Return to Transcripts main page

New Day

Judge Rejects Trump's Effort to Keep Jan. 6 Documents Secret; Gosar Says Mock Ocasio-Cortez Murder Video Just a Metaphor; Poll: 76% of Adults Think Facebook Makes Society Worse; Fire Chief: There's Evidence Drugs Involved in Concert Chaos. Aired 6-6:30a ET

Aired November 10, 2021 - 06:00   ET


JOHN BERMAN, CNN ANCHOR: Good morning to our viewers here in the United States and all around the world. It is Wednesday, November 10. I'm John Berman with Brianna Keilar.


And breaking overnight, presidents are not kings. And the plaintiff is not president. What a ruling from a federal judge, that former President Trump cannot use executive privilege to block the House January 6th Committee from obtaining documents related to his attempt to overturn the 2020 election.

Trump had sued to keep the White House records secret but, at least by this judge, was denied.

Here's the chairman of the committee investigating the insurrection.


REP. BENNIE THOMPSON (D-MS): It's a big deal. If you take your issue to court and lose, then you need to -- to man up and deal with it and not be a spoiled brat.


BRIANNA KEILAR, CNN ANCHOR: (AUDIO GAP) -- to turn over records to the committee by this Friday. Trump's lawyers immediately said they would appeal this decision.

This massive legal blow coming as the January 6th Committee issues 10 new subpoenas targeting former Trump administration officials, including senior adviser Stephen Miller and press secretary Kayleigh McEnany.

But now, all eyes are really on Attorney General Merrick Garland, because if the Justice Department does not enforce the subpoenas, why would other Trump allies comply?

BERMAN: All right. Joining me now, CNN senior legal analyst Elie Honig. Elie, this federal judge gave a sweeping decision on Trump's claim of executive privilege.

ELIE HONIG, CNN SENIOR LEGAL ANALYST: Yes, John. This is really a big deal. This is a monumental, constitutional decision. And the judge gave a big win, at least for now, to the January 6th Committee, a big setback to Donald Trump.

The judge systematically took apart Donald Trump's arguments. First of all, executive privilege. The judge put it very bluntly: "Presidents are not kings, and Plaintiff is not President."

BERMAN: Let's just pause for a second. That's an incredible statement --

HONIG: The truth hurts.

BERMAN: -- in a ruling right there.

HONIG: Yes, and the truth hurts. And the fact is, the judge said it is going to be generally up to the current president, not the past president, to exercise executive privilege.

The judge also rejected Donald Trump's argument that the committee has no legitimate legislative purpose. The judge said, Hey, they're Congress. They told us what their legislative purpose is. It's up to them. It's not up to me, a judge. It's not up to you, the former president.

The judge also stressed the importance of the overall investigation that the committee is doing. Here's an important quote from the opinion.

The judge said, "Defendants" -- meaning the committee and National Archives -- "contend that discovering and coming to terms with the causes underlying the January 6 attack is a matter of unsurpassed public importance, because such information relates to our core democratic institutions and the public's confidence in them. The court agrees."

BERMAN: So, Elie, it's November 10. I can't help but noticing November 12 is the day that the National Archives is due to release these documents. What happens between today and the 12th?

HONIG: Yes. So John, we have some important procedural things ahead. Here's where we are right now. This opinion came out of the district court. That's the trial level court.

Now, Donald Trump has already made clear he's appealing to the court of appeals. He actually filed a notice of appeal last night. So there will be an appeal.

But the timing is so important here. Because November 12th, two days from today, that's when the documents start going over. So the key term here is are we going to see a stay? A stay basically means a pause.

Will the court of appeals come in and say, Hold on, don't turn the documents over, because we need time to hear that appeal?

We will know within the next two days whether there's a stay. Donald Trump is going to ask -- beg the court of appeals for a stay. And if they say now, count on him trying to go to the Supreme Court and saying, OK, Supreme Court. You need to put a pause on this so I can argue my appeal. That's the key thing to watch the next couple days.

