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Appeals Court Unanimously Rejects Trump Immunity Claim; Appeals Court: Trump Can't Claim Immunity In Jan. 6 Case; Bipartisan Border Security Deal On Brink Of Collapse; Trump Bashes Border Bill, Says It's Bad For Lankford's Career; One-On-One With Key Senate Border Deal Negotiator; WSJ: Republicans Will "Not Get A Better" Chance At Border Reform; Today: House To Vote On Impeaching DHS Secretary Mayorkas. Aired 12-12:30p ET

Aired February 06, 2024 - 12:00   ET



DANA BASH, CNN HOST: Welcome to Inside Politics. I'm Dana Bash. And it is a very busy day here in our nation's capital. Any moment President Biden will speak from the White House on the bipartisan border bill that's on the brink of collapse. The bill includes a host of tough new border policies that the president says he'd signed but Republicans are ready to torpedo it after Donald Trump came out against it.

We're going to bring this to you live. Also, this hour, I'll speak to the Republican who negotiated that deal. But first, a big court defeat for Donald Trump. A D.C. appeals' court has unanimously rejected Trump's claim of presidential immunity in the federal election subversion case.

CNN's Paula Reid has been digging through the decision. Paula, what stands out to you about the way that these judges made the decision?

PAULA REID, CNN, CHIEF LEGAL AFFAIRS CORRESPONDENT: Was outcome was very much expected. He had already lost on this issue -- this argument that as president he should do enjoy your absolute immunity for things he did while in office. You're going to be lost on this at the trial court. And a month ago at oral arguments, the three judges appeared quite skeptical of his lawyer's arguments about the breadth and depth of this protection that he was claiming.

But what surprised me here is in addition to the constitutional analysis, the judges here eviscerating Trump for his alleged actions after the 2020 election, calling him on presidential and suggesting this is an assault on American institutions saying, quote, it would be a striking paradox if the president who alone is vested with the constitutional duty to take care that the laws be faithfully executed where the sole officer capable of defying those laws with impunity.

Now, in addition to these unprecedented constitutional questions, this is also about timing. A large part of the Trump strategy is to just try to delay, delay, delay. Push these federal cases back until after the November election, because if he is reelected, Trump's attorney general could likely make Jack Smith and both of these criminal cases go away. Now it took a month for the court of appeals to get us an answer here, but they appear to be trying to make up for lost time, trying to prevent Trump from dragging his feet too long on any potential appeal. They said that Trump has until next week to signal to the Supreme Court that he intends to appeal. If he doesn't do that, then they'll send this back down to the trial court.

But look, once the Supreme Court has this. It's unclear how long it will take though. Many sources in and around the Trump legal team tell me, they would be surprised if the Supreme Court ultimately wanted to take up this issue.

BASH: Wow. OK, standby. Because we're going to talk a lot more about the legal implications. But of course, this is all about politics. John Trump is not happy. A new statement moments ago came out and the Trump campaign spokesman argued that quote, if immunity is not granted to a president, every future president who leaves office will be immediately indicted by the opposing party without complete immunity, a president of the United States would not be able to properly function.

CNN's Kaitlan Collins is now joining me live from New York. Kaitlan, thank you so much for coming in early for us. I know you've been talking to Trump's campaign team. What else are they saying?

KAITLAN COLLINS, CNN ANCHOR, THE SOURCE: So, I think what's really key here is that Trump's team was expecting this. They did not think this court -- that this these three judges who heard this argument, an argument that Paula noted did not go well within the Trump team was going to go in their favor. So, they were bracing for this decision.

But what's different here is the time limit that this court is giving them. That is something that is essentially not something that they were expecting. It's more restrictive than what they thought the timing issue would look like here.

And now this court is saying that you have until next Monday to decide if you are going to file that emergency appeal to the Supreme Court had the merits of your argument presented to them. Let the Supreme Court of course make the decision whether or not they're going to take this up and we don't know what they would do.

But by doing this, they are basically undercutting the other avenues that the Trump legal team would have here to try to continue these appeals to try to essentially waste more time because they are pursuing that sole tactic of delaying this. And I think when you look at this decision, and you look inside what these three judges are saying. They are eviscerating every single defense that Trump's team brought that day.


All three of them saying that they have no merit, that they misread opinions and past rulings and some of these instances and arguing that Trump's claim as he's noting in his statement today from his spokesperson, Dana, this would have a chilling effect on future presidents or called future presidents to then try to prosecute their successors. They're saying that there's no merit to that argument.

