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Barr Accused of Misleading Judge and Congress; Giuliani Allies want Trump to Pay Legal Bills; Health of U.S. Democracy at Stake; Chauvin's Lawyers Demand New Trial; GOP Lawmaker Under Fire; Sam McKenzie is Interviewed about Slavery Comments. Aired 7-7:30a ET

Aired May 05, 2021 - 07:00   ET

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

[07:00:00]

BRIANNA KEILAR, CNN ANCHOR: May be numbered.

JOHN BERMAN, CNN ANCHOR: A federal judge blasts former Attorney General William Barr, coming close to suggesting a cover-up in the DOJ to protect then President Trump.

KEILAR: And a juror who convicted Derek Chauvin of murder seen wearing a Black Lives Matter shirt months before the trial. Is it grounds for an appeal.

BERMAN: And a state lawmaker in Tennessee becoming the latest Republican trying to really revive America's history of slavery.

KEILAR: Welcome to our viewers in the United States and around the world. It is hump day. It is Wednesday, May 5th.

And developing this morning, a federal judge is accusing former Attorney General Bill Barr of misleading her and Congress about his decision not to charge former President Trump with obstruction at the end of the Russia investigation. Judge Amy Berman Jackson asking that a secret memo about that decision be made public. She argued this, quote, the agency's redactions and incomplete explanations obfuscate the true purpose of the memorandum and the excited portions belie the notion that it fell to the attorney general to make a prosecution decision or that any such decision was on the table at any time. The fact that Trump would not be prosecuted was a given.

BERMAN: Joining us now, Maggie Haberman, CNN political analyst and Washington correspondent for "The New York Times."

Maggie, this is very interesting. Judge Amy Berman Jackson is more or less saying that Barr and the justice department lied about this memo. They had said, well, Barr looked at this legal memo and used this legal memo to make his decision about whether to prosecute on obstruction of justice. And Judge Jackson's saying, no, I read this memo. That's not what it did. You lied to me about this memo. What's the significance here?

MAGGIE HABERMAN, CNN POLITICAL ANALYST: This is not the first time, John, that there has been a judge who has said that the Justice Department, under Bill Barr, was less than candid, to put it mildly. So it is notable, particularly because the way that the Mueller report was rolled out to the public by Bill Barr before, you know, he did his summary, before it was put out that basically framed the way it was seen. It caused tension between him and Robert Mueller, Barr and Robert Mueller. That was a huge moment for Donald Trump because it framed the way this was seen. And this memo relates to how that took place. And this judge is underscoring not just, John, that they were not candid and up front with the court, but that they were not candid and up front with the public. And I think that's the really important piece here.

BERMAN: Does any of this, as far as you can tell, put any new jeopardy on -- on those who were involved here, including the former president?

HABERMAN: Look. I can't speak to what the level of jeopardy would be. As far as I can tell, so far this is literally about a memo and how the DOJ interacted with the court. I don't see, unless we come up with something -- and we meaning, you know, sort of the public record -- comes up with something showing that Donald Trump told Bill Barr to do that, then as of right now I don't see how this touches on Donald Trump, other than that Donald Trump was obviously pleased with the way that Bill Barr put out the Mueller report, and he has said so.

At the moment, however, I think it does raise fresh question for Bill Barr and his Justice Department about why they handled it the way they did, and that's not going to go away.

KEILAR: Yes, it's -- it makes you realize that in the history of this, you'll now have this coming from a judge that this was whitewashed. So that's going to be a key point.

I do want to touch on your reporting, Maggie. You have some new reporting that Rudy Giuliani, his allies want former President Trump to pay Giuliani's legal bills. He is fighting, of course, defamation lawsuits, in adding to being under federal investigation and having had a lot of stuff, including his personal devices, seized.

Republican raised, what, $250 million in a legal defense fund. Why isn't Trump world paying up?

HABERMAN: Right. And, Brianna, when they say that they want Trump to pay, what they're talking about is the legal fund. They want the GOP to pay. They want the Trump campaign to pay. And as you say, it is from that huge amount of money that they raised. Their argument is it was raised for that purpose, which was a legal defense fund. It appears to not have been spent on that purpose and then Giuliani was the one heavily involved in those efforts on Donald Trump's behalf, that his legal fees are not sometime in the future, they're already there because he's getting sued by voting machine companies for his false allegations, in their words, about a conspiracy to flip votes Biden's way.

