as we talk about this though, I mean, they did talk about diminished faculties, but the logic from the special counsel and Ty was laying this out because he'd been in a situation where he said he had declined along with a special counsel to press charges because of health issues, that Robert Hur is including this because he says that in front of a jury -- it could make it more difficult to get at a conviction beyond a reasonable doubt, specifically saying because of Biden's memory and mental faculties.

So that's the context on this.

SMIKLE: That's the context, right. But, you know, to John's point, all we're talking about is that statement, is about -- is about Joe Biden and his mental abilities. And it is good for the president to go out there, and if he's indeed going to talk about this, to handle it straight on, but I would also find a way to just pivot away from it very quickly. You don't have to -- don't extend the conversation about this.

And that's one thing that I am concerned about tonight because is he going to give us more that were going to be talking about for the next few days, instead of going out, maybe doing an event in Michigan or somewhere, what a novel idea, do a message events somewhere in the country where you can actually show voters that, hey, I'm on -- not only on my in fighting trim as they say, but being able to talk about your issues.

BURNETT: Yes. So John King is joining the conversation now.

John, what do you make with all your decades of experience and watching this in the president of the United States coming out with a 15-minute warning that he's going to be giving a statement, did something so sudden?

JOHN KING, CNN CHIEF NATIONAL CORRESPONDENT: Well, the president is going to talk here in Washington, which I think as a key point. And he's going to rebut all the criticism that he's heard from Republicans all day, because, Erin, as you've been discussing with your great group there, and as Kevin report off at the White House, this report, the good news for the president is the special counsel said, I'm not going to press any charges here. The bad news for the president is, number one, it does talk about the

age issue. It talks about his memory issues and how terribly was in that interview. And trust me, from my travels in recent months, that is a giant concern of the American people. They didn't need the special counsel's report -- Democrats, Republicans, and independents, not just Republicans asking questions. Is he up to the job?

So, when they said he's going to give a statement in Washington, one of the things we hear on the road is where is he? People want to see about traveling the country more. I take the number out of it, don't make it about his age. Make it about his vitality.

Is he up to the job physically? It's the most demanding job in the world, many believe, and I covered the White House for ten years. It is a demanding job. Is he up to it?

The other thing I would point out is that Joe Biden Biden's calling card when he ran against Donald Trump was I'm an adult, I won't do all these things. I know how it works. I'm the national security expert. I'm the Washington expert. I know the rules.

Well, this report says he blew through a lot of very important rules. So it undermines his sort of his credibility as Donald Trump is chaos on the guy who knows how to do it right. And so, that's part of this as well. He's the incumbent president. He's trying to say, don't bring Donald Trump back, don't bring all that chaos back. So, both on the facts of the report and the judgment about his abilities, it's damning, damning.

And so, the president's going to start this conversation in Washington tonight, deliver that statement. I would make the case that if he really wants to bend the arc, especially on the is he up to the job question, which is a real and big one out in the country. He's not going to answer that in Washington. He's only going to answer that if people see him consistently out on the road.

BURNETT: And that's exactly what you were saying, Basil.

JENNINGS: I think they've scheduled this so hastily because they realized the narrative on this report was getting away from them. He has to now and throughout the entire campaign demonstrate that he has the mental acuity to be president, which people as John said, don't currently believe.

I would say he's probably not happy about this report. He's probably not happy about the news coverage. If we see angry Biden tonight, then this would have been a huge mistake.

I think he needs to go out, acknowledged the report. And I don't know how you pivot out of it tonight, but angry Biden and rampaging this report and this independent counsel, that would be a mistake.

AVLON: Sure

BURNETT: Go ahead. ALVON: But he's not -- you know, look, we don't have a rage tweeting

problem with Joe Biden. I think he needs to come out and show vigor. I think John's point --

BURNETT: That' the word vitality and all you're now we have you learned clarity. He should take questions and then I think really lean in to ultimately his best argument is his record has been effective and consequential president. And the contrast couldn't be clear with Donald Trump.

With this -- this incident as well, this shows sloppiness with classified documents, that's unacceptable. He cooperated in contrast with President Trump, but he didn't sow a malicious disregard for cooperating with law enforcement. And that seems to be a fundamental difference.

BURNETT: Is though, Basil, interesting, I suppose you say this, we were talking about earlier, that he's glad he's not charged, but you don't -- sometimes you say, well, wait a minute, am I really to your point?

