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Early Start with John Berman and Zoraida Sambolin

Today: Trump Attends Hearing On Presidential Immunity Claim; White House To Review Austin's Hospitalization, No Plans To Fire Him; Michigan Wins College Football Championship. Aired 5:30-6a ET

Aired January 09, 2024 - 05:30   ET



OMAR JIMENEZ, CNN ANCHOR: -- Haley's surge of 12 points, which came as DeSantis dropped four points, now at five percent.

Meanwhile, former President Trump will appear in federal court today where his lawyers will argue that Trump has presidential immunity from criminal prosecution in the federal election subversion case. His argument already rejected by a lower court but it hinges on the defense that his actions constitute official acts he took while in office.

Trump articulating this in a video posted to social media last night.


DONALD TRUMP, (R) PRESIDENTIAL CANDIDATE: Of course, I was entitled as President of the United States and commander in chief to immunity. I'm entitled to immunity. I wasn't campaigning. I was looking for voter fraud -- something that I have to do. Under my mandate, I have to look for voter fraud.


JIMENEZ: Special counsel Jack Smith is warning, however, that Trump's sweeping assertion, quote, "...threatens to license presidents to commit crimes to remain in office."

Last month, the Supreme Court declined Smith's request to fast-track the case, but the three-judge appeals panel in D.C. today could set the stage for further appeals that could still eventually make their way to the justices.

So, let's bring in CNN legal analyst and criminal defense attorney Joey Jackson. Good to see you, Joey, Thanks for being up with us.

So, for starters, what arguments do you expect to hear today from both the Trump team and Jack Smith?

JOEY JACKSON, CNN LEGAL ANALYST, CRIMINAL DEFENSE ATTORNEY (via Webex by Cisco): Yeah, Omar, good morning to you.

So I think it will be an uphill battle, for sure, for Trump, but I think the arguments will be as follows. You heard some of them there -- first, starting with President Trump. As the President of the United States, I not only have the right but I have the absolute obligation with respect to looking at the election, determining whether there was any fraud, and taking specific steps in order to prevent that. That is my solemn duty as president.

Furthermore, I'm protected by the First Amendment with respect to what I have to say and what I have to do. And by the way, I was impeached and that should serve as a basis for holding me accountable; not the criminal courts.

On the flip side of that, Omar, you're going to hear Jack Smith's people say sir, you were acting as a failed candidate. And with respect to you acting as a failed candidate, that deserves no presidential protection whatsoever.

Furthermore, in terms of the Senate and their acquittal of you and your conviction, that does not stop the judicial or criminal process. That begins it. You have no right after you're out of office to be indicted or otherwise prosecuted, and that's what we're doing.

Furthermore, as it relates to the First Amendment, you have no freedom of First Amendment when you're talking about inciting riots or anything else. And so, sir, to the extent that you're engaged in criminal activities or other activities using speech, that's not protected at all. And as a result of that you deserve and should be prosecuted. You are not above the law.

Those will be the arguments that are laid out, Omar.

JIMENEZ: Yeah. And look, part of the context around all of this, too, is Trump is also running for president again. And yet, he's got a full calendar of legal proceedings, some of which he's not required to attend, like this one. He's not required to attend these oral arguments. He's appearing voluntarily. That said, we're just six days away from the Iowa caucuses.

So, I mean, obviously, things that play out in court can matter in the outside world as far as perception goes, but why does he show up today?

JACKSON: Yeah. I think it's important even from a -- first, from a political perspective, right? And then the optical perspective of even though he's in court, right -- on the steps of the courthouse -- there will be every camera imaginable, Omar, so he can wax poetic there talking about the fact that we just saw in the clip to begin the segment. I'm president and I had to do this.

As to why he shows up it's a lot like why he showed up in New York multiple times relating to his business activities. This is huge to the extent that a court may consider immunity and that he would not be prosecuted. That would take this case -- the federal election subversion case before Judge Chutkan in D.C. that was supposed to start in March -- it will not -- off the table. I think it will additionally take the Georgia case, supposedly starting in August, off the table as well. So to the extent that the implications are so severe -- I mean, he's

got to be there. He doesn't have to be there but certainly, it's in interest.

And then, of course, he knows that the world is watching and, by the way, it's a great platform to speak to his followers.