Trump, as we know, does not like paying bills in general if they're his own, let alone somebody else's. He has been adamant for a while that he did not want Giuliani paid for that legal work. This is according to people close to him. That Giuliani did, in the period between November 3rd and whenever it was, January -- sometime around January 6th when the -- when the uprising happened at the Capitol.

[07:05:02]

But I think part of it may be because people around Trump are concerned that there could be opening up some level of, you know, not culpability, but certainly that it could be problematic for Trump legally given that he is facing his own investigations if he then pays for what Giuliani was doing.

BERMAN: Maggie, I want to put up on the screen so people can see it, this tweet from Ted Cruz, who made a point of saying that he went to Mar-a-Lago to have dinner with the former president. Now, clearly, it's become something of a pilgrimage where Republican lawmakers go to Mar-a-Lago and feel like they have to get close to the former president. But he also added something, which, you know, I think jumped out to you in particular.

HABERMAN: Right.

BERMAN: He said, he is in great spirits.

And so many Republicans who visit with him say that. That's what you say about someone in recovery, right, he's in great spirits. What do you think's going on here?

HABERMAN: Well, it's certainly been -- John, I would put it -- I would put it slightly differently. I think that for four years there has been this same tenor of, he's in a great mood, he's really happy, he's -- and there has always been this need for his advisors or people who are close to him, to go see him, to talk about how he's feeling. And some of that, I think, is because he was always frustrated by reporting about him, quote unquote, fuming or losing his temper or getting angry about something or, you know, acting in a way that aides found erratic.

But I don't think I've ever covered anybody where there was such a constant conversation about what their mood was. And, yes, that is part of what jumped out at me about that tweet.

BERMAN: Yes.

KEILAR: Seriously, his emotional state has been so key to all of your reporting to the story of Donald Trump. And, Maggie, thank you so much. Great reporting, as usual, on Giuliani. Thanks for being with us.

HABERMAN: Thanks, guys.

KEILAR: Liz Cheney's days as the third ranking Republican in the House, they appear to be numbered. A vote is expected next week to remove her. Minority Leader Kevin McCarthy calls her a liability, not because of her vote to impeach former President Trump, but because she can no longer, quote, carry out the message.

It is worth noting it is a message steeped in lies.

Here's McCarthy caught in a hot mic moment on Fox.

(BEGIN VIDEO CLIP)

REP. KEVIN MCCARTHY (R-CA): I think she's got real problems. I've had it with -- I've had it her. It's -- you know, I've lost confidence.

Well, someone just has to bring the motion, but I assume that will probably take place.

(END VIDEO CLIP)

KEILAR: So there those are comments by McCarthy that were edited by Fox. They do not include questions from the host.

BERMAN: So it's no longer a matter of whether Cheney can revive, but who replaces the House's highest ranking female Republican. Representative Elise Stefanik of New York is now a favorite to assume Cheney's leadership post. Stefanik was a staunch Trump ally, has McCarthy's support, Steve Scalise's report, according to "Punch Bowl," and is also a strong fundraiser who advanced the cause of female candidates in the Republican Party. But like so many other Republicans, on January 6th, she objected to the results of the election. In other words, buying into the big lie.

Now, "Washington Post" columnist, Michael Gerson, a former aide and speech writer for George W. Bush, writes in an op-ed, quote, to be a loyal Republican, one must be either a sucker or a liar. And because this defining falsehood is so obviously and laughably false, we can safely assume that most Republican leaders who embrace it fall into the second category, knowingly repeating a lie, an act of immorality is now the evidence of Republican fidelity.

And joining me now is Michael Gerson.

Michael, this is some calling, right? I mean you get biblical here. You write, whoa unto them that call evil good and good evil.

Why are the stakes so high here?

MICHAEL GERSON, COLUMNIST, "WASHINGTON POST": Well, I've actually been around awhile now. I've spent a decade on Capitol Hill, was a congressional staffer for Republicans. I worked in the White House. I worked on three Republican presidential campaigns. I've never seen anything like this where essentially an act of irrationality becomes the defining evidence of loyalty.

And it even goes further than that. The point of the column is really that this is not just irrational, it's immoral, because those who were involved in politics know we had a fair election. And by making this affirmation, they've essentially put -- you know, done an immoral act as a founding commitment of the Republican Party. And I think that that's ultimately not sustainable.

