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Legal View with Ashleigh Banfield

Obama to Issue Executive Orders on Immigration; Michael Brown Autopsy Gives New Clues; Letter from Hoover to MLK Discovered

Aired November 14, 2014 - 12:00   ET

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

ASHLEIGH BANFIELD, CNN ANCHOR: Hello, everyone. I'm Ashleigh Banfield. And welcome to LEGAL VIEW.

We are about to see what happens when a volatile issue moves from the back burner right up to the front burner and that front burner is turned up to high. And the chef stirs the pot really, really fast. The chef in this metaphor is President Obama, and the issue is immigration. One of many national priorities that Congress has sidestepped for years. As soon as next week, the president is expected to issue executive orders that will spare millions of illegal immigrants from the threat of deportation and separation from their families. Those include the parents of so-called dreamer children, those children who were brought here illegally when they were small and who themselves were shielded from deportation back in 2012.

The new orders are also expected to protect the undocumented parents of children who were born here and thus are American citizens. The deportation effect or efforts will focus on illegal immigrants who commit crimes or pose risks to national security. Speaking today in Myanmar, Mr. Obama said that if lawmakers can't even pass a reform bill with prove bipartisan support, then it is up to him.

(BEGIN VIDEO CLIP)

BARACK OBAMA, PRESIDENT OF THE UNITED STATES: I gave the House over a year to go ahead and at least give a vote to the Senate bill. They failed to do so. And I indicated to Speaker Boehner several months ago that if, in fact, Congress failed to act, I would use all the lawful authority that I possess to try to make the system work better. And that's going to happen. That's going to happen before the end of the year.

(END VIDEO CLIP)

BANFIELD: So Republicans' reaction to all this? Here's where that pot I was talking about boils all over the floor. Listen to my CNN colleague Dana Bash.

(BEGIN VIDEOTAPE)

DANA BASH, CNN CHIEF CONGRESSIONAL CORRESPONDENT (voice-over): Fresh from being elected by fellow Republicans as the next Senate majority leader, Mitch McConnell lashed out at President Obama for antagonizing the new GOP Congress by promising to change immigration laws by executive order. SEN. MITCH MCCONNELL (R), SENATE MINORITY LEADER: We'd like for the

president to recognize the reality that he has the government that he has, not the one that he wishes he had.

BASH: Brinkmanship is back. Even concerns about another government shutdown. McConnell insists that won't happen.

MCCONNELL: We'll not be shutting the government down.

BASH: Still, CNN is told Republicans are engaged in private discussions across the capital to cut off funding in order to block implementation of any presidential executive order, allowing some illegal immigrants to stay legally.

SEN. JOHN BOEHNER (R), HOUSE SPEAKER: We're going to fight the president tooth and nail if he continues down this path.

BASH: Arizona Republican Matt Salmon actually agrees with the president on immigration reform, but says executive action without Congress --

REP. MATT SALMON (R), ARIZONA: It would be a poison pill.

BASH: He got some 50 Republican lawmakers to sign this letter urging their GOP leaders to retaliate against the president on immigration by chopping funding for immigration policies.

BASH (on camera): So you want to use Congress' power of the purse to stop the president or at least take away what he's done on his executive order on immigration?

SALMON: That's really all we have. Either we can complain mightily and wring our hands or we can try to do something about it.

BASH (voice-over): But GOP sources tell CNN, some Republicans are reluctant since the last time they used government funding to stop an Obama policy, it led to a government shutdown.

BASH (on camera): But you know from last year, when you use the power of the purse, you risk a government shutdown. Are you willing to do that?

UNIDENTIFIED MALE: No one's talking about a government shutdown.

BASH (voice-over): As for Democrats --

REP. LUIS GUTIERREZ (D), ILLINOIS: What we want the president to do is to act big, act bold and act broadly and act soon.

BASH: Most support the president going it alone, fed up that the Senate passed a bipartisan immigration bill last year and the GOP-led House never acted.

REP. STENY HOYER (D), MINORITY WHIP: This is about doing what, from a humanitarian standpoint and a moral standpoint, is right.

(END VIDEOTAPE)

BANFIELD: And Dana Bash joins me live now.