JIMENEZ: Yeah. And look, there's a -- there's a spectacle aspect of this but there are also, as you touched on, some very interesting and potentially, some significant legal developments that we could see here.

Specifically, I want to follow about -- follow up about two elements of Trump's defense. One is the role of impeachment in his argument that they've put forward so far, and the other is the question of jurisdiction.

How -- do you see those factors playing into this? And how might we see those factors play into today's arguments?


JACKSON: Yeah. You know, Omar, I think on the issue of impeachment -- again, it's a hard argument to make. There's guidance from the Justice Department Office of Legal Counsel, as it relates to impeachment, saying that -- and this is from 1973 -- that you know what? You can be impeached. You can also be prosecuted. It doesn't end as it relates to that. And so, I think that that's going to be -- it's an important argument but I think it's a failed argument.

As far as any jurisdictional points -- look, the bottom line is that the Justice Department has a duty and a responsibility to prosecute crimes. Innocent until proven guilty, no question about it.

But the reality is that should you have an opportunity to prove a former president guilty or should they have this absolute immunity -- you know what? Nothing to see here. I was the president. I was acting in my presidential capacity. You can't touch me. I think that that's a broad, sweeping argument.

And final point, Omar, very quickly, and that is that look, I know it's 6-3 conservative justices versus liberal on the Supreme Court. I think that this has implications for decades in terms of their decision. Not at the Supreme Court yet. It's going there. You and I both know that. And so, I think justices in looking at it.

And this particular decision, just by the way, in D.C. -- it's -- three people are hearing the case and two of them are Democratic. But ultimately, when it gets to the Supreme Court -- is my point -- is because it has so much implications I just would not say oh, it's just going to be viewed on political lines -- no way. This has got to be done by the law, by the book -- and so I believe it will be.

JIMENEZ: Yeah. Another small decision, potentially, for the Supreme Court.

Joey Jackson, thank you so much.

We're also following growing backlash over Defense Sec. Lloyd Austin's sudden hospitalization on New Year's Day. The problem is President Biden and others didn't know until days later that Austin was even in the hospital. The White House says the president has no plans to fire Austin but there will be a review of the process and procedure.

CNN's Alex Marquardt has more.


ALEX MARQUARDT, CNN CHIEF NATIONAL SECURITY CORRESPONDENT (voice- over): It has been a week since the country's most senior defense official has been in the hospital. For much of that time, very few people -- even his boss, the president -- were aware.

The Pentagon now says that Secretary of Defense Lloyd Austin was rushed to Walter Reed Hospital last Monday, on New Year's Day, due to severe pain after elective surgery right before Christmas. The Pentagon revealed that even for the initial procedure in December, Austin and his team didn't tell the White House or Austin's deputy.

Now, shock and anger from both parties are now spreading across Washington for Austin's failure to reveal, for days, to people who should have been told that he was still in the hospital.

REP. ABIGAIL SPANBERGER (D-VA): I do hope that every person in the cabinet recognizes that this was not an appropriate step. Not an appropriate way to handle what was his hospitalization.

MARQUARDT (voice-over): "That is unacceptable," said Roger Wicker, the top Republican on the Senate Armed Services Committee. "We are learning more every hour about the Defense Department's shocking defiance of the law."

Also in the dark were the most senior members of the Biden administration.

ANTONY BLINKEN, U.S. SECRETARY OF STATE: I wasn't aware of his medical issue.

MARQUARDT (voice-over): Biden says he still has complete confidence in Austin and isn't asking him to resign. But the White House said today that the way Austin notified them needs to be reviewed.

JOHN KIRBY, NATIONAL SECURITY COUNCIL COORDINATOR: I think there's an expectation that when a cabinet official becomes hospitalized, that will be notified up the chain of command. There is that expectation.

MARQUARDT (voice-over): Austin's initial surgery was on December 22. He went home the next day. Then he was rushed to the ICU by ambulance on January 1.

His deputy, Kathleen Hicks, was only told the next day that she would have to assume some responsibilities but not why. It wasn't until Thursday, January 4, that Hicks; Jake Sullivan, the National Security adviser; and ultimately, Biden were told where Austin actually was. The next day, on the fifth, the Pentagon told congressional leaders and put out a public statement.

Then finally, on Saturday, five days after being admitted, Sec. Austin said in a statement, quote, "I recognize I could have done a better job ensuring the public was appropriately informed. I commit to doing better."