So, the question here, of course is, they are going to appeal this to the Supreme Court. It's a matter of when they decide to do so by next Monday based on what we're hearing. But the question, of course, is what argument they're then going to try to present to the Supreme Court given they have a 57-page ruling right here, basically undercutting every defense that they've offered so far.

BASH: Yeah. And I'm going to talk more with my panel here about the legal aspects of this. But Kaitlan because I have the benefit of having you here. And I really want to get your political brain on this about -- what we've seen even in the last couple of weeks with poll after poll coming out.

That shows that as much as the legal issues have been a benefit to the former president in his campaign in the short term. Not so much, if in fact, he does become the Republican nominee and looking at the long term and how people view him as a candidate for president again. Is that penetrating at all inside the campaign?

COLLINS: Yeah. It's a concerning thought for them because it's exactly what Bill Barr, Nikki Haley, you know, former Vice President Mike Pence, Ron DeSantis. All of these people who have been critical of Trump or his actions have said, sure, this works great in a primary and clearly, it's benefited Trump.

Ron DeSantis knows that at one point that it had distorted the Republican primary by giving Trump such a wide berth of -- a wide lead over everyone else. But when it comes to the actual general election and those independent voters that Trump did not do well with and the question is whether or not he could make up that ground this time around.

This is not something that's going to go over well with him, especially when you look at what this -- even these three judges are saying about what's at the heart of this that Trump's view of immunity would collapse the system of separated powers. What's he's alleged to have done that day would hit right at the heart of American democracy. Having that on trial every single day would obviously not be beneficial to them and a general election and the political team inside Trump's world is quite aware of that.

BASH: Kaitlan, thank you so much. Great to see you. Let's talk more about the legal implications of this. Paula is still with us. Also joining me here at the table legal analyst, Elliot Williams and CNN Supreme Court analyst Joan Biskupic. Let's just pick up on the exact quote that Kaitlan was talking about. And I'll just read some of it from this decision.

At bottom, former President Trump's stance would collapse our system of separated powers by placing the president beyond the reach of all three branches presidential immunity against federal indictment would mean that as to the president, the Congress could not legislate, the executive could not prosecute, and the judiciary could not review we cannot accept that the office of the presidency places its former occupants above the law for all time thereafter. ELLIOT WILLIAMS, CNN, LEGAL ANALYST: So, let's say a few things in response to that. Number one, and the whole opinion is written sort of as a bit of a love letter to the rule of law. And the idea of what it takes to hold people accountable. There is a few things in that. So, with respect to that specific point, they say that, yes, presidents are entitled to protections the presidency in the United States is unique.

However, Article 2, which creates the presidency also has an interest in enforcing the law. We need to be able to enforce criminal laws. And they say that quite explicitly. Another point, and this is in response to the Trump team's quote, this idea of selective or abusive prosecutions.

The opinion lays out that no, we actually have several checks in our system, written in the constitution for ensuring that people are not selectively prosecuted. You've got to go by a grand jury, a judge has to hear the case, and then a jury has to hear it.

All of these things that in the future -- this idea that now every Democratic or Republican president is going to be impeached or prosecute by the other side just falls apart.

BASH: OK, Joan. You know, the Supreme Court better than anybody. The question is -- assuming that Trump team is going to appeal, which of course they are. What's the Supreme Court going to do? Are they going to take the case?

JOAN BISKUPIC, CNN, LEGAL ANALYST: OK. first, they'll ask for your Jack Smith response. And I guarantee you, Jack Smith lawyers right now are reading that response so that they're able to drop it in early next week. Then Donald Trump will have a chance to come back and respond to that response. You know, they could decide in just a matter of days or just maybe, you know, two weeks whether they're going to granted or not granted but this is not an easy call. And I'll tell you.

BASH: Not an easy call to take it or what the decision would be or both.

BISKUPIC: Both. Well, first of all, I think in the end, even if the justices took it up, they would affirm this kind of ruling because this ruling is really solid. It takes advantage of precedent that really counters the audacious claim that Donald Trump was making is that he should be absolutely immune.


But the issue is whether the Supreme Court itself feels like it needs to weigh in. And if there are a couple of justices who think we're not going to just leave it to the D.C. Circuit. It's ours to say in the end. So, there's some competing interests here.

On one hand I would say, Dana, the justices are already embroiled in a politically charged case to be Thursday, testing whether Donald Trump should be removed from the ballot because he's an insurrectionist. So, they're already involved in a major election case. There will be an incentive not to take this one up.