BERMAN: I think people need to understand the reason a stay here is so important is because, even if they decide they want to decide the legal concept down the line, if there's not a stay, the cat's out of the bag for Donald Trump.

HONIG: It's a practicality. Starting Friday, if there's no stay, these documents are going to start going over to the January 6th Committee. Seven hundred seventy-plus pages of handwritten notes, internal memos, call logs, important internal documents from the White House.

Friday, if there's no stay, the committee will have those documents in their hands, cat's out of the bag. Essentially, there's not much the court of appeals can do to stop it at that point.

BERMAN: You have a hunch or a gut? Do you think there will be a stay before Friday?

HONIG: This is really a coin toss. On the one hand, courts of appeals typically will issue stays, because they want to have a say. They don't want to just get sort of timed out.

On the other hand, the judge's ruling here was really straight- forward, I think, really well-supported. If the court of appeals decides that ruling is really solid, we don't need to upset it, they may not issue a stay. I think it's a toss of the coin here.

BERMAN: And then the Supreme Court needs to decide the same thing.

HONIG: Exactly.

BERMAN: This has to get through two courts without a stay, which seems like a high bar. But we'll see --


BERMAN: -- over the next two days. All right. We're watching that very closely.

We're also watching what else the committee is doing in the House. And they issued another flurry of subpoenas.

HONIG: Over here on the second page, we have another wave of subpoenas, a few interesting ones that I just want to highlight. Of course, Stephen Miller, one of the primary architects of the big lie of election fraud. Kayleigh McEnany, who spread that lie from the podium at the White House. Of course, these two are very loyal to Trump. I think it's unlikely they're going to testify.

There are a couple lesser-known names that I think are worth highlighting. Keith Kellogg, who was national security advisor to Mike Pence, actually reportedly asked Donald Trump, as January 6th attack was happening, to issue a tweet or a statement to call off his followers.


Christopher Liddell also reportedly almost resigned as this was happening and had to be talked out of it.

So there could be some interesting testimony coming out of some of the witnesses who might be willing to cooperate.

BERMAN: If they choose to testify. And the reason I say that is because I think the big question with all these people who have been subpoenaed now is what will this guy decide about this guy? What will the attorney general of the United States decide to do about whether to charge or prosecute Steve Bannon for contempt of Congress?

HONIG: It's such an important decision, John. Merrick Garland has now had this case on his desk for three weeks. Now, some people have said, look, the wheels of justice grind slowly. I work at the Justice Department. I understand that.

But this case doesn't seem to me to be all that complicated. They subpoenaed Steve Bannon. He said no. He's, to this date, never formally offered up any good reason. So there's a legitimate question of what is Merrick Garland waiting for?

And here's why it's so important. Because the other Bannon wannabes, the other people who are going to defy the subpoena, have started to emerge.

Jeffrey Clark went in last week and said, No, don't feel like answering your question. Bernie Kerik has been very defiant. Stephen Miller last night said, I don't plan to comply.

And if Merrick Garland does not charge Steve Bannon, all of these people are going to -- and even more.

BERMAN: What about these people?

HONIG: Kayleigh McEnany. Miller and McEnany.

BERMAN: Like seriously, would anyone subpoenaed by Congress who doesn't want to talk ever bother showing up?

HONIG: That's exactly why the stakes are so high. If Garland does not put his foot down on Bannon, it's going to open the floodgates. It's going to become completely voluntary. People who are loyal to Donald Trump will never testify. We'll never get the full truth here.

BERMAN: Elie Honig, thank you very much.

HONIG: Thanks, John.

KEILAR: The White House and top House Democrats are calling for action against Republican Congressman Paul Gosar. He tweeted out an anime- themed video of him killing a Photoshopped Alexandria Ocasio-Cortez and attacking President Biden. We can't -- we're not going to show you a lot of this. A lot of it is

very violent. But just so you get an idea, here is a snippet of it.




