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Appeals Court Panel Hears Arguments On Presidential Immunity; DOJ Lawyer: Presidents Are Not Above The Law; Trump Lawyer: Presidents Can't Be Prosecuted Even For Assassinating Political Rival Unless Impeached & Convicted. Aired 12-12:30p ET

Aired January 09, 2024 - 12:00   ET

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

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MANU RAJU, CNN ANCHOR: Welcome to Inside Politics. I'm Manu Raju in for Dana Bash. Let's get right to our top story. Is Donald Trump immune from prosecution for actions he took in office? That crucial question now in the hands of three judges on the DC Court of Appeals. Trump says he cannot be prosecuted for trying to overturn the election because they were quote, official actions he took while President. Moments ago, we heard from Trump himself.

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DONALD J. TRUMP, 45TH PRESIDENT OF THE UNITED STATES: I think it's very unfair when an opponent, a political opponent is prosecuted by the DOJ, by Biden's DOJ. So they're losing in every poll. They're losing in almost every demographic. Numbers came out today that are really very mind boggling if you happen to be Joe Biden. And I think they feel this is the way they're going to try and win.

(END VIDEO CLIP)

RAJU: That was outside the courtroom. Inside the court with his DC criminal trial looming, Trump's lawyer and the Special Counsel's Office made their cases in the high stakes hearing today.

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D. JOHN SAUER, ATTORNEY FOR FORMER PRESIDENT DONALD TRUMP: If a president has to look over his shoulder or her shoulder every time he or she has to make a - a controversial decision or after I leave office, am I going to jail for this when my political opponents take power? That inevitably dampens the ability of the President.

JAMES PEARCE, ASSISTANT SPECIAL COUNSEL, U.S. DEPARTMENT OF JUSTICE: Never in our nation's history until this case has a president claimed that immunity and criminal prosecution extends beyond his time in office. The President has a unique constitutional role, but he is not above the law.

(END VIDEO CLIP) RAJU: Now a ruling could come quickly and will likely be appealed to

the Supreme Court. CNN's Evan Perez, it's outside the courthouse. Evan, these judges seem very skeptical about Trump's argument.

EVAN PEREZ, CNN SENIOR JUSTICE CORRESPONDENT: That's right Manu. This was a very skeptical audience that certainly the Trump team was facing today. One of the things that really stood out was the - the various hypotheticals that the judge kept trying to pose to Trump's attorneys to John Sauer to try to test his argument, which is that the former president cannot be prosecuted because of the acts that he was accused of doing while in office.

And the crux of that argument turns on this idea that because the former president was impeached by the House and was acquitted by the Senate, that means that there cannot be a prosecution of the former president for those very same actions. Here's Judge Florence Pan sort of tried to stretch out some of the stress test this argument that the former president's legal team is making. Listen.

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JUDGE FLORENCE Y. PAN, TRUMP APPEAL JUDGE: Could a President order a SEAL Team Six to assassinate a political rival? That's an official act in order to SEAL Team Six.

SAUER: He would have to be in what speedily be, you know, impeached and convicted before the criminal prosecution.

PAN: But if you weren't - but if you weren't, there would be no criminal prosecution? No criminal liability for that?

SAUER: Chief Justice's opinion where we're against Madison (ph) and - and our Constitution and the plain language of the impeachment judgment clause, all clearly presuppose that what the founders were concerned about was not a -

PAN: I asked you a yes, no - yes or no question. Could a president who ordered SEAL Team Six to assassinate a political rival, who was not impeached, would he be subject to criminal prosecution?

SAUER: If he were impeached and convicted first.

PAN: So your answer is no?

SAUER: My answer is qualified, yes.

(END VIDEO CLIP)

PEREZ: And that's where you hear the former president's legal team. They're being cornered really on this idea that well, if he was impeached, and he was convicted, then only then could the Justice Department actually bring a prosecution against the former president. Fascinating argument.

RAJU: It really is. And we'll dive into that more in just a matter - in a second here. But Evan, I want to first ask you about what was like - what it was like in the courtroom. You were inside the room itself. You're watching Donald Trump. What was he doing as this all played out?

PEREZ: Well, for most of the - the - the - his - his attorney's presentation, the former president stood - sat there, he leaned forward a few times when he was trying to listen to Judge Henderson who spoke very softly. He was paying attention, very close attention. Occasionally, he started taking notes though when the government - when the government's presentation began.

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When James Pearce, the government attorney began making his presentation, the former president taking furious notes in some - on a yellow pad, in some cases passing those notes to his attorneys to John Sauer. We don't know whether Sauer used any of those notes in some of his presentation, but I'll say near the end Manu, near the end of the presentation, where Sauer was trying to make his closing, he goes back to - to this idea that the former president is not facing any allegations for anything outside of his duties in office.