While Austin was in the hospital, Hicks was on vacation in Puerto Rico where she periodically assumed Austin's duties. This, during a very busy week that saw Israel carry out a strike against a Hamas leader in Beirut, the U.S. bombed a militia commander in Baghdad, and U.S. forces continue to actively face attacks by Iranian-backed groups, including the Houthis in Yemen.

MARK ESPER, FORMER DEFENSE SECRETARY: I think that was a really tricky situation where you want to be able, as the president, to pick up the phone and say hey, what's going on? What do we need to do? What's the next course of action, other options, et cetera?

MARQUARDT (voice-over): People who know Austin say he kept things quiet because of how private he is.

BRIG. GEN. MARK KIMMITT (RET.), FORMER ASSISTANT SECRETARY OF STATE FOR POLITICAL-MILITARY AFFAIRS: Lloyd Austin is an intensely private person. He doesn't go out in front of the cameras. He doesn't go out of his way to be known or to be seen. He likes to take a lower profile.

MARQUARDT (on camera): The Pentagon said in a statement on Monday evening that Austin is no longer in the ICU but he remains at Walter Reed Hospital and from there, he is monitoring the Defense Department's operations around the world.


The State Department said that Austin is in good condition but experiencing discomfort.

A spokesman did not explain why, even when Austin went into the hospital for the first time for surgery last month, President Biden and others weren't told. The Pentagon spokesman, Gen. Pat Ryder, told reporters we know we can do better and we will do better.

In the meantime, at least for now, the White House is praising Austin's general leadership, saying he took ownership for all of this, which the White House says President Biden respects.

Alex Marquardt, CNN, Washington.


JIMENEZ: Now, the Pentagon has now answered why Austin was in the hospital in the first place. But officials say there has been no indication that Austin's hospitalization put national security at risk or hindered operations overseas. Nonetheless, very serious. So let's bring in Shawn Turner, former director of communication for the U.S. National Intelligence. Great to see you.

So I just want to start off with what is the normal protocol for the White House to be informed of a senior administration official's absence. And where do you suspect communication might have broken down here in Austin's case?

SHAWN TURNER, FORMER DIRECTOR OF COMMUNICATION FOR U.S. NATIONAL INTELLIGENCE (via Webex by Cisco): Yeah, good morning, Omar, and thanks for having me.

You know, the normal protocol here is something that's very different from what I think Sec. Austin said. You know, Sec. Austin has said that he believes that he could have done a better job informing the public. But, you know, Omar, I really don't think that's the issue here.

The protocol for a cabinet official -- one of the most important cabinet officials -- is to make sure that not only the people at the Pentagon or at the agency that official is over are aware -- senior -- certainly, senior leadership are aware -- but also to make sure that people at the White House are aware.

Look, Omar, when I was in government I remember days when my boss, the director of national intelligence, would be summoned to the White House. And what you don't want to do and part of the reason this is so problematic is you don't want to be in a -- in a situation where you've got to say to the White House my boss is in the hospital and oh, by the way, I know you didn't know that but that's the case.

So that's part of the reason this is so problematic.

JIMENEZ: And look, there are no shortage of conflicts going on around the world that require his attention, whether it's the conflicts in the Middle East that continue to escalate, Ukraine, obviously monitoring potential escalations in Eastern Asia as well.

So what is the worst-case scenario in a situation like this? Why is this such a big deal?

TURNER: Yeah. The reporting suggests that when the deputy secretary was notified that she would be taking on some of the secretary's responsibilities she was not told why. And as the -- as Alex's piece indicates and you said, there are a lot of things going on around the world that the Secretary of Defense needs to be aware, and he needs to have full knowledge of those situations.

Oftentimes, when the deputy secretary takes on some of those responsibilities there may be aspects of things that the deputy secretary is not aware of. Also, there may be developments where the president and other senior leaders need counsel. They need immediate feedback and recommendations. And so, that's part of the reason this is such a concern.

When we look at what's happening around the world -- around the world, we've got several major conflicts going on. And so, it's extremely important that the White House -- it's extremely important that officials at the Pentagon know who is in charge at what time and have a good sense of who to reach out to when things are not going as we expect them to go.