And also, as I said, this lower court opinion is very sound well- grounded is in sync with where the justices are. But again, it is a question that has never been resolved by the Supreme Court. There might be, you know, there takes only four justices to grant an appeal like this. So, we shall see. As I said, a lot of tension.

BASH: And one of the most stunning things about this decision wasn't just what I read before, which is more some theoretical about how the government should work and would work or would not work in their opinion if Donald Trump or any president had immunity. It's also really biting when it comes to him personally and his actions that precipitated this question.

They say former President Trump alleged efforts to remain in power despite losing the 2020 election were proven an unprecedented assault on the structure of our government. He allegedly injected himself into a process in which the president has no role, the counting and certifying of the electoral votes, thereby undermining constitutionally established procedures, and the will of the Congress there. They're actually delving into the core of the question of what happened and what is going through the process in the prosecution?

REID: Likely for the historical record. There is a world in which Trump will never be prosecuted on these charges. As I said, it's an open question about how long it will take the Supreme Court to go through the process of deciding, if they want to take it up. If they take this issue up, how long it takes them to decide?

There is absolutely a world in which Trump is successful at the strategy of delay, delaying this past November 2024. If he's reelected, he can make the case go away. So, we'll quote like that from these three judges. Again, I think it's to preserve the historical record for exactly what happened here and having judges evaluate that conduct.

BISKUPIC: And Dana, can I just say, who was on this panel. We had three judges, one who was appointed by George H. W. Bush in 1990, and two recent Biden appointees, and all of them signed this unanimous.

WILLIAMS: That's a really important point. When we talk about an unsigned opinion the Latin as a per curiam opinion. It's not judged, Biskupic writing for an Elliot and Paula agreeing with it, it's we the three are writing as one voice without putting any of our names on it. So, to show as a sign of unanimity.

So that's a big one, too, to the point about specifics of President Trump's particular case, at least twice in the opinion. They cite to the 30 Republican senators who said that they could not convict the president under impeachment because he was no longer president the United States. So, one of the very core arguments they were making was that well, impeachment was the way to do this.

So, you know, let's punt to the criminal courts. And now, the court said, well, actually, no, you know, watch what you say Republican senators, watch what you ask for, because now the former president can actually be charged with a crime.

BASH: And the fact that they gave this deadline for Monday. They're trying to thwart the Trump strategy to delay, delay, delay as much as they can.

BISKUPIC: Right. Typically, believe it or not, you have 90 days to go.


BISKUPIC: But you know, obviously, this is an urgent matter. So, they've given him until Monday. The Supreme Court itself, though, can slow it down a little bit more by whatever briefing schedule it puts in place for responses. And it could also issue its own stay, a postponement in effect -- while it decides whether to decide. So, there are some hurdles ahead in terms of timing.

BASH: So fascinating. Thank you. I'm so lucky to have you all here to break it down for our viewers and for me. Coming up another very big story here in Washington. Republicans are poised to reject the latest effort to help solve the crisis at the border. I'll talk to the man who is still trying to win over his colleagues, GOP senator James Lankford of Oklahoma, is next.




BASH: The bipartisan border deal that took months to negotiate and was released just two days ago is now on the brink of collapse. The number two Senate Republican John Thune of South Dakota just became the latest Republican to come out against it.

Now a reminder, this deal includes huge wins for conservatives that requires the border to be shut down when crossings average 5000 a day, that would happen for a week. Make it harder for migrants to seek asylum, make it easier to remove them if their claims are rejected. It would be the toughest border security bill in decades.

Joining me now is the lead Republican negotiator on this bill, Senator James Lankford of Oklahoma. Thank you so much for joining me. I guess my first question is about you and whether or not you personally are going to vote to advance this bill when it comes up for a procedural vote tomorrow.

SEN. JAMES LANKFORD (R-OK): Yeah. This is a bill I believe in I'm trying to be able to work through the process to be able to help colleagues understand more about it. What's actually included in it to be able to dispel the myths that are out there about it, which there seems to be 1000 myths of what's actually in this bill or not in this bill. So, we're working through that.

There is two different stages on this. The procedural stage is coming up tomorrow or the next day. I don't know when Senator Schumer would actually schedule that. The procedural motion, if it is to delay it and to say we need more time to be able to review it. I'm glad to be able to say let's delay it, let's keep it going.


But if this is all about killing it, we need to find a solution. We have a major problem on our border. We need to solve it. I understand this is not everything that everyone wants for every single proposal on it. But it's the single most significant shift that we'd have in border policy in decades. And we need to do everything that we can actually get done.