BERMAN: So, let's talk about that. You say this is a foundational lie. What exactly do you mean by that, and what's the significance? Why do you find that particularly insidious? GERSON: Because it's a lie that creates and sustains a world view that

says that there's a huge conspiracy of Republicans and disloyal Democrats, including the courts and the media, that is out to get Trump and his followers. This is the myth he's creating. And a lot of people are buying into this sincerely. But Republican leaders are not buying into it sincerely, they're buying into it out of fear or cynicism.

[07:10:03]

And this is, I think, a major failure of leadership, a major failure of moral leadership for our country.

BERMAN: It's cooked, though, right? I mean Liz Cheney is basically out. The decision has more or less been made, hasn't it?

GERSON: Yes, I do think so. I think that Kevin McCarthy, who is really a sniveling non-entity, you know what, has made the decision to do what comes easy for him. And -- but it's leaders like Cheney, leaders like Mitt Romney are important. They show people, you know, like me, who come from a different part of the party, that resistance is still possible. So I think we owe a lot to Cheney in this circumstance.

But, ultimately, American voters are going to have to punish those who hold these views. You know, Republicans right now do not feel like they're losing. They feel like they have momentum. And I think in order to really turn on this set of views, ultimately they have to fail politically. And Americans are really responsible for that.

BERMAN: You say resistance is possible. The question, though, is, is resistance futile? I mean you see the Romneys, the Kinzingers, the Cheneys of the world trying to stand up but they're getting marginalized or pushed out altogether. Mitt Romney was booed at a Utah political convention. Liz Cheney -- Cheney -- Cheney. I mean we're talking about Liz Cheney, you know, as conservatives can be, as being pushed out of a House leadership position.

I guess my question to you, Michael, is, is it time for the Cheneys and Romneys and Kinzingers and Gersons of the world to just throw up your arms to say, you know what, we tried, this Republican party isn't for us anymore?

GERSON: The two party system is so deeply rooted in our form of government, not just our form of politics, that I think that that's going to be very hard. And, ultimately, there are reform movements that succeed within parties. You had the Democratic Leadership Council under Bill Clinton that pushed for, you know, pursuing (INAUDIBLE) policy ideas as an alternative for the liberalism of his party. Or Tony Blair with New Labour in Britain, you know, a party that was fundamentally committed to, you know, democratic socialism and he reformed it in fundamental ways. It's not as though this has never happened before.

But the reality here is that Republicans are going to have to understand that for their party to change, it has to lose. That means Republicans are going to have to make the choice to vote against their partisan identity in, you know, certain cases. And that's hard because of extreme polarization. Everyone votes their own, you know, party identification. But, you know, increasingly people are going to have to look beyond that partisan identification and say, is this building a healthy democracy or not?

BERMAN: Michael Gerson, appreciate the conversation. Thanks so much for coming on this morning.

KEILAR: A motion for a new trial filed by the lawyer of former Minneapolis Police Officer Derek Chauvin. This comes after a photo surfaced online that shows one of the jurors wearing a Black Lives Matter cap and a shirt with the phrase, quote, "get your knee off our necks."

Omar Jimenez is tracking the latest developments here.

Omar, tell us what's happening.

OMAR JIMENEZ, CNN CORRESPONDENT: Yes, so, Brianna, we knew the deadline for the Chauvin team to file a motion for a new trial was today and that this was going to be a likely attempt. Now, when you look at some of these reasons cited, some of them were actually brought up over the course of the trial, including concerns about trial publicity and sequestering jurors earlier than deliberations.

And, of course, during the trial, the judge ruled there at these various points there wasn't enough there to act on those concerns. But, here we are, awaiting another judge ruling post-verdict on whether there's enough here to actually grant a new trial.

(BEGIN VIDEOTAPE)

JIMENEZ (voice over): Derek Chauvin's lawyer requesting a new trial two weeks after the former Minneapolis police officer was convicted of murdering George Floyd. Defense attorney Eric Nelson filed a motion Tuesday on grounds including in part the interest of justice, errors of law at trial, and a verdict that is contrary to law.

ELIE HONIG, CNN SENIOR LEGAL ANALYST: Virtually every defendant who gets convicted at trial asks for a new trial and then appeals. And very, very few of those arguments succeed because it is a big deal for a judge to throw out a jury verdict.

JIMENEZ: Nelson also writing the court denied Chauvin the right to a fair trial, citing Judge Peter Cahill's rejection of motions for a change of venue and a motion for a new trial on the grounds of publicly threatening the fairness of its outcome.

AREVA MARTIN, CNN LEGAL ANALYST: The judge has already reviewed many of these same points and has already determined that there wasn't sufficient evidence presented by Nelson or those motions or his request to be granted.