This is something that has been a central part of their argument. He motioned to his client, to the former president and Trump nodded, nodded very, very strongly at - at his lawyers so seemingly very approving of that particular argument.

RAJU: So - so interesting. We'll see how they decide to rule. Could happen quickly. Evan Perez outside the courthouse. Thank you for that. And now I want to bring in two of our favorite legal analysts, Shan Wu is here with me in Washington. And Jennifer Rodgers joins us from New York. Thank you both for joining us this morning.

Jennifer, I want to start with you. But I want first of all, do you guys both to listen to how the attorneys on both sides of this case responded to that hypothetical that Evan talked about from Judge Pan about if Trump as President committed a criminal act, but was not impeached, was - was impeached but not convicted, whether he would be - could be found - could be prosecuted. This is how those attorneys responded to that.

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PEARCE: What kind of world are we living in if, as I understand my friend on the other side to say here, a president orders his SEAL team to assassinate a political rival and resigns, for example, before an impeachment, not a criminal act. President sells a pardon, resigns or is not impeached, not a crime. I think that is extraordinarily frightening future.

SAUER: What he is forecasting is a situation where the floodgates will be opened. We are in a situation where we have the prosecution of the chief political opponent who's winning in every poll (inaudible) election upcoming next year, and is being prosecuted by the administration that he's seeking to replace. That is the frightening future.

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RAJU: Jennifer, what is your takeaway from that back and forth?

JENNIFER RODGERS, CNN LEGAL ANALYST: So this is what we call the parade of horribles. This is when the lawyers say, if you find in this way, here's how horrible things can get under your interpretation. And the use of hypotheticals is very common by judges, and also by counsel to try to say, if you do this, here's what it means. So that's why you have those contrasting views.

Trump's lawyers saying, you know, no presidents will be able to do anything because there'll be so scared of what might happen to them. And you have the Special Counsel's lawyers say, presidents can do anything, including kill their political rivals with no consequences whatsoever. And then you have the court kind of chiming in with their own hypotheticals to kind of test the boundary. So that's a very common argument method.

And I think it's very effective here, when you think about a president who might order the assassination of a political rival. So think about how that would be obviously a terrible thing. Although honestly, the truth is, you don't have to go too far from the facts of this particular case, to have a parade of horribles, right?

The notion of a president doing what this former president did. Influencing an election, trying to steal an election. So you know, in some ways, the parade of horribles, you know, plays out with the facts of this case, but that's what they're doing there. And it's an effective tool. And I think that it helps to educate the public as well about what the stakes are here.

RAJU: And we heard that a Trump attorney along with Trump himself talked about the fact that Donald Trump is the front runner in this campaign Shan. Do you think that that actually has could have some convince the judges that Donald Trump is the front runner. He very well could be the nominee, and that's why he's being targeted here.

SHAN WU, FORMER FEDERAL PROSECUTOR: I think that's in the back of their minds. That's why the case is so high profile, but whether he's a front runner or not, or if he barely had a blip in the polls, that doesn't affect legal analysis. I mean, either there is presidential immunity or not.

That does not depend upon public polling. And to Jennifer's point here, the parade of horribles or the Pandora's Box argument here, that's absolutely true, except it's flipped, the Pandora's box would be opened is if the court - any court would define that you can't prosecute a president for doing anything. That's the Pandora's box, and Trump is showing us exactly what's in it. He talks about it all the time, what he's going to do.

RAJU: Yeah, and yes, we'll talk more about that too, in the next part about what Trump says he will do if the Pandora's box as he says is opened. What was so interesting too in this court proceeding today was about them talking about the impeachment proceedings that played out in the Capitol (inaudible) remember, Donald Trump was acquitted after he was impeached by the House and a large part lot of the senators said that if there is something that Donald Trump did to break the law, the - the courts and the legal system would take shape, would deal with it outside of the political process.

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That back and forth played out in court today.

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PAN: He was - was president at the time and his position was that no former office holder is immune. And in fact, the argument was, there's no need to vote for impeachment because we have this backstop, which is criminal prosecution. And it seems that many senators relied on that, voting to acquit.

SAUER: Relies on speculation. (inaudible) I mean the Court I think, lacks the ability to intuit what senators - what motivated senators' votes in the impeachment process.

(END VIDEO CLIP)

RAJU: But good thing we have tape, because he says that relies on speculation. Well, actually not so much as what Senator Mitch McConnell, the Republican leader said about his decision to acquit.

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SEN. MITCH MCCONNELL (R-KY): But this underscores that impeachment was never meant to be the final forum for American justice. We have a criminal justice system in this country. We have civil litigation. And former presidents are not immune from being accountable by either one.

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RAJU: What's your take, Jennifer?