JIMENEZ: Yeah. And, of course, the notification that came days after it had already happened in the first place.

Shawn Turner, former director of communication --


JIMENEZ: -- for U.S. national intelligence, thanks so much for being with us.

TURNER: Thanks, Omar.

JIMENEZ: Brand new this hour, Nikki Haley is closing in on former President Trump in New Hampshire. The new poll, next.

Plus, the Michigan Wolverines' first football championship since Bill Clinton was in the White House. The Bleacher Report, next.



JIMENEZ: We're back with the CNN poll that was released literally just minutes ago showing Nikki Haley just seven percentage points behind Donald Trump in New Hampshire. That's according to a new CNN- University of New Hampshire poll.

Now, Haley is making a final pitch to Iowa caucusgoers. They -- she addressed voters last night during a Fox News town hall. She came out swinging, rebuking President Biden's speech in her home state of South Carolina yesterday, as well as frontrunner Donald Trump.


NIKKI HALEY, (R) PRESIDENTIAL CANDIDATE: I don't need someone who palled around with segregationists in the '70s and has said racist comments all the way through his career lecturing me or anyone in South Carolina about what it means to have racism, slavery, or anything related to the Civil War.

Look, just because President Trump says something doesn't make it true.


JIMENEZ: Less than a week out to Iowa.

For more on this, let's bring in Catherine Lucey, White House reporter at The Wall Street Journal. Great to see you.

So, Nikki Haley has come under more scrutiny as a surging candidate, including her controversial comments about the origins of the Civil War. Some thought those remarks might hurt her in New Hampshire with Independent and moderate primary voters. But according to our polling, that doesn't really seem to be the case.

Should the Haley campaign be breathing a sigh of relief this morning seeing some of these numbers?

CATHERINE LUCEY, WHITE HOUSE REPORTER, THE WALL STREET JOURNAL (via Webex by Cisco): I don't know if you're at relief yet since no one has actually cast a vote -- yeah.


LUCEY: But certainly -- I mean, this is a big poll for her. This is a huge increase and it really shows that their theory of the case in terms of the voters they're trying to appeal to is working, right? She seems to be gaining -- in this poll, anyway -- among moderates, among Independents in New Hampshire. And that's really a big piece of the coalition she is trying to put together. She's trying to pitch herself as an alternative to Trump who is appealing to some of those voters who are really turned off by him.

JIMENEZ: Yeah. And, as you rightly point out, no one has voted just yet. And that's the poll that many of these candidates have told me -- to my face, in some cases -- that we should be focusing on. Nonetheless -- look, we've got what we've got.


So, also in this polling, 29 percent of New Hampshire primary voters -- they view Ron DeSantis favorably. But what's interesting about that is that it's down from 44 percent of those polled that did the same early last fall.

Does that reality in New Hampshire add more pressure for him to do well in Iowa?

LUCEY: It certainly -- at this point, it feels like Iowa is really make or break for Ron DeSantis. He's really -- he's put so much energy and effort in there. He spent so much time there. They've been really clear they're hoping for a good night there and, I mean, we'll see. Obviously, it's -- maybe we'll see some more Iowa polling in the next couple of days.

But he has really struggled. Haley has really gained on him. He has never been able to get close to Trump. It looks like Trump could have a really substantial win in Iowa. And then, that really raises questions about what is the path forward for DeSantis. How does he continue after that?

JIMENEZ: Yeah. It will be interesting to see at what point candidates like DeSantis, who is a (INAUDIBLE) in Iowa make a decision like that, or even Chris Christie, who has invested a lot in New Hampshire. We will see.

I want -- I want to turn now to President Biden on the Democratic side of things. He was in South Carolina yesterday where he gave a speech at the Mother Emmanuel AME Church. That was where the 2015 racially motivated mass shooting that killed nine people happened.

During the speech he was interrupted by protesters calling for a ceasefire in Gaza. Take a look.


PROTESTER: If you really care about the lives lost here, then you should honor the lives lost and call for a ceasefire in Palestine.

PROTESTERS: Ceasefire, now! Ceasefire, now! Ceasefire, now! Ceasefire, now!

JOE BIDEN, PRESIDENT OF THE UNITED STATES: That's all right. That's all right. That's all right. That's all right.

BIDEN SUPPORTERS: Four more years! Four more years! Four more years!