BASH: Senator, how are you going to determine whether or not it's an effort to kill it or whether it's an effort to spend more time? Meaning like, how are you going to decide whether to even vote yes on the procedure -- procedural measures?

LANKFORD: That to me conversation with my colleagues, quite frankly, to be able to walk through that. We're about to have lunch together here in just a few moments. We'll get some dialogue there. We'll be able to do some follow up on it. And so, we'll be able to determine how to be able to solve this.

BASH: How disappointed are you that your Leader Mitch McConnell, in the meeting that you all had last night told fellow Senate Republicans that if they didn't like the deal, they could just vote against it?

LANKFORD: No, that's true for everybody. I think he stated the obvious on this. If people don't like a bill, they vote against it. It's the nature of the Senate, the House or the Senate, quite frankly. So that's part of it. For me, this is a matter of we're going to work from myself and my team to be able to find solutions, to be able to say we have a national security crisis. Let's find a way to be able to solve it and we may not get 100 percent done on everything, but let's get done as much as we can.

BASH: Senator, I want to play for our viewers what president -- former President Trump said about you last night.


DONALD TRUMP (R), FORMER U.S. PRESIDENT AND 2024 PRESIDENTIAL CANDIDATE: I think this is a very bad bill for his career and especially in Oklahoma. You know, I won in Oklahoma, the senator from Oklahoma. I won 77 out of 77 counties, Ronald Reagan is second with 56. I want all 77 counties in Oklahoma. Though -- I know those people, they're great people. They're not going to be happy about this. Nobody's going to be happy about this.


BASH: Senator, you told my colleague Jake Tapper that Trump has a, quote, different job than you do right now. But just want to take a step back, the man likely to be your party's nominee for President sees his job as killing a deal that could make a crisis at the border better. What does that say about him as a leader?

LANKFORD: Well, he is in a political campaign right now, obviously, he's looking at the political issues on that. That's very different when you're in a campaign to look at all the politics of what's happening. I'm not in a political campaign right now. I'm in the United States Senate. And I'm focused on what does it take to actually secure the country right now? What can we do to actually solve a problem?

In December, we have the highest number of crossings ever in the history of that country. We've had a dramatic rise in non-Spanish speaking immigrants that have come across in the past year, folks from China, folks from Russia, folks from all the stands, Pakistan, in the Middle East. We've had a rapid rise in folks that are coming from terrorist areas in West Africa. We have a real national security issue. This is not just an immigration issue, is a rapidly growing national security. So that's what I want to work on.

BASH: Right. So, if what you're saying is true, and by all accounts it is. If somebody wants to be president of the United States, why would they put politics in front of the national security that you're talking about? I mean, is that really responsible?

LANKFORD: Well, I'll let everybody else decide and be able to ----

BASH: What do you think?

LANKFORD: My issue is, this president -- President Biden does have authorities, he's not using. President Trump had authorities that he did use. President Obama had authorities. My push has been even if President Biden enforced the border the same way President Obama did. We'd be in a very different nation right now as far as what's happening on immigration.

We have six times as many people crossing illegally. Now that we had under President Obama, we have much higher number than that we had crossing under President Trump. But I would say, when President Trump was president 2019, we had numbers of 3000, 4000, 4500, some days that were illegally crossing the border in 2019.

He was asking at that time for authorities and changes in the asylum law, this bill provides those changes in the asylum law. It would be an enormous shift, not just for this president or the next president, but for the next one, the next one, the next one is a lawmaker. I have a responsibility to look on the long horizon and say, what do we do to fix an obvious hole? This is an obvious hole in the law. Let's fix it.

BASH: Just staying on the politics that you were referring to with regard to Donald Trump. Is this -- it does die going to give President Biden a legitimate political argument to run on saying I was for this bill that you negotiated, and Republicans killed it because they wanted politics. Aren't you sort of handing Joe Biden a political issue?

LANKFORD: Yeah. I think it's obviously up to everybody and how they're voting on it because I want to actually pass this bill and to be able to get it done. But I would also say, there are things on the border that are not being done right now. Again, I go back to President Obama enforced the border much better than President Biden did.

We just did what President Obama did. We've been a much better place on it. But President Biden for whatever reason, he's choosing not to use those authorities, not to slow the process. So, I think the American people are going to judge him based on what he's doing now, not based on what this vote is one way or the other.

BASH: I just wanted -- you didn't take a step back because you spent months negotiating this bill. You talked about everything that is in there -- that the bill not only tightens immigration laws funds the border it does nothing that Democrats have wanted for years like DACA, or legal status of any kind for undocumented immigrants.

