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Early Start with John Berman and Zoraida Sambolin

Colorado Supreme Court: Trump Ineligible for 2024 Ballot; Israel Proposes New Hostage Deal, Pause in Fighting; Heavy Rain, Wind, Snow Expected Across the West Coast. Aired 5-5:30a ET

Aired December 20, 2023 - 05:00   ET

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

[05:00:40]

JOHN AVLON, CNN ANCHOR: Good day to our viewers in the USA and around the world. I'm John Avlon in for Kasie Hunt. It is Wednesday, December 20th.

It's 5:00 a.m. here in New York, 3:00 a.m. in Denver, where lawyers for Donald Trump have vowed to appeal a Colorado Supreme Court ruling that could keep the former president off the 2024 ballot. You heard that right.

The state justices ruling 4-3 that Trump is ineligible to be president again under the 14th Amendment, because, he engaged in an insurrection on January 6th. The court puts its ruling on hold until January 4th, pending Trump's planned appeal to the U.S. Supreme Court.

An attorney for the plaintiffs seeking to block Trump says he thinks that they have a decent odds of winning there.

(BEGIN VIDEO CLIP)

SEAN GRIMSLEY, ATTORNEY FOR PLAINTIFFS IN COLORADO TRUMP DISQUALIFICATION CASE: First of all, Trump is going to have to convince the Supreme Court to take this case, and I can imagine a world in which the Supreme Court says this is pretty early on in the election cycle. Let's see how this plays out another states first. So, he's first going to have to convince Supreme Court to take it.

And once he convinces the Supreme Court to take it, I do think we have a good shot on the substance.

(END VIDEO CLIP)

AVLON: Now, interestingly, Trump did not mention the ruling at all during a rally last n night in Iowa, although his campaign was fundraising off it within hours.

All right. Let's break it all down with CNN legal analyst and criminal defense attorney Joey Jackson from Suffolk County, New York.

Joey, how are you doing, my friend?

Listen there's so much to unpack here. A lot of legal scholars who have been saying this is incredibly unlikely. There been previous attempts in other states to invoke the 14th Amendment section three.

They've all been dismissed on procedural grounds. Looking at this ruling, why did this go forward and what do you think its chances are in the Supreme Court?

JOEY JACKSON, CNN LEGAL ANALYST: Yes, John, good morning to you. Look, I think it has merit. Why do you have provisions in the Constitution unless you're going to give them actual effect? When you have a provision which notes that there is a disqualification provision if you engage an insurrection, why not apply the provision, right?

The reason that we are here, in the Supreme Court is because the lower court indicated that, hey, you know what Mr. Trump did factually engage in an insurrection. Hearing and everything else was held and the conclusion was drawn. However, that court, the court below said that it did not apply to him. And it did not apply to him, not him Trump, the office of the president because, the specific language in the Constitution does not exist as it relates to the president.

However, John, it talks about federal officeholders et cetera. And this court grappling with that said, hey guess what? Not only do we adopt the conclusion that he engaged in insurrection, however, we also concluded that it applies to the president, and as a result of that, you are disqualified from the primary. Of course, as you know, it's a fourth to three decision.

But I think it certainly has merit. I think it's very well-reasoned, and the reality is it is 4-3. Meeting seven justices, in the way our system works is that the majority rules. The issue now is going to be whether it stands up in the Supreme Court of the United States, where it's most surely going, as you know, is very conservative.

AVLON: It is very conservative. But I will also note that conservative legal scholars have dug into this. I read a 74-page analysis on this by two folks associated with the Federalist Society, who came to the conclusion, without preconceived notions, that the 14th Amendment did fly.

And, you know, I'm a bit of a history nerd, and wrote a book about Lincoln and the Civil War. This is a pro-Civil War provision. But when you read the arguments about its ratification, it clearly is meant to apply forward.

I think the interesting thing is, looking at the dissents and looking at the logic. A lot of folks who said, there's no precedent for this, certainly to apply to a president so we should not do it. Is that kind of an argument about the section of the Constitution should not apply, especially when the language expressively is any office. Does, is this kind of a common constitutional legal argument, that we'll just ignore the section of the Constitution?

JACKSON: So, what I've learned, John, very clearly, in my practice of law and even in studying the practice of law is the courts get to the conclusions they want to get to, as long as they have language to rely on to get there. What do I mean? [05:05:01]

I mean that just because, back to your point about, you know, you have conservative scholars who look at evaluate this, you can rely upon any language you want if it is in keeping with your point of view, and in keeping with what you can legally justify.

So, I'll say two things about that. The first thing is, is that just because the Supreme Court's conservative, 6-3, right, majority does not mean because of that that on political grounds, because they are politically backed conservatively, that they will disregard constitutional issues, and otherwise just rule for Trump because he has appointed three of them. So I hasten to add that.