JIMENEZ: And without citing specific cases or jurors, the motion also claim the jury committed misconduct, felt threatened or intimidated, felt race-based pressure during the proceedings and/or failed to adhere to instructions during deliberations.

[07:15:11]

This as juror Brandon Mitchell faces some criticism for this picture, showing him wearing a Black Lives Matter hat and t-shirt with the phrase, "get your knee off our necks." Mitchell told the Minneapolis "Star Tribune" his uncle posted the photo on FaceBook after the March on Washington rally last August commemorating Martin Luther King Jr.'s "I have a dream" speech. He also told CNN affiliate WCCO he attended the march as a voter registration event, not a protest.

BRANDON MITCHELL, JUROR IN CHAUVIN MURDER TRIAL: Either way I was going to D.C. for this event, even if George Floyd was still alive.

JIMENEZ: During jury selection, all potential jurors answered a questionnaire asking if they'd participated in protests about police use of force or police brutality. Mitchell told "The Star Tribune" he answered no to this question, as well as another specifically about attending protests in the Twin Cities area.

MITCHELL: Both attorneys and the judge asked me all the question they needed and I answered them as truthfully as I could.

JIMENEZ: After the filing of the motion Tuesday, the office of the Minnesota attorney general telling CNN, the court has already rejected many of these arguments and the state will vigorously oppose them.

(END VIDEOTAPE)

JIMENEZ: And on the potential drawing of a connection between, of course, the pictures that have emerged of that juror and any allegations of juror misconduct, there are still 11 unidentified jurors in that and an alternate that we know nothing about.

And as we await the judge ruling on this motion, really the next official date on the calendar is sentencing, June 25th, where technically Chauvin could face up to 40 years in prison. But based on his lack of criminal history, the sentence would likely be much lower and it's why the prosecution is already pushing for a heavier sentence based on factors like Floyd being a particularly vulnerable victim and the crime was committed in the presence of children.

Brianna.

KEILAR: All right, Omar, such an important development in this story. We know that you'll be tracking it closely for us. Thank you.

For the second time in a month, a Republican state lawmaker is trying to rewrite history when it comes to slavery in America. And you'll hear his comments, next.

BERMAN: And a police officer's emotional reaction to criticism facing his colleagues.

(BEGIN VIDEO CLIP) UNIDENTIFIED MALE: All of us are not bad. I am not as they are. Most of us are not. There are bad people in every career. I'm so (EXPLETIVE DELETED) tired.

(END VIDEO CLIP)

BERMAN: We will speak with him live.

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[07:21:33]

BERMAN: So we've seen it twice in recent weeks, Republican lawmakers defending the infamous three-fifths compromise, which declared that slaves be counted as three-fifths of a person. The latest instance just yesterday on the floor of the Tennessee state house where a Republican representative claimed the deal was about ending slavery.

CNN's Laura Jarrett, co-anchor of "EARLY START," joins us now with more.

I can't believe this.

LAURA JARRETT, CNN CO-ANCHOR, "EARLY START": Yes, you can, and here's why. All these conversations are coming up right now as Republican lawmakers across the country are pushing new bills to limit what schools can teach students about racism in this country. But some now some find themselves in need of a history lesson.

(BEGIN VIDEOTAPE)

JARRETT (voice over): Tennessee State Representative Justin Lafferty took to the house floor Tuesday, delivering an impassioned speech during a debate over legislation aimed at limiting funding to public and charter schools if they teach critical race theory, a practice that sees racism entrenched in laws and institutions and one that has become a prime target for some conservatives lately.

REP. JUSTIN LAFFERTY (R), TENNESSEE HOUSE OF REPRESENTATIVES: I've heard referenced in here, as you all have, the three-fifth's compromise. I challenge everybody that can hear my voice, pull out a piece of paper, write down why that compromise was reached.

JARRETT: Admittedly speaking off the cuff, Lafferty went on defending what he called a bitter but necessarily compromise, erroneously claiming it was a way to end slavery.

LAFFERTY: The three-fifths compromise was a direct effort to ensure that southern states never got the population necessary to continue the practice of slavery everywhere else in the country. By limiting the number of population in the count, they specifically limited the number of representatives that would be available in the slave-holding states. And they did it for the purpose of ending slavery.