But because Donald Trump threatened your fellow Republicans not to support it, most caved not just in the House but that's happening where you are in the United States, Senate? Are you gobsmacked?


LANKFORD: I'm legitimately surprised at where we are at this moment. Because as Republicans, we've done lots of press conferences at the border. We've had lots of conversations to say things have got to change. House Republicans pass H.R. to saying we've got to have changes in the law because the law has problems. So, they passed a bill. It was a straight partisan bill. It's a very, very good bill. They passed a bill saying, we got to have a change in the law.

Senate Republicans demanded changes in the law in October and said, we're not going to move on other people's national security. And so, we're dealing with our national security. And now we get to this moment. I've got so many colleagues that are backing away. And I'm not saying it's all based on the political reasons, some will have legitimate issues and say, hey, I don't like this part of the bill, or I wish there was more in it. But some are backing away also based on the politics of the moment.

So, everybody's going to make their own decisions. To be able to walk through this, I still go back to my basic responsibility -- our responsibility to do whatever I can to be able to secure the nation as strong as I can at the moment that I'm standing in.

BASH: I want to read some of what the Wall Street Journal editorial said this morning, of course, that's a historically conservative platform. They said if Republicans reject the bill, they will hand Democrats an argument that the GOP wants border chaos and that they can exploit as a campaign issue. The chaos will continue for at least another year.

Republicans may think they can write a better law if Mr. Trump wins in November, but don't count on it. Democrats will again demand much more in return if Republicans pass up this rare chance at border reform, they may not get a better one. Are they right? You've been working at this for four months. Is this the best that you think is possible in the Congress, that might not change that much even if Donald Trump does become president again? LANKFORD: We actually tried to pass changes in law dealing with these issues. When Donald Trump was president, we did a Republican House, Republican Senate and a Republican president. Democrats did block it in the Senate at that point we were not able to be able to move on changes in the law. This bill that we're bringing forward, the three of us had negotiated together was the best that we could possibly get it.

Our desire was to be able to get it to the Senate, have amendments, have an open process on it, allow time to be able to Senate, to be able to work its will, send it to the House, allow the House to be able to do amendments and to be able to work its will on it. So, the desire always was to be able to bring it in the initial stage. And to say let's everybody get their fingerprints on it.

Let's everybody talk about it. And we'll figure out what they like. Don't like what we need to be able to change. That to me as a lawmaking when you go through the process, and to be able to actually set it in front of everybody and say, let's debate this out and make changes. We need to -- but at the end of it, worst case scenario is to do nothing. We need to do something. And I think the American people, regardless of your political persuasion want to see actually something changed on the border.

BASH: Senator, while your former colleagues in the House are saying no to what you have worked on for months, new laws to tighten the border. They're voting tonight on impeaching the Homeland Security Secretary Alejandro Mayorkas, because he hasn't done enough to secure the border. Is that a good idea?

LANKFORD: I'll let the House determine on that. I would -- my comment has been pretty consistent on this. There are major issues that are on the border. Everybody sees it. No one thinks that is going well. Are there additional authorities that could have been used that were not used?

Absolutely. Now, the next question is, is that Ali Mayorkas that made the decision not to use those authorities? Or is it President Biden that told him you cannot use those authorities? My impression is regardless of who the Secretary of Homeland Security is, it is his boss is the one who actually makes those decisions.

Donald Trump had four different Secretaries of Homeland Security, but they all had the exact same policy, regardless of who was in that chair. So, I would say the clearest thing I could on this, Ali Mayorkas and I have had frank conversations. We know where we have strong disagreements on different issues. But the president United States is the one who actually says border policy.

BASH: Sounds like you're saying impeaching him is a bad idea.

LANKFORD: I'll leave that to be able to deal with over there because if it lands over here, I'll end up sitting in it as a juror in that case.

BASH: Yeah. Well, I understand that. Thank you for coming on. And point of personal privilege, as you'd like to say in the United States Senate. I've covered you since you got here to Washington back in 2010. And I don't know of a more conservative member of Congress than you. So just to sort of lay out the facts where we see them. Thank you so much. Appreciate it.

LANKFORD: Thanks Dana. Thank you.

BASH: Coming up. More on the twisted politics of the border. Plus, Secretary of State Antony Blinken is in the Middle East meeting with leaders of Egypt and Qatar. And he is trying to make progress on the release of Israeli hostages from Gaza. We'll hear how those talks are going. Next.