Having said, that there is a school of thought which would suggest that they wanted to protect him, they have every bit of measure within the language of the Constitution to do it. That leads to the other issue with which is, if things are not specifically provided for within the Constitution, and it doesn't specifically mention the president, you might ask if going back to Scalia, right, you're a big history buff, Scalia being a strict contructionist, Scalia was a justice that said if it ain't fair, it doesn't say it.

And so why doesn't it say? So, I think that's an argument that has merit, I think in terms of, when I say that argument meaning, why didn't say the president, it says federal officeholders.

AVLON: Oh.

JACKSON: But I think at the end of the day, this Colorado decision says any federal office. Guess what a president? It's a federal office.

AVLON: Counselor, that's right, it says any office. It says any office.

And I want to play you though, just because I think it's important. We live in times where people assume that the partisanship means that the fix is in. People abrogate their constitutional duty. I don't think that's the intention of most -- you know, certainly judges, or justices, or legal scholars.

I want to play you sound from the respected conservative jurist Michael Luttig who is been a Trump critic in the wake of the insurrection attempt surrounding January 6th, but is solid legal scholarship from a legal perspective. Take a listen.

(BEGIN VIDEO CLIP)

J. MICHAEL LUTTIG, FORMER JUDGE, U.S. COURT OF APPEALS FOR FOURTH CIRCUIT: Their opinion is unassailable. Under the objective law of the federal Constitution in Section Three of the 14th Amendment, the Supreme Court of the United States ought to affirm this decision today.

(END VIDEO CLIP)

AVLON: What do you make of that?

JACKSON: So, you know, I do think it's a very well-reasoned decision. To say it's unassailable though, you know, maybe a step too far. And as much as every legal opinion I have learned is assailable on some grounds, right? You could find something to poke a hole in.

And so, it depends really upon how justices ultimately went against their approaches. If you want to protect Trump, and you want to allow him to run, you have wiggle room within the context of the Constitution to argue that. Harkening back to the issue of it doesn't say the president. If you want to apply legal principles, and apply them practically, and soundly, and legally justly, you say, two at the point that we were talking about before that clip, John, which is any office. Isn't the president any office?

So I think that it really is a position that has merit. The critical issue for me is how this is going to play throughout the country. As we know that there are legal challenges aplenty out there. Will this reasoning be adopted?

And if it is, and it's supported, and the Supreme Court weighs in and they rule that this decision should stand in Colorado -- boy, Houston we have a problem.

AVLON: Houston, we have a problem. Are you working under the assumption that the Supreme Court effectively has to take this case?

JACKSON: I really do think so. The reason and basis for the Supreme Court is that they have to give some uniformity to these 50 states. As you and I both know, there is a little bit of discord as it relates to how a different 50 states evaluate different issues.

And if you want uniformity you want direction. And if something of this magnitude a presidential election, yes, the Supreme Court decides what they take, we all get that. But I think this is a case they'd take, and this is a case that will have major implications.

And last thing, John, and somewhat unrelated, it's so interesting to me how the courts now are really involving themselves in -- you know, not that they haven't been, just tremendous magnitude in the decisions that they've made, but if you look at the immunity issue, whether he has immunity from federal prosecution, Supreme Court issued that is largely going to impact the presidential election.

You look at this issue about whether he's qualified to be on the ballot, going to affect the election.

So the Supreme Court, this is the reason we have these courts, and this is the reason elections matter to the extent that he appointed and packed that court, that can come in to help in. Moving forward, we'll see what they decide.

AVLON: We'll see. I think the question is, should it. Equal justice under law applies, and accountability should apply even if you have been a president. The Constitution certainly should apply.

But we will see, stay tuned. This is serious stuff, with the weight of history behind it.

[05:10:01]

Joey Jackson, thank you very much, my friend. Be well. Thanks for getting up with us.

JACKSON: Thank you, John.

AVLON: All right, still ahead Israel drawing up a new deal in exchange for more hostages held by Hamas.

Plus, more victims and associates of the notorious sex offender and pedophile Jeffrey Epstein, their names are about to be made public.

(COMMERCIAL BREAK)

AVLON: CNN has learned that Israeli officials are proposing a one week pause in fighting in Gaza, in exchange for the release of 40 more hostages held by Hamas.

CNN's Clare Sebastian joins us from London with more.

Clare, Hamas has said that no hostages will be released until there is a cease-fire. So, what can you tell us about this potential new deal being proposed?

CLARE SEBASTIAN, CNN CORRESPONDENT: Yeah, John, I think the sense is the talks are ramping up, that there are a lot of options on the table at the moment.

[05:15:06]

This report on that deal potentially involving 40 hostages came via several Israeli sources speaking to "Axios" this morning. We are hearing from an Israeli official who says they are actually not close to a deal. They are not near a final deal.

He said, the part of that is because of the demands Hamas is making. He says that they want, and I quote, more heavy duty prisoners than before. You remember in that first hostage deal, it involved essentially trading Israeli hostages for Palestinian prisoners in Israeli jails. But they were women, and teenagers almost exclusively. So this perhaps sets up the sense that Hamas is demanding men, and people who committed more serious crime. So that's one thing.