KEILAR: All right. So after lawmakers voiced their outrage, Gosar tweeted this: "It's a cartoon. Relax."

Joining me now is former Florida Republican congressman, Francis Rooney, to talk about this.

Sir, we're even hearing from Gosar's estranged siblings saying that there should be accountability here. What kind of disciplinary action do you think House leadership should take?

FRANCIS ROONEY, FORMER REPUBLICAN CONGRESSMAN: Well, I'm not sure exactly all the tools that they have. But they definitely need to speak up and censure him. This conduct is -- it's unthinkable, but it's probably -- it would be illegal, I think, in a commercial workplace. And they've got to act. They've got to do something to -- to show that they don't condone it.

KEILAR: That's a really interesting point that you raise. In any workplace, if you had one employee who showed a video, whether it was anime, edited or not, of them killing another colleague, they likely would not have a job at that company anymore. So why not something like -- why not expulsion?

ROONEY: I don't know if that's a legal remedy that they have or not. But you know, this -- Gosar, this isn't the first time around with him.

The rest of his family criticized him during one of the elections a couple of terms ago when I was still in Congress. He's prone to excessive and outrageous behaviors that need to be dealt with.

KEILAR: Is -- is this different --

ROONEY: For the good of the institution.

KEILAR: Is this different to you than some of the other offensive things that Paul Gosar or some of -- some other Republicans have said or done?

ROONEY: Well, I think it is. I think it's employee harassment. Like I said, if it were a commercial environment, it would be employee harassment. This is colleague harassment, I guess.

And I know in our -- my company (ph) and most every company I know about, you would never put up with someone harassing your employees like that. You would deal with them. Like you say, probably no job.

KEILAR: What should Kevin McCarthy do here?

ROONEY: Well, he needs to speak up and -- and criticize this and possibly move to censure him or remove his committee positions or something. I mean, how outrageous is it that they're talking about removing committee positions of the people, the 13 or 10 so Republicans that voted for the infrastructure bill, but they're not saying a word about Gosar?

KEILAR: Well, that's a very -- that's a very good question, right? You have Republicans who are talking about stripping committee assignments from Republicans who voted for the infrastructure bill. Clearly, they voted for it, because they think that it works for their constituents, for their districts.

And yet, you have a lot of silence when it comes to Paul Gosar. What does that portend for the midterms and the kind of candidates that you're going to see, perhaps, coming into Congress on the Republican side?


ROONEY: Well, I think it's reflective of the hard move that the Republican Party has made. I keep thinking of the -isms that George Bush used to talk about: protectionism, nativism and populism.

And they have moved away from the traditional values. And if we continue to get these kind of candidates, like we got last time, they will continue to harden up and become more partisan and more implacable and, therefore, to me, as Liz Cheney said yesterday, more destructive to our traditional institution of democracy here.

KEILAR: Always appreciate talking with you, Congressman Rooney. Thank you so much.

ROONEY: Thanks for having me on, Brianna.

KEILAR: So if Americans have such a problem with Facebook, why do they keep using it? Some astounding new poll numbers just in about how frequent users really feel about the social media giant.

Plus, a Texas county judge considering an outside law firm to conduct the independent investigation into the Astroworld tragedy.

BERMAN: And a secret tape made after Columbine reveals the NRA's evolution on school shootings. What was the strategy that laid the groundwork for the next 20 years?



BERMAN: This morning, brand-new CNN polling about Facebook. Americans are growing more negative on the tech giant, with 76 percent saying that they think Facebook makes society worse, while just 11 percent say it makes society better. Even frequent Facebook users, those who report using the site at least

several times a week, say 70 percent to 14 percent that Facebook harms rather than helps.

Joining me now, CNN correspondent Donie O'Sullivan and columnist for "Insider," Lynette Lopez.

Donie, can I just start for a second with that last statistic I just said? Because we'll talk about what people say about how bad Facebook is and how much it's hurting. But even the people who are on -- you know, there's 70 percent of the people who say it's terrible and harming society, but they're going click, click, click, give me more. Give me more, give me more. What does that tell you?