So the president has said that he signed to forego the whole notion of executive action if the Congress can actually do something and something that's legitimate in the eyes of his desk and his pen. But what are the chances that that part will actually happen?

BASH: In the near future, before the president's deadline, the one that he talked about doing an executive order by the end of the year - actually probably -- more of like a promise that he made when he had that press conference -- unlikely. This is a lame duck Congress. And I have just been talking to House Republicans, Ashleigh, who have been meeting this morning, trying to put together the next Congress. But all of the discussion in these hallways is about how they deal with a potential executive order. And part of the issue that Republicans have is, there are no good options for them. They have lots of possibilities, as I mentioned in the piece, using the power of the purse. They're also discussing litigation. Somehow trying to fight what they believe is an overreach of his executive power in the courts. Things like that.

But you're absolutely right, I think your point in asking that question is, the best way for Republicans in the House to -- and the Senate as well, to stop the president is to do their job and legislate. But therein lies the rub. There still is a major difference at the core issue about undocumented workers, undocumented immigrants and what to do with them. The president believes and we understand that he's got some options on the table to keep at least some in the U.S. legally and Republicans say no way, for the most part.

BANFIELD: Well, this would be the time to deal with it, considering the fact that there's two years for whatever kind of sting results to wear off before an election. Dana Bash, thank you for that.

I want to bring in our guest who knows a thing or two about the issues from many different angles. Michael Wildes is an immigration attorney, a professor of immigration law as well, and a former federal prosecutor. Also joining in New York here live are prosecutor and CNN legal analyst Paul Callan.

So, Michael, I want to start with you. First and foremost, we can talk about all the politicking we want when it comes to this executive action, et cetera. That's going to be what Paul talks about. What you need to tell me is, what does this mean for all those people out there who are thinking, finally, I can stay, or, gee, why do they get to stay?

MICHAEL WILDES, IMMIGRATION ATTORNEY: There are anywhere between 11 to 20 million people here without authority. We have a broken immigration system for 30 years since President Reagan gave an amnesty. President Bush tried to pass immigration reform and his Republican Congress wouldn't do it.

We have the greatest risk takers and entrepreneurs (ph). Remember, we're sitting not a few miles from the Statue of Liberty, in a city built by Irish and Italian and Jews. We have a huge heritage of immigration.

I came from my office a few blocks away on Madison and 53rd and I'm a second generation immigration lawyer. From a family, a gentlemen who works in the Transit Authority who's disabled and his wife, who has children here, is without status. The new normal is that this country will be regarded as we did in the 1800s and the early 1900s and now in the new millennia for that extraordinary legacy of immigrants, entrepreneurs, risk takers.

BANFIELD: Give us your tired, your sick and your -

WILDES: And the bottom line --

BANFIELD: About those people -- look, we don't have the actual writing yet of what the president plans on doing. We've got inklings and some leaks et cetera of what he plans to do. But effectively, will this mean, if you have a baby and that baby was born here and that baby is an American citizen, you, mom, and you, dad, you've got your pathway?

WILDES: Well, historically the law would only allow a child to sponsor a parent at the age of 21. If the president passes this law, it will give a status or it will defer taking status away from people that are here unlawfully. Look, Ashleigh, we don't have enough handcuffs, airplanes, detention centers or beds or the inclination to remove these individuals.

BANFIELD: For people to fill the jobs that they leave.

WILDES: So are we going to separate families when we have to roll-up our sleeves in a poor economy -

BANFIELD: OK.

WILDES: And there are hands on deck? Don't we want people to have their -- the graciousness, the gratitude and the love of their families with them? They're not taking jobs from American. Understand this. These are the greatest risk takers, the immigrant community. Bill Gates, top of the fold (ph) "The Wall Street Journal" for the last 15 years, I need them. They're filling patients.

BANFIELD: So, and there are plenty of people who would -

WILDES: Business people and farm pickers.

BANFIELD: They are plenty of people who disagree and say this is a blight (ph), we're paying for education, we're paying for medicine, we're paying for, you know, law enforcement, et cetera for people who never have paid a dime to get here and are coming here in far too great numbers. That's the other side of that argument.