BIDEN: I understand their passion. And I've been quietly working -- I've been quietly working with the Israeli government to get them to reduce and significantly get out from Gaza.


JIMENEZ: How could protests like these, if they persist, affect his ability to reunite some of his coalition?

LUCEY: Yeah, this is a real reminder of how the president can't escape this issue. We've seen protests -- as you said, we've seen protests like this before and we may see more of this as he starts doing more of these kind of campaign events.

And he's under a lot of pressure. There's real division in the -- in his party about how to handle the situation. But particularly, he has faced a lot of criticism from younger voters, which is an area where he is very weak with. And so, that is a real problem going forward for him. And he hasn't -- we, so far, have not seen the kind of improvements in the Middle East that some of those folks are looking for.

And so, this is going to continue to follow him around as he is working to --


LUCEY: -- try and bring back this coalition that elected him in 2020.


Catherine Lucey, Wall Street Journal, thank you so much.

LUCEY: Thank you.

JIMENEZ: And migrants crossing the southern border aren't solely from Latin America. A CNN investigation of Chinese migrants entering illegally coming up on "CNN THIS MORNING."



JIMENEZ: The Michigan Wolverines are the kings of college football after beating Washington for their first national championship since 1997.

Coy Wire has this morning's Bleacher Report from Houston. Have you slept, man?

COY WIRE, CNN SPORTS ANCHOR: Eighty-two minutes, give or take a few. But I'm ready for you, Omar.

Check it out -- hot off the presses. The front page of The Detroit News up in Michigan -- "Hail, Yes." Wolverines for the win.

Check out your highlights, Omar. Big names in attendance -- Michael Jordan, Derek Jeter, Travis Scott. That's about three billion dollars net worth all in one box.

And Michigan's offensive line -- money -- pummeling Washington. Donovan Edwards running through the Huskies like a bowling ball through a wet paper bag. Ninety-three yards and two huge touchdowns all in the first half. He says he plays for his mom who he lost to cancer when he was young -- 17-10 Michigan at the half.

And in the second, Michigan's number-one-ranked defense falling, intercepting Heisman candidate Michael twice. The first was on the very first play of the half. And then it was Michigan star running back Blake Corum who finished them, rushing for two touchdowns of his own.

Michigan are your College Football Playoff National Champions -- 34-13 is the final.

We caught up with the champs after the game -- listen.


WIRE: What does the win mean to you, J.J.?

J.J. MCCARTHY, MICHIGAN QUARTERBACK: Everything -- everything for our teammates but most importantly, Michigan Nation. It's been too long. We finally brought it back home.

JIM HARBAUGH, MICHIGAN HEAD COACH: A tremendous performance by our team and they took on (INAUDIBLE). And we're the last ones standing. That's a tremendous feeling.

WIRE: National champion. How's that sound?

BLAKE CORUM, MICHIGAN RUNNING BACK: That's something that's going to last me forever. No one can ever take that away from me.


WIRE: Coach Jim Harbaugh -- 38 seasons as an NFL and college player or coach. No championship titles until now, finally winning one as head man at his alma mater. How about them Harbaughs? Listen to this.


HARBAUGH: I can now sit at the big person's table in the family. They won't -- they won't -- they won't keep me over there in the -- on the little table anymore. My dad, Jack Harbaugh, won a national championship and my brother won a Super Bowl. So yeah, it's good to -- it's good to be at the big person table from now on.

JOHN HARBAUGH, BALTIMORE RAVENS HEAD COACH: I couldn't be more proud or excited or happy. And just a great, gritty football team and a very gritty coach.

JACK HARBAUGH, JIM AND JOHN'S FATHER: The best way I can do it is right now, no one has it better than the Harbaughs.



WIRE: All right, let's take you to campus, Omar. Thousands of fans taking to the streets in Ann Arbor, celebrating the natty. Police say there were some couch fires that had to be extinguished, but no major issues, no injuries, and no arrests.

So, Omar, this marks the end of the college football playoff era as we know it. Next season, it's a 12-team playoff for the first time --


WIRE: -- with the title game in your city -- in Atlanta, baby. Look out.

JIMENEZ: I can't wait, baby.

Coy Wire, thank you so much for being with us as always.

And thanks for joining us, everybody. I'm Omar Jimenez. "CNN THIS MORNING" starts right now.