JARRETT: Yet the three-fifths compromise wasn't about ending slavery at all. It was one of a number of pro-slavery compromises baked into the Constitution during negotiations in 1787 about congressional apportionment and taxation. What Representative Lafferty failed to mention is that the compromise meant that a state could count three- fifths of its enslaved population toward its total population, even though enslaved people had no rights and certainly couldn't vote. That gave southern states more representation and effectively more political power.

Lafferty's speech received a round of applause from some of his colleagues, something that Democratic State Representative Antonio Parkinson tells "The New York Times" was, quote, especially stinging. Parkinson went on to tell "The Times," quote, I thought it was horrible. I don't care if it's policy or how you're counting heads, there's nothing good about slavery.

But Laverty isn't the only one offering this ahistorical claim about the three-fifths compromise. Last month in Colorado, during a debate on civics education in schools, State Representative Ron Hanks said this.

REP. RON HANKS (R), COLORADO HOUSE OF REPRESENTATIVES: The three- fifths compromise, of course, was an effort by non-slave states to not -- to try to reduce the amount of representation that the slave states had. It was not impugning anybody's humanity.

JARRETT: Just minutes before Hanks spoke, fellow State Representative Jennifer Bacon urged a different approach.

[07:25:00]

REP. JENNIFER BACON (D), COLORADO HOUSE OF REPRESENTATIVES: As someone who was recognized as three-fifths, we do need to understand each other when we talk about these things.

There's something to be said about the literacy of the power in this country and all the steps that were taken to keep people from it.

(END VIDEO CLIP)

JARRETT: Now, CNN reached out to Representative Lafferty for a response to his statements on the floor Tuesday, but we haven't heard back yet.

Interestingly, though, John, there are a bunch of bills on the table to stop schools from talking about systemic racism right now but no one is pushing for new laws to teach students about the legacy of slavery or what's actually in the Constitution.

BERMAN: You know, that might be helpful.

JARRETT: Google is your friend.

BERMAN: At this point. Wow.

Laura Jarrett, thank you so much for that.

Joining me now is Democratic State Representative Sam McKenzie, who represents Knoxville, Tennessee.

Representative, you were in the room during this speech. What did it feel like when an elected member of your chamber went on about how great the three-fifths compromise was?

SAM MCKENZIE (D), TENNESSEE STATE REPRESENTATIVE: Good morning.

It was an eerie and said, sad feeling because we're from the same county. But as he continued to talk, I'm like, he has this wrong. There's nothing right about his conclusions. And to hear the round of applause just spoke to the -- to the lack of knowledge of the people who are elected to write laws for our state. And this was just a bad bill. And it's unfortunate that it passed and it received those types of comments and applause.

BERMAN: I feel like this is speaking to some larger issue in Tennessee and around the country now, which is to somehow suggest that, you know, parts of slavery, not so bad. Well, you know, why are we going out of our way to teach slavery is this awful thing? It just -- it just feels so strange.

MCKENZIE: It is. It is.

You know, to be honest, the bill that we were discussing got to the point that you were making, and that is that somehow history has to remain the same history that our grandparents had, that getting to a point to say that the ruling people did everything right and there was nothing systemic about 400 years of slavery, Jim Crow laws, that we can't even teach that and say that this is the way we arrive to where we are in 2021. And it's unfortunate that we don't, as a legislature, don't want to teach our kids an accurate and full display of what the history is that make this country a great country, but with a lot, a lot of dark, dark days.

BERMAN: So I understand you had a chance to speak with Representative Lafferty after his speech. How did that go?

MCKENZIE: Well, you know, I would say uncomfortable at first. But, yes, he and I -- he and I have a relationship and a dialogue. So we had a very collegial conversation about it. Of course, we stand on two different sides of the -- of his conclusion, but, you know, his facts were correct. The south did want 100 percent (ph). They did compromise at three-fifths. But that's a horrible thing and it had nothing to do with ending slavery.

BERMAN: No, not at all. If anything, it empowered -- it gave the slave states even more power to dictate the first, you know, 80 years of U.S. history.

Representative McKenzie --

MCKENZIE: Absolutely.

BERMAN: Yes. I mean I appreciate you being with us. In some ways I'm sorry you had to sit through that, but thank you.

MCKENZIE: Well, thank you. I appreciate it. And hopefully we can stop bringing these bad bills to the table.

BERMAN: All right, New York Governor Andrew Cuomo appearing to sow doubt on the investigations and allegations against him. Why our next guest calls his defiance blatantly Trumpian.

KEILAR: And air travel is up as the world emerges from the pandemic. With that comes a rise in unruly passengers. Tempers fly, after this.

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