But there is this other needling (ph) issue and that is, who is this president to rule by fiat? Who is this president to just sign his pen like the great king and tell us how everything is going to be? And, by the way, it's legal to do that.

CALLAN: Well, it is under certain circumstances. And it's a fascinating constitutional issue. It's called executive orders. And the president, under the Constitution, has an obligation to faithfully execute the laws of the United States. And presidents traditionally have looked at that phrase and used it to take existing laws and say, this has to be filled out a little bit and they issue an executive order saying that it's part of an existing law and it has to be done for the government to work properly. Lincoln did it with the emancipation proclamation, believe it or not. Truman --

BANFIELD: Look on your screen.

CALLAN: Yes. Oh, there you go. OK.

BANFIELD: Just so -- if anybody's freaking out over king Barack -

CALLAN: Yes, that's right.

BANFIELD: Just take a peek at king Ronald and king Bill and George Bush. They all (INAUDIBLE).

WILDES: But - but -

CALLAN: They've all done it. And, historically, more Republican presidents have probably done it than Democrats.

BANFIELD: But here's what I don't understand, and both of you can weigh in on this briefly.

CALLAN: Yes.

BANFIELD: Paul, you first. Why does everybody flip their lids when it's discussed when something all of a sudden gets to executive action status?

CALLAN: Well, you know, I think - you know, just listening to the president, one of my reactions to his statement was, he says, I gave you a year to vote and you didn't, so now I'm going to do it by executive order. Well, there seems to be a contradiction in that because if they had a vote in the first place, why can he do it by executive order? He's seen --

BANFIELD: Ten seconds.

CALLAN: Yes.

WILDES: The president is not legislating. He's not making law. He's not usurping the trust that was just placed in the new Congress and doing something independently. He has the authority - actually it came out of a case that my father handled, John Lennon's case, when he got him a green card. Under that case, we learned that the government can defer taking action.

BANFIELD: But still people get very angry.

WILDES: I'd rather put the resource to getting drugsters and bad guys out of this country and leave immigrants that will work hard in the business sector or the farm sectors with their families. BANFIELD: Michael Wildes and Paul Callan, thank you for that.

And we need an whole hour just on the constitutionality of executive actions, because it isn't easy and that's why there is such, you know, there's such wriggle room on both sides of this argument.

Thank you.

WILDES: A pleasure.

BANFIELD: I want to take you to another big story that we're following today. Michael Brown may have been hit with seven shots instead of six shots. That's one opinion. But will it make a difference to one very important body? And that is the grand jury deciding if the police officer who fired the shots is going to be indicted for it.

(COMMERCIAL BREAK)

BANFIELD: As an indication of just how seriously Ferguson authorities are taking the threat of violence, school districts will be informed ahead of the media about any grand jury decision so that kids can get home safely. In the meantime, we are learning that new testimony given to the grand jury that could indicate that an additional shot to Michael Brown's chest may have been taken. I want you to take a listen to the forensic consultant, Shawn Parcells, who assisted with the private autopsy that was conducted on Michael Brown's body. And he describes this chest wound to CNN's Anderson Cooper.

(BEGIN VIDEO CLIP)

ANDERSON COOPER, ANCHOR, CNN'S "AC 360": Today Michael Brown's family attorneys, they said that Dr. Baden had found one new piece of evidence since this initial autopsy, that a chest wound that he originally thought was a re-entry wound is now determined to be an entry wound. Can you confirm that? And if so, what's the particular significance of that?

SHAWN PARCELLS, ASSISTED WITH PRIVATE AUTOPSY OF MICHAEL BROWN: Well, he's probably -- in fact, he's talking about the wound to the right upper clavicle right here in this region. And we had originally thought that the bullet continuation from the head wound above the right eye came out and re-entered. And now it's actually turns out to be a separate entry wound, which means we've gone from - we initially said at the press conference shot at least six times and now we know seven bullets hit Michael Brown.

And that can also give a different story because this particular wound, although it could have been a continuation, now it's a separate wound. This wound is in a downward traction. So it entered and actually went straight down and towards the back and lodged behind the right lung. And that tells us that Michael Brown would have been pretty much falling over almost at or on the ground when that particular bullet went into his body. A lot of people made assumptions that the wounds to the head indicated that he was charging. And we can't make those assumptions.