JENNINGS: Yeah.

BURNETT: I mean, if the reason -- the reason isn't because one of the main reasons is because you'd look bad on the stand because you don't remember what you did.

[19:50:16]

SMIKLE: Right. Look, if you're Donald Trump, you're going to turn around and look same, I did it, you did it, let's just clear on the table and start from scratch, right? Because you can't -- the finger- pointing is over.

So a lot of what I think we'll see tonight is Joe Biden trying to reset that conversation and to John King's point, you know, if there -- if the voter sees this as some kind of equivalent, then he, Joe Biden's got to find a way, that Democrats have to find a way to make it not so to make Donald Trump's crimes or potential crimes greater than anything that Joe Biden did.

But the problem -- again, the problem is that this language about his abilities is so baked in to Democrats as was said before -- the Democrats and independent, let alone Republicans, that he's got to be able to go out and just talk about other issues that people care about, in places where they where they're responsive.

BURNETT: And, John, having -- you know, you've seen him over many years in many roles, but you haven't walking into a room here right now, at a podium in Washington, right. But he's really addressing the American people. He's using to do it, 7:45 p.m., now it's 7:50. So, any minute here.

They're going to be reporters in the room. So it is going to have a live audience, better for him than being in a room just with a prompt or certainly he does better with people around him. I've seen that doing a town hall with him.

But to make this that quick, are they writing a speech? They're putting in probably, what do you think is actually going on here because they do know and the problem is when everyone's looking at you, to do something specifically wrong, that's sometimes when you make the mistake because you're so focused on not making the mistake, right? Anybody can relate to that.

KING: So it is -- it's a fascinating moment because you're right all about that. And one of the constant push backs you get from team Biden and they have some credibility on this argument, is there you go again, right? Remember he lost the first three contests in 2020, everybody says goodbye. Joe Biden shouldn't have run. This is an embarrassing the way it go out. He's the president of the United States. You're going to hear him in just a couple of minute.

So their team says, Washington always gets it wrong. The part about this that I think it's a little bit different that I believe they're coming to understand is that he's the incumbent president now, so they're trying to make this all about Donald Trump. You can't make it all about Donald Trump when you're the incumbent president.

And so to the point about, I say vitality, not age one of the interesting things when you travel and you try to bring up, say, better economic numbers or inflation is a little bit better. What about the president's leadership on Ukraine. Even if you disagree with sending money to Ukraine, the president United States, has done a remarkable job keeping the international coalition together for two plus years now.

When you bring that up with people, some of them don't even want to entertain the conversation. Even people who maybe voted for Joe Biden, because they don't take us up to the job. So they don't want to talk about his qualifications, so they don't want to talk about his record.

They won't even consider it because essentially he walked into the interview room, they decided was enough for the job, so nothing else matters. I think there's sort of a threshold issue about performance that he must answer, that he must reverse the opinion or at least bend the opinion of a lot of people out there get them to pay attention to the bullet points on his resume. They first have to believe the top line that he believes there.

BURNETT: But, John, I will just follow with you on this is one of the things that seems to be challenging is some of the things that people are now putting on him as age are things that may have been exacerbated by age, but its also how he is, right? He's very open about how he is struggled in life, right, with a stutter. He is someone who often has gone down verbal cul-de-sacs and meandered into another story. That's part of who he is, that's his brand for the past 50 years.

Right now, people see some of those things in a different light. How is he supposed to overcome that when that's actually kind of who he is? KING: I think the reason the way he has overcome it for 40-plus years is let people see it will see a lot of it, see a lot of it. So you realize some of it just is baked in, as you said.

BURNETT: Yeah.

KING: The stutter, God bless him. I mean, the man deserves a lot of credit for fighting through that in a very public way with a camera aimed at him every second of every day, for someone to go through that and put up with it. It takes a lot of courage and he just whether you're Democrat, Republican, independent, you people with hardships have to deal with hardships. He deserves a ton of credit for that.

I first covered Joe Biden in Iowa in 1987. I was out there covering Governor Dukakis and went to other events. He has never been a great communicator, but he is good in small settings and he's a good small talker.

And he puts you at ease if you're in a small group with him, he's never been great off the teleprompter and yes, it's clear that he's lost a couple of steps in that regard as anybody, that all would be. I think it's to be candid about that.