DONIE O'SULLIVAN, CNN CORRESPONDENT: Yes. Look, I'm among them, right? I mean, these apps are addictive. And for many people, they are a critical piece of staying in touch with their families and friends around the world or even to do business.

But also in this -- in this new CNN polling, you know, many people who also use the platform, who use the platform regularly say they are served what they describe as objectional content, content that they see that -- on the platform that Facebook recommends to them that they don't want to even see.

So it is quite like a drug that people are hooked on. They know it can be bad for them, but they can't get away.

BERMAN: I get it. But if 70 percent of the people who use it say it's harming society, is that on them or is that on Facebook?

O'SULLIVAN: That is also -- shows out in the polling, in that some folks say, you know, We don't like Facebook. We think Facebook is harming society. But folks are undecided as to -- many folks are undecided as to where that harm comes from. Is it how people are using the platform or is it Facebook themselves?

BERMAN: So Lynette, how aware is Facebook -- the numbers are pretty overwhelming about how people view Facebook in general. How aware is it that there's so much resentment for the social media giant now?

LYNETTE LOPEZ, COLUMNIST, "THE INSIDER": Oh, I don't know how aware Facebook is, because they seem to keep launching products that invade more and more into our personal space.

You know, the company just changed its name to Meta. It wants to complete -- create a completely different reality where people can work and interact with each other.

Facebook isn't that great at this reality. So I don't understand why they think they should create another one.

People don't, I think, understand how much control Facebook has over the algorithms, how much control Facebook has over what they're served. I think some users think maybe it's my network. Maybe I'm -- you know,

I'm associated with a bunch of nut jobs who post crazy stuff. They don't realize, as "The Wall Street Journal" reported, I think it's two years ago, that Facebook is very aware that its algorithm elicits emotional reactions and that they are negative emotional reactions. I call the algorithm a sociopath once. And I think that's still accurate.

BERMAN: Let me give you one more poll number that jumped out at me. Do you know anyone persuaded by Facebook content to believe in a conspiracy theory? Forty-nine percent said yes; 51 percent said no.

I'm actually shocked it's only 49 percent.

LOPEZ: It seems low. It does. I feel everyone knows somebody who has gone down that rabbit hole. And maybe it's not Facebook. Maybe it's YouTube. Maybe it's Instagram. But there's always something that drags our friends and our families in and makes them believe crazy things about anything from 9/11 to, you know, vaccines.

O'SULLIVAN: Or that the election was rigged. I mean --


O'SULLIVAN: -- it is quite shocking when you see that number, that half of Americans surveyed here say that somebody they know has been dragged into a conspiracy theory rabbit hole because of Facebook.

And we talk to people like that all around the country who have lost loved ones to conspiracy theories, everything from the big lie about the election, and things like QAnon, to vaccine misinformation, to above and beyond.

So I think it's -- I think also why it's important that news organizations like CNN are doing this polling is because Facebook uses so much of its justification for how its platform works and what makes its platform so profitable, the algorithm. They say, Oh, people tell us in polls that they want to see ads that are relevant for them.

BERMAN: I will say if you haven't met someone who's gone down a rabbit hole because of Facebook, you don't know enough people.


BERMAN: You haven't been going out and meeting enough people. This was the statistic Donie was talking about, about what should be done about it.

Should the government -- government regulation of Facebook should increase, 53 percent, decrease 11 percent, not change, 35 percent. So a bare majority wants more regulation. How much of a difference would that make?


LOPEZ: I just don't think people understand what that regulation would mean. Would it mean that we hold the algorithms responsible for the content that they show people? Does it mean that we split up Facebook and make sure that it's not so big so that we have actual options in terms of what social media we use?

Does it mean that Facebook needs to change the way that it interacts and -- with its actual paying customers, the way that it makes money, in a way that -- so they're not as harmful to the regular people who use the app.