(END VIDEO CLIP)

BANFIELD: I want to bring in CNN legal analyst Danny Cevallos, Paul Callan and criminal defense attorney Midwin Charles to discuss the latest and what this just means for the case because everyone seizes on every little bit of forensics because, right now, it's all we seem to have.

Midwin, I want to get you to start. All of a sudden now it's seven shots, not six, and there's trajectory that indicates that it's possibly while Michael Brown was falling?

MIDWIN CHARLES, CRIMINAL DEFENSE ATTORNEY: Right.

BANFIELD: Could it not also be while Michael Brown was charging?

CHARLES: It can. And this is one of the reasons why you have to look at all the evidence in totality. But what I find most interesting about this additional bullet that sort of has come out of thin air is that we have to remember that Michael Brown was unarmed. So that means that this police officer is going to have to explain each and every bullet. At what point did he feel that his life was still in danger after bullet one, after bullet two, after bullet three, after bullet four, so on and so forth. So I think that that --

BANFIELD: And remembering for us, you know, we don't shoot on a regular basis perhaps, but bullets are fired, pop, pop, pop, pop, pop, pop, OK. They're not fired pop, let me take a peak, pop, now let me take another assessment. It is very, very rapid.

DANNY CEVALLOS, CNN LEGAL ANALYST: Well, not -

CHARLES: Well, but you still have to -- you're a trained police officer.

BANFIELD: Yes.

CHARLES: So you still have to account for your actions, particularly when someone is unarmed.

BANFIELD: Yes. Danny.

CEVALLOS: The modern theory of shooting - and when it comes to training of law enforcement is to shoot and assess, shoot and assess so that each bullet is the product of an assessment. But what most people don't realize is that the speed of thought from your brain down to your hand moves about as fast as a donkey cart. It really isn't as fast as we think. So from the time it sends the message to stop shooting, to actually stop shooting, has been tested at far slower than people realize.

But, you know, ultimately, I subscribe to the Paul Callan school of autopsy, which is - and he's been saying this since the beginning, three different autopsies are going to create three different autopsies with inconsistencies and now, even as to the autopsy for the Brown family, they are changing their story somewhat. So with each additional statement they make, there are more avenues for a defense attorney to exploit.

BANFIELD: Paul, hit on that if you will, because I just quoted Mr. Parcells. "We had originally thought," dot, dot, dot --

CALLAN: Yes.

BANFIELD: And I thought, oh, gosh, I can just hear that coming out in a court of law, if it ever gets there.

CALLAN: This is how a defense attorney builds reasonable doubt. He'll say, even Dr. Baden couldn't figure out whether he was coming at the officer or going and there's conflict. Now - and I just wanted to follow up on one thing that Midwin had raised about making it sound like a cop is firing and then thinking and firing and thinking. The testimony that we know of is that Michael Brown was 25 to 30 feet away from the officer when the officer gets outside of the car. He can cover that ground in maybe 2.5 to 3 seconds, OK. So --

CHARLES: (INAUDIBLE).

CALLAN: No, no, Michael Brown if he's coming at the officer. So the officer, literally, maybe has a second by the time he thinks about what he's going to do to decide, do I shoot or do I run away? He's got no other choice. It's a very quick decision by the officer.

BANFIELD: Yes. Last thought.

CHARLES: But there are so many other factors here. In other words, why get out of the car? Remember, he's the armed officer with training, with experience and considerably older than Michael Brown.

CEVALLOS: Who's legally authorized to make an arrest and initiate force.

BANFIELD: Right. And now knows that he's got potential suspects from the robbery -

CHARLES: But you can't initiate force without some sort of probable cause.

BANFIELD: You've got to admit, I mean he is a cop. It is his job to stop bad guys.

CHARLES: Of course.

BANFIELD: If the - you know, if some of these allegations are true, this bad guy may have just tried to get his gun and this bad guy may have just done an armed robbery and it's his job to go after him.

CHARLES: But - yes, but that's a lot of may. You know, that's -

BANFIELD: But aren't we - this is sadly where we live.