RODGERS: So what this all underscores here is that in evaluating whether this clause actually does give him immunity here. You know, it's not so much about whether Donald Trump through his agents conceded before that he could be prosecuted later. I mean, the judges can think about that, but they really do have to analyze this on its own merits. But the issue is, this is a political process. Impeachment is a political process. It has legal trappings.

But it doesn't have anything to do with whether, you know, these legal proceedings going on now, it's separate. So you can't expect that someone will be impeached and convicted in the Senate on the legal merits, right? It's a political thing. So that really, to me, is what the court is thinking about. They're just thinking that's a separate thing. Double Jeopardy is a legal issue, not a political issue. And we're going to decide what this clause means without thinking about that issue as he frames.

RAJU: Yeah, I mean, look, I covered that trial very closely. I talked to so - every single senator who was in - took a vote essentially. I heard that time and time again, this is the ones who voted to acquit, let's deal with this in the legal system. Let's not deal with in the political system. And now, this is obviously going to be testing in the court.

Shan, I do want to ask you, Shan about the judges here, in this case, because you actually have a history of - of the - in front of three - all three of them, I suppose. Right? And in this case, what do you - what is your understanding of how they may be weighing in on this? And what do you think of the judges themselves?

WU: These are very sharp judges. And I've argued in front of a couple.

RAJU: The two Biden appointees. One George H.W. Bush appointee.

WU: Right. And I would say, probably the star of the questioning today probably was Judge Florence Pan who full disclosure is a friend of mine and friend of my family's. But she really cut to the heart of the matter with these hypotheticals. And just as Jennifer was saying, hypotheticals are meant to explore the outer bounds of what the arguments are. So it puts a stress test on what the crux the arguments are.

And when you look at what the judges were asking you about today, they very clearly get the idea that if you argue for absolute broad presidential immunity, there's a lot of problems for the system when you do that, and that's what they're trying to get to. And I really don't think under that questioning that Trump's team was able to satisfy the court.

RAJU: Yeah, let's see if they decided to rule as soon as this week. Shan Wu, Jennifer Rodgers, thank you both for joining us on this consequential morning. And coming up, the political fallout from today's hearing and Trump's decision to spend the day in Washington, the Washington courtroom instead of the Iowa campaign trail. That's next.

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RAJU: After his court hearing this morning, former President Trump said prosecuting him would lead to opening a quote, Pandora's box.

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TRUMP: That is the opening of a Pandora's box. And it's a very - it's a very sad thing that's happened with this whole situation. When they talk about threat to democracy, that's your real threat to democracy. And I feel that as a president, you have to have immunity.

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RAJU: I'm joined by my great panel of reporters to talk about that and much more. Boston Globe's Jackie Kucinich, NPR's Ayesha Rascoe and CNN's Alayna Treene. Good afternoon to you all. So nice to see you. Thanks for being here. This has obviously become Trump's new reality. The courtroom and the - he could be on the campaign trail, he could have chosen to completely ignore this. He doesn't have to be in Washington sitting in here. What is behind this strategy here? Is it simply just a suck up all the oxygen out of the room?

ALAYNA TREENE, CNN REPORTER: It's part of it? I think there's a couple of things and you're totally right. I think the -

RAJU: There are six days till Iowa and he's here in Washington.

TREENE: And he's here - exactly, all of his candidate - all of his rivals are on the trail pounding the ground. He's here in Washington. And I think what you said is - is really important to point out, which is that this was a choice. He didn't have to be here. He's choosing to take himself off the trail and be in court today. And part of it is yes, they do want to suck up all the oxygen.

They do recognize that when Donald Trump is in court, when he's talking about his legal issues, all of the media, everyone's attention is on him. And of course, this is a very crucial time when a lot of his rivals are trying to get that last minute traction, trying to get his -the last minute media attention. He's sucking up the oxygen away from that.

But the other part is that one, these are things that Donald Trump cares very much about. He very much believes that that's - in this immunity argument that he was immune from facing charges or he is immune from facing charges because he was president at the time. It's exactly why you're also going to see him in court on Thursday for a different case, an entirely different courtroom. It's his New York civil fraud trial, the closing arguments, he's going to be in court for that as well and again another case that is very personal to Donald Trump.

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So part of it is he cares a lot about this. The other part is they recognize the political benefits of him being here. And also, the boost he sees from a lot of people who really do believe that he is a victim of political persecution.

RAJU: And good thing that you mentioned that because no one behold, we have a voter from Iowa, talking about just that, and perhaps why Donald Trump is leaning into the fact that he has been charged 91 times.

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GAY LEA WILSON, IOWA VOTER: When people are working so hard for him not to be able to run, not to have the - just the fight he had for four years and the four years since then. That - that speaks positively to me because sometimes you don't look at just the people that are in favor of you, you look at who's against you.