The Israeli position according to this official at this, point is that they want not 40, but old hostages released as part of a deal. So, that is sort of the contours of where we. Are they are willing, said this official, to look at a temporary cease-fire lasting 1 to 2 weeks.

As for the Hamas position, well, Hamas put out a station over the weekend saying as you said, they would not be willing to release any hostages until there is a cease-fire. But, look, the head of the political bureau of Hamas, Ismail Haniyeh, is, according to Hamas in Egypt today, we don't know if they're discussing the hostage talk, but Egypt was critical in that first, round in that first deal. So it looks like at least they're willing to engage.

AVLON: That's maybe a sign of progress. We'll see, still some doubt there.

I want to ask you another question. Last night, Israel released a video of the interrogation of the director of the Kamal Adwan Hospital in Gaza. He says Hamas political leadership used the hospital, thinking that they would not be targeted there. And that he, the hospital director, was a member of Hamas's military wing. Now, an important caveat, we don't know if he was speaking freely.

But, what's the significance of these admissions?

SEBASTIAN: Really significant because obviously Israel, there has been a lot of fighting around these hospitals, they have been accused widely of being in breach of international humanitarian law in the bombardment of hospitals. And they have said all along that they don't target hospitals. They target Hamas strongholds.

Now, if it is true that Hamas was using this hospital, for military purposes, then the hospital loses its protected status under international humanitarian law. And, certainly, if the director of the hospital was telling the truth, and was not under duress when saying those things, then that would certainly lead to that conclusion.

But, of course, we have seen Israel at pains to try to prove this, bringing journalists in, showing them tunnels at Al-Shifa Hospital, showing the weapons found another hospitals. This is again part of that campaign, and a significant part.

This as Shin Bet, the intelligence agency, also releasing this video, perhaps also, John, a way of trying to rehabilitate the quality of its intelligence which has taken a bit of a reputational hit throughout this.

AVLON: Clare Sebastian, thank you very much.

Still ahead, a woman in Ohio who had a miscarriage has now been charged with a crime. What happens when post-Roe laws play out nationwide?

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[05:22:43]

AVLON: We've got your quick hits across America now.

And Ohio woman who suffered a miscarriage in her bathroom is now being charged with abuse of a corpse over how she handled the remains. If indicted, and found guilty she faces up to a one year in prison.

A judge is ordered the names of over 150 of Jeffrey Epstein's alleged victims and associates to be made public. It's one result of a lawsuit against Epstein's former girlfriend Ghislaine Maxwell.

The Senate confirming the last 11 remaining top military nominees. The GOP Senator Tommy Tuberville releasing his hold on the second group of nominees after delaying hundreds of confirmations for months.

And now on to weather. We've got heavy rain and snow expected in the higher elevations across the West Coast, while river flooding in colder temperatures continue in the Northeast after that storm this weekend.

Here to break it all down of course, meteorologist extraordinaire Derek Van Dam.

Derek, how you're doing?

DEREK VAN DAM, AMS CERTIFIED METEOROLOGIST: Great.

John, you know, I get excited about this stuff, so let me just draw you in because this is an impressive satellite loop. It almost looks like, to me, a big bowling ball ready to ball or strike into the West Coast of the U.S. That's our next weather maker.

And it's really interesting to note is we kind of break this down, it's just circling around itself. And, you know, what's different than previous storms that have impacted the West Coast so far this year, it doesn't really have that moisture tap from the tropics. So we are not going to get a particularly wet system out of this.

But, the way that it is going to impact southern California, the way the topography is laid out, that is going to be an interesting route for in terms of precipitation totals for this particular area. We do anticipate this to bring significant rain to the mountains just north of Los Angeles. So, mudslides, landslides, they are definitely a possibility, rockslides and some of those localized burn scar areas over the past couple of years.

Look at the moisture in and around Los Angeles today. We have a slight risk of flash flooding in and around L.A. to the West, that's where we have the worst impact.

[05:25:00]

But as we head into Thursday, that's where we expand that moderate risk. That's a level three out of four from the Weather Prediction Center, including L.A. So, roughly 10 million Americans impacted by this. Floodwaters lasting right through the rest of the workweek and into the holiday weekend.

Now, we mentioned some snow, but it really will only impact the highest of elevations across central California. So, not a major concern for major population density. So, there is the flood threat out West.

Let's travel towards the East Coast. That's where things are going to clear out nicely. We're still watching and monitoring the river gauges, especially across New England as they have reached their crest in some locations -- John.

AVLON: It's never boring to talk weather around the holidays, especially with you.

VAN DAM: Good story.

AVLON: Thank you, Derek. Be well.

VAN DAM: All right. Take care.

AVLON: Take care.

All right. Just ahead, a stunning decision in Colorado. What that could mean for Donald Trump on the state ballot.

And President Biden's age, it seems to be everywhere in this election. What his aides are telling him. We have reporting, that's next.

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