I listened to a conversation with a doctor the other day. It just be candid about it. Right? You know, just -- here's where -- here's where I'm, yeah, this is a little harder, but look at this, look because this look at this. Point out the other things that you're doing.

In this case, the specifics of this report were having this bigger conversation about Joe Biden and the age issue, and is he up to the job in the vitality, on the substance of this? He has to look people in the eye and part of it, to the conversation you're having at the table, part of it is to, like, makes you were wrong.

[19:55:04]

That's a hard thing for a lot of politicians to do. The American people give you a lot of grace if you say, as I always say, all the perfect people out there, raise your hands. Not a lot of hands go up, right?

And so they give you a lot of grace if you actually say, wow, I screwed this up or, wow, I made mistakes. It's hard for many politicians to do that. I'm interested to see if the president does that tonight.

BURNETT: All right. Let's go back to Kevin Liptak, who is at the White House.

And Kevin, they had said 7:45. I mean, he often is running a little bit late, but obviously ten minutes laid off of that right now, what is the latest as you understand it. I know there are people, obviously all the other side of this camera right now looking at that podium -- the reporters in that room.

LIPTAK: Certainly, they will be waiting for the president to walk in there any moment now to deliver his remarks and hopefully take their questions, but I do think it's important and when you talk to White House officials throughout but the course of the day, there is another message that I think that they will be trying to get across in that President Biden is trying to get across, because if you think about it, until 3:00 today when the special counsel report came out, this was essentially a terrible week for Republicans, particularly on Capitol Hill, sort of demonstrating the inability of the House Speaker Mike Johnson to corral that caucus, the collapse of the border bill, the failure to impeach the homeland security secretary.

And I think that if President Biden comes out and says something that is not about the special counsel report, it could be about this attack turn the focus back on Republicans and back on President Trump. And if you think about what his imperative will be in the election over the coming nine months. It is to focus more on Trumps and to remind voters of the chaos that Trump has instilled in the country when he was an office himself and you are starting to see President Biden more and more do that in events at the White House and events, at fundraisers on the campaign trail for a person who is loath to mention Trump's name for the better part of his term so far, he is now naming him almost every day in almost every speech.

And so as the president ways this special counsel report as he speaks against the backdrop of these findings in these quite damning revelations that her says about his memory. I think there is also this desire by the White House by President Biden to turn some of the focus on Republicans.

And as has this national stage, primetime stage this evening, I wouldn't be surprised if he also brings that into the conversation, while he has that moment.

BURNETT: No. Right, and, Kevin, I will say as everyone files into that room, do you have any sense of something like this which was announced so hastily, it looks like the remarks are now being put on the podium, what sort of what went on behind the scenes in these past hours for them to make a decision to do this and to do it with such little warning?

LIPTAK: Yeah. And certainly, I think that there was always today the possibility that President Biden would come out and speak in this sort of format. And we heard him say earlier in the week that he would take questions so this has always been sort of lingering in the ether.

I do think as that special counsel report was being digested, you heard outright anger from President Biden's aides really fuming about some of those revelations that her alleged about his the memory. And I think that all likely coalesced into the event that were seeing now.

I think the message about Republicans as one that they are very eager to get out, and certainly throughout the course of this week, whether it was the failure on Tuesday to pass the bill that had the border money or border changes in addition to the Ukraine money to today when they're all please other developments on the Hill, there was this imperative, I think among President Biden's aides to get him behind a podium and to get him talking about some of these issues that certainly, there is always --

BURNETT: All right. Kevin, I will interrupt you. The president of the United States, Joe Biden, is now speaking.

JOE BIDEN, PRESIDENT OF THE UNITED STATES: -- I take your questions.

As you know, the special counsel released his findings today about they're looking to my handling of classified documents. I was pleased to see he reached a firm conclusion that no charges should be brought against me in this case. This was an exhaustive investigation going back more than 40 years, even in the 1970s when I was still a new United States senator.

The special counsel acknowledged I cooperated completely. I did not throw up any roadblocks. I sought no delays. In fact, I was so determined to give a special counsel what he needed, I went forward with a five-hour in-person, five-hour in-person interview over two days on October the 8th and 9th of last year. Even though Israel had just been attacked by Hamas on the seventh, and I was very occupied, was in the middle of handling and international crisis.

I was especially pleased to see special counsel make clear the stark distinction in difference between this case and Mr. Trump's case.