CEVALLOS: Right. But may - may in yours to the benefit of the defense. If we talk about may may --

CHARLES: That's - but the may -

BANFIELD: We may right now.

CHARLES: It does. It does. But the mays go the other way also.

BANFIELD: (INAUDIBLE) that evidence. It's true.

CHARLES: Remember, the standard is different in a grand jury for shooting. It's a lot lower. It's whether or not a crime was more than likely committed.

BANFIELD: And we hopefully will not be living in the land of may once we find out what's going on. If there's an indictment, we will get evidence in a court of law. If there's no indictment, they have promised us we will get the evidence from the grand jury proceedings, thank God, because there is just so many mays, it's driving everybody, you know, into the street. Thank you all, Midwin and Danny and Paul Callan.

I want to show you something. Look at this. Just a letter. You know, just a typewritten letter, you know, from decades ago. It is unbelievable. Fascinating history. Someone wrote this very mean letter to Dr. Martin Luther King. Someone like the FBI. You will not believe what's said in it. You will not believe what they were trying to make him believe who wrote it. And you won't believe what they're asking him to do. I'll give you this hint, suicide.

(COMMERCIAL BREAK)

BANFIELD: Imagine the nation's most powerful law enforcement official not only waging a personal vendetta against the nation's most prominent civil rights leader, but then also engineering a smear campaign apparently meant to drive the beloved icon to suicide. And you do not have to imagine it because it really actually happened 50 years ago this month.

The FBI director, J. Edgar Hoover, sinking to a new and despicable low in his war against Martin Luther King Jr. CNN's Alina Machado joins me now from Miami with a scandal that only now is getting a full and public airing.

It is - it's just jaw-dropping, Alina, and there's really no other way that I can describe this. When you read the letter and now knowing that Dr. King got this letter and it was from the FBI. I mean, spell this story out for our viewers and give them the backstory on it.

ALINA MACHADO, CNN CORRESPONDENT: Well, Ashleigh, up until this point, all we had seen was part of this letter. It had been heavily redacted. And it was supposed to sound like it had been written by one of King's supporters, but we know that this letter came from the FBI. And now thanks to Yale historian Beverly Gage, we get a better sense at just how threatening and graphic this letter really, really was.

I want to read to you part of the letter, part that was initially redacted and that is now out in the public thanks to Gage's work. It reads, "you are finish. You will find on the record for all time your filthy, dirty, evil companions, males and females giving expression with you to your hideous abnormalities and some of them to pretend to be ministers of the gospel. Satan could not do more. What incredible evilness. It is all there on the record, your sexual orgies. Listen to yourself, you filthy, abnormal animal."

A really, really difficult letter to read. Now, Gage found this un- redacted letter while she was doing research on Hoover, the former FBI director. And she was going through Hoover's official and confidential files at the National Archives when she made this discovery. Listen to what she told our Brooke Baldwin about a possible motive behind the letter.

(BEGIN VIDEO CLIP)

BEVERLY GAGE, YALE UNIVERSITY RESEARCHER: And Martin Luther King had also come out on several occasions and criticized the FBI itself for failing to enforce civil rights law. And that, for J. Edgar Hoover, was by far the worst thing that you could possibly do. And almost anyone who criticized the FBI ended up sort of on Hoover's enemy list in one way or another, though not everyone got a letter like this one.

(END VIDEO CLIP)

MACHADO: Now, it's been widely known that Hoover was on a mission to discredit King, but Gage believes this so-called suicide letter was not actually written by Hoover. She believes it was written by one of his assistant directors, a man by the name of William Sullivan (ph).

Ashleigh.

BANFIELD: I just - you know what, Alina, I looked at the top of the letter and it's addressed to King. And then the first line is, "in view of your low-grade abnormal personal behavior, I will not dignify your name with either a mister or a reverend or a doctor." It's just - it's incredible to think that the FBI was at the keyboard sending this off and asking him to effectively kill himself. Just amazing.

Alina, thank you for that. Really remarkable reporting.

Authorities in Pennsylvania are adding something to the list of charges against the suspected cop killer, Eric Frein, and that something is terrorism. Find out what he did and why it qualifies for this extraordinarily serious charge.

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