I don't know. I think people don't know enough about the situation. There have been so many issues, privacy issues, kids, you know, feeling bad after they use the app. It's just so much coming at people that they feel overwhelmed and they don't know how to fix this problem.

BERMAN: How much does Facebook care that 70-plus percent of the people of the world think it's harming society?

O'SULLIVAN: We'll find out I guess. I mean, look, as Lynnette said, they are trying to now build a metaverse. Not happy with how their role in society is playing out in this universe, Zuckerberg is now trying to create an alternative virtual reality.

Look, I will just say, on a final point on that point of regulation, it is kind of striking that only half of -- roughly half of Americans think that there should be more regulation, given that both Republicans and Democrats, and even Facebook itself, is saying, Hey, we want to be regulated in some form.

But I mean, I think it is because it is so -- this is a very new issue still. Right? I mean, it is still relatively new. How do you legislate for something like this? I think it's on all of us. It's on all of us lawmakers. It's on news people, and it's on the platforms to talk about, well, how can we try and rein some of this in?

BERMAN: It's also about almost 70 percent of people who say that Facebook is harming society, but click on it several times a week. If you think you're hurting the world, you know, I would just say you don't have to. You can stop using it. You know, you won't explode if you stop using Facebook.

Donie O'Sullivan, Lynette, thank you so much for being with us. I appreciate it.

LOPEZ: Thanks for having us.

BERMAN: The house [SIC] fire chief says there is evidence drugs may have been involved. The Houston -- the Houston fire chief says there is evidence that drugs might have been used at Astroworld. We have much more on the investigation.

KEILAR: And a former U.S. Marine jailed in a Russian prison now on a hunger strike. What he's protesting and why Russian authorities are saying that he's lying.


BERMAN: This morning, investigators are still working to determine all the possible causes of death for eight concertgoers at the Astroworld concert. The Houston fire chief says there is evidence that drugs may have played a role.

Meanwhile, lawsuits are piling up, and a Texas judge is now calling for an independent investigation.

CNN's Rosa Flores live in Houston with the very latest for us this morning. Good morning, Rosa.


The FBI announcing that it is offering its assistance and resources to the Houston Police Department. HPD has received some of the video of this event from Live Nation. That's including to Houston Mayor Sylvester Turner, who also says that they're still asking for more video. It's very early in the investigation. And that everything is on the table.

The Houston fire chief saying that drugs may have played a role in some of these deaths. This is after "The Wall Street Journal" reported that a bad batch of illegal drugs could have contributed.

And Harris County Judge Lina Hidalgo announcing that she is considering hiring an outside law firm or a third party to conduct an independent investigation.

All this as I learned from the Houston firefighters union president that there was no direct radio communication between the medical services firm hired by the organizers, a company by the name of ParaDocs, and the Houston Fire Department team that was proactively pre-positioned outside of the venue.

The union president told me that these firefighters asked ParaDocs for direct radio communication, and instead, they were given a list of cell phone numbers.

Now, he points out that cell phones are just not a reliable form of communication during an emergency, especially during large events.

So CNN has reached out to ParaDocs, asking about this issue. We received a statement that did not answer our direct question and, instead, the statement went on to say that they're cooperating with authorities -- John.

BERMAN: Yes. Were the preparations made in advance of what they could have reasonably expected would be a complicated event? Those are the questions that will be asked.

Rosa Flores, thank you very much.

New this morning, secret tapes, panicked discussions. Why NRA leaders are heard on tape, calling their own members "fruitcakes," "wackos" and "hillbillies." We'll speak with the reporter who broke the story.

And an IVF nightmare. I can't even believe I'm saying this. But a couple gives birth to a stranger's baby after being given the wrong embryo. Hear what happened next.

KEILAR: And when it comes to the sexiest man alone, you know, John Berman comes close. But "People" magazine decided to go in another direction. We disagree, but whatever. And we're going to discuss.