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Judge Rejects Trump's Effort to Keep January 6 Documents Secret; Rep. Liz Cheney (R-WY) Says, Trump Aided by GOP Leaders Who Are Willing Hostages; Officer Says, Suspects Never Mentioned Citizen's Arrest for Arbery. Aired 7-7:30a ET

Aired November 10, 2021 - 07:00   ET



BRIANNA KEILAR, CNN NEW DAY: In a nearly 40-page ruling, the judge here writing, presidents are not kings and plaintiff is not president. He retains the right to assert that his records are privileged but the incumbent president, she said, is not constitutionally obliged to honor that assertion.

JOHN BERMAN, CNN NEW DAY: The hundreds of pages of documents that Trump hoped to keep secret could now be in the committee's hands in just days. Although could is doing a lot of work in that sentence.

These documents include handwritten notes from his chief of staff along with phone call logs of Trump and Vice President Mike Pence and White House visitor records. Trump's lawyers are appealing this ruling.

So, joining us now, CNN Chief Legal Analyst Jeffrey Toobin and CNN Chief Political Correspondent co-Anchor of State of the Union Dana Bash.

Jeffrey, talk to me about this ruling, the significance and also the possible permanence (ph).

JEFFREY TOOBIN, CNN CHIEF LEGAL ANALYST: Well, these are very documents if you are seriously investigating the January 6th insurrection and what connections the White House had to it, if any. So, these are very important documents to Congress. The issue now is will this ruling stand.

The National Archives is supposed to turn them over on Friday, the day after tomorrow. But Trump's lawyers vowed not only to appeal but to try to get a stay of this ruling. So, what I expect we will see today is a request to Judge Chutkan, the judge who issued this, for her to issue a stay for her own ruling. I think that's probably unlikely since she made the ruling.

But they will immediately then go to the United States Court of Appeals for the D.C. Circuit, a three-judge panel, a very politically polarized court where, depending on which three judges he gets, may depend -- that may determine the outcome by -- just by knowing who is on the bench. We should know by Friday, whether he's going to get these documents, I mean, whether the stay is issued, if there is a stay, it could be months.

BERMAN: Jeffrey, the legal question at play here is not significant and it's not something that is crystal clear, right? It's who has the right to claim executive privilege. Does a former president have that right if the current president does not believe it's appropriate?

TOOBIN: Well, what's clear is a former president may assert executive privilege. The question in this case is what happens when there's a conflict between a former president and a current president? And what about these documents? Are they covered by executive privilege at all?

What the judge made very clear in her opinion was it is -- the privilege belongs to the executive branch not to any individual president. And we should rely on the custodian of the executive branch to protect those prerogatives. That's the current president. Joe Biden and his administration have said we don't believe these documents should be covered by executive privilege. The judge agreed.

But I could certainly see other judges, especially more conservative judges disagreeing. That's why these next two days are really going to be full of a lot of legal drama in terms of whether this ruling gets stayed.

KEILAR: And, Dana, this is all about are we going to find out what former President Trump was saying and what he was doing on January 6th, even more than we know right now? So, how is this going to affect that ultimately? Are we going to get those answers?

DANA BASH, CNN CHIEF POLITICAL CORRESPONDENT: We don't know. The answer to that is going to depend on the events that Jeffrey just laid out that we're going to see over the next 48 hours. Because, look, what was so fascinating about the judge's ruling is that, according to how she sees the law, there is one president at a time.

And the current president made the decision that the notion of finding out what happened in this unprecedented attack, and maybe more importantly the weeks and months leading up to that, is paramount. That's what matters more than anything. And so she said if that's what the current president thinks, let's go with that.

But there is a reason why for all the years we have covered Washington, and, Jeffrey, you have been covering these issues, the idea of a president not only asserting executive privilege but giving up that privilege is such a big deal because they understand it sets precedent. And the judge, in her ruling, talked about the precedent that came before what Joe Biden decided to do. And that's why what we're going to see happen is going to be critical for finding out the facts, what actually happened inside the White House walls and inside the Trump orbit, but also for the future of this question.

TOOBIN: And if I can just add, this is a very important issue, these documents.


It is not the -- it does not resolve the perhaps even more important question of what about these witnesses, what about Steve Bannon, what about John Eastman, the lawyer who was so involved. That is a whole separate legal question that the courts have yet to weigh in on. And those witnesses I think are even more important than the documents in terms of figuring out what really went on in the White House.

BERMAN: Well, on that front, Jeffrey, we are waiting on another decision, this not from a judge, well, I guess from a former judge, Merrick Garland, the U.S. attorney general, who needs to decide whether or not he's going to prosecute Steve Bannon for contempt of Congress. The House voted to refer Bannon's refusal to come testify to the Justice Department basically. Merrick has got to decide. He's had three weeks and we haven't heard a peep.

TOOBIN: I find this really kind of remarkable and, frankly, it looks to me like dithering on the part of the Justice Department. This was not a new issue. This issue was in the pipeline for weeks. There is no reason why it is taking so long for the Justice Department to decide whether they are going to prosecute Steve Bannon or not. If they decide no, this investigation is effectively over because all these other witnesses will similarly refuse to testify knowing that they have no risk of being held in contempt.

So, you know, even if the Justice Department decides to proceed on Bannon, it could likely take so long that Bannon would be able to run out the clock. But if they decide not to prosecute him, that means this investigation, at least as far as these uncooperate witnesses are concerned, is effectively over.

KEILAR: Dithering is such a good verb and one that I think can't really be overused often in Washington, I will say.