(END VIDEO CLIP) RAJU: You look at who's against you. I think that's really what Trump

is trying to do, unite the base against the prosecutors who are coming after him.

JACKIE KUCINICH, WASHINGTON BUREAU CHIEF, THE BOSTON GLOBE: Which is why you're not hearing his opponents really go after him for this particular thing, because they know that it just has had the effect of rallying his supporters. And even though who - those who like maybe weren't all in initially, too behind him. And listen, this also was a fundraising play for Trump.

Every time he's in front of a judge, every time he's doing what he just did, he makes money from the campaign trail because of that very thing you said that people think that that that people are letting up against him. He's very good at playing the victim and they want to support him.

RAJU: Yeah, look, before you jump in Ayesha, that's going to be the one of the things that will be looked back in this primary season and Trump does win, did the opponents fail to perhaps use - seize on the fact that he has been charged with crimes legitimately in these very, very serious cases? And should they have seized on this one way or the other?

There's a New Hampshire poll out this morning. We're going to talk much more about that in the next segment. But Donald Trump is still ahead. He's a first choice for the nominee. Yes, he's losing ground, which we'll talk about how Nikki Haley's rise in the next segment. But still, he is ahead. But the question again is, was it a mistake, not for these candidates not to take advantage of the fact that he's been hit with 91 charges in four different criminal cases.

AYESHA RASCOE, NPR HOST, WEEKEND EDITION SUNDAY AND UP FIRST: Well, it shows us how strong he is that the fact that they couldn't really hit him, like, when you have some - you're - when you're running against someone who you can't really talk bad about, because everyone likes him so much. It's going to be hard for you to win, right?

Like, it's going to be hard for you to stand out because you have a base that is in love with Trump, and they remain in love with Trump. And I think that even if you didn't have these charges, they would still rally around him. The question is, this is great for the primary. This is great for him. In the general is where it's an issue. He has always been able to rally the base. But that did not - no matter what he says he did not win the last election. So rally in the base did not work for him then. So that's - that's the problem.

RAJU: Yeah, look, it's going to be a big general election. (inaudible) we'll see if he does get there and seems like he will, we'll see how this plays out. But one thing also is interesting, as part of this poll that came out this morning about just how independent voters are viewing all of this.

January 6, and obviously the efforts to try to get him off of the ballot, alleging that he was a violate the 14th amendment. This is - that Trump bears responsibility for January 6, according to this poll, 59% of New Hampshire voters and independents say that Trump bears responsibility. That same poll said that, and the question about the 14th Amendment if - whether they support Trump being removed from the main ballot. 40% of independents, yeah, not a majority.

But 40%. That's a sizable amount of independent voters who believe Trump shouldn't be president and should be disqualified for being president, or a majority saying he was responsible for January 6.

TREENE: No, I mean, I think the issue with independent voters is something that the Trump campaign also recognizes that they have a problem with. And I think, again, and to your point Ayesha is the difference in the primary versus the general. And this is going to be an issue, I think, in the general.

I will say, though, however, that something that I've been finding really interesting in my conversations with Trump's team is they have believed, I remember when the indictments first were released over the summer, and then last spring, they thought that the boost that Trump was seeing would be short lived.

They thought that the fundraising, his rise in the polls, all of that would be short lived, but it's actually been extended. And I think it's - that's something that they're also looking at very closely. Obviously, maybe not doing as well with independents, but it's something that they've seen has really lasted beyond the immediate impact of the indictments and has continued. Of course, being helped in his appearances in court today, him repeatedly reminding voters that he is in court, that he's facing these issues.

RAJU: And he's warning of this Pandora's box. What does that mean for him in his mind that he's going to go after? If he wins, he's going to go after his political opponents, the - you know the way he believes he's been persecuted?

RASCOE: Well, he's been saying that like - I mean when we covered him, you know, when he was in the White House, he was constantly talking about going against his enemies and how Obama had broken the law because he influenced the Justice Department while at the same time saying that he has complete - the complete control of the Justice Department.

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And there's nothing wrong with him telling the Justice Department what to do. So I feel like what you hear with Donald Trump is he can do whatever he wants, and everybody else needs to be very cautious, or that'll open the Pandora's box that he wants to open himself.

KUCINICH: Which has been very tricky for the Biden campaign because they don't want to weigh in on this at all, because Biden has been very resolute about not interfering with the Justice Department as Trump like to say he did.

RAJU: Right. That is a Special Counsel who brought this case.

KUCINICH: Precisely, exactly. And so that that has presented a real hurdle for them in this campaign.

RAJU: Yeah. Because we talk about them. Well, you own it, but at the same time, he has been charged so we'll see if that - how that plays out in a general election if they do face each other. All right, coming up, the entire state of Iowa is under a Winter Storm Warning. How the snow and extreme temperatures are already impacting the Iowa caucuses.

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