But, Dana, you are actually joining us from New Hampshire, and that's because Liz Cheney popped up there. And tell us about this event and tell us what she said essentially about Republicans dithering when it comes to this committee.

BASH: Yes. She is obviously on the side of trying to get the information that we've been talking about here. She's made clear her disdain for the former president and the way that her colleagues coddle him but she has said it in Washington, she said it in committee hearings, in the halls of Congress, but now she's saying it in New Hampshire. And it's not always about what you say, it's about where you say it in politics.


BASH (voice over): Liz Cheney took the stage in New Hampshire and made clear her disgust the day with an event the day before in Florida.

REP. LIZ CHENEY (R-WY): Just last night, former President Trump was invited by House Republican leaders to be the keynote speaker at our annual large fundraising dinner. At the dinner, he reportedly said once again that the insurrection was on November 3rd.

BASH: Landing a one-two punch at the former president and her House GOP colleagues.

CHENEY: Political leaders who sit silent in the face of these false and dangerous claims are aiding a former president who is at war with the rule of law and the Constitution.

BASH: She didn't stop there.

CHENEY: We are also confronting a domestic threat that we have never faced before, a former president, who is attempting to unravel the foundations of our constitutional republic aided by political leaders who have made themselves willing hostages to this dangerous and irrational man.

BASH: It's the kind of talk the Wyoming Republican and vice chair of the January 6th committee is now known for in Washington.

CHENEY: I love my party. I love its history. I love its principles. But I love my country more.

BASH: Being in the first in the nation presidential primary state takes that message to another level, especially here at the storied New Hampshire Institute of Politics, with pictures of presidential candidates, including Donald Trump, adorning the walls.

Former Republican National Committeeman Tom Rath, no fan of Trump, says there is still a GOP audience for Cheney's message.

TOM RATH, FORMER REPUBLICAN NATIONAL COMMITTEEMAN: I think there must be. I think you have got to develop this discussion broader than being defined by somebody who had a one-term four years ago.

BASH: Corky Messner, Republican candidate for Senate in 2020, who was endorsed by Trump, disagrees.

CORKY MESSNER (R), NEW HAMPSHIRE, FORMER SENATE CNADIDATE: I think the chances of Liz Cheney or somebody like her doing well here when they've been critical of President Trump today, her chances would be very, very, very low.

BASH: Because?

MESSNER: Well, because former President Trump is still very strong here in New Hampshire.

BASH: If Donald Trump runs in 2024, is he a sure thing in the Republican primary in New Hampshire?


MESSNER: If it were to happen today, he would win it easily. What happens two years from January, it's just hard to predict.

BASH: Which is why Cheney made a point of reminding the crowded New Hampshire Republicans she is a conservative.

CHENEY: I disagree strongly with nearly everything President Biden has done since he has been in office.

BASH: Do you think it was important for her to restate her conservative credentials as she did?


BASH: Why?

MAYBERRY: Because they'll be still in the party. I think that if you against the president, you go against the party. And if you go against the party, you're not a Republican, and that's not true.

BASH: With Trump backing Cheney's primary opponent in Wyoming, her political future there is up in the air. Traveling to New Hampshire shows she's thinking bigger.

RATH: Liz Cheney's family knows the calendar and knows where it starts. And this is not a bad place for her to be.

BASH: It is not an accident that she's here?

RATH: Nothing that happens here is an accident.


BASH (on camera): And Cheney started her speech talking about the connections that she has to New England, talking about the fact that she went to visit some of her ancestors' graves in Boston and really tried to make herself understandable and connect to the people of New Hampshire, which, John, as you know, you have covered many a race up here, is no small thing if you want to really get in the good graces of people you may be coming back and asking for their vote, although she never explicitly said that.

BERMAN: Dana, that's why I keep smiling, and Brianna knows this too, I'm sure, dozens and dozens and dozens of trips in New Hampshire that had the feel of a New Hampshire exploratory visit. And you have the look of a New Hampshire political reporter right now. It just -- it all reeks of we are talking about the next election already.

BASH: We sure are. There's no question about it. She was one of the first to come in the field of potential 2024 Republican candidates. But, look, the fact that she has an uncertain future back in Wyoming, she has a national message that she is pushing for the Republican Party. And she is a young woman who is very deeply -- cares deeply about the future of her party and, as she says, the future of her country. And she's a Cheney, so why not come up and see how things feel on the ground in the ever-important, first of the station primary state, here in New Hampshire.

KEILAR: No one goes to New Hampshire by accident, right, especially now that they have closed gate 35 Exit Reagan Airport. That just doesn't happen.

BASH: That's a whole different discussion. It's much better without 35 Exit. I'm happy about that.

BERMAN: All right. Dana, Jeffrey, thank you both very much.

President Biden now asking CEOs for help solving the supply chain crisis. We're going to hear from the White House in just a minute.

KEILAR: And the NFL slaps Aaron Rodgers with a fine for breaking COVID rules. Does this punishment fit what he did though?

First, the judge in the Ahmaud Arbery case putting a defense attorney in his place.


JUDGE TIMOTHY WALMSLEY, SUPERIOR COURT STATE OF GEORGIA: To act in the way that you just did in front of this panel disrespects -- I don't care whether you like my rulings or not or you like me or not.




KEILAR: The prosecution in the trial of the three men accused of killing Ahmaud Arbery picking apart the defense by calling to the stand the Georgia detectives on the case. Their testimony is revealing that the suspects never saw Arbery commit a crime and they never even mentioned a citizen's arrest.

CNN's Ryan Young is live for us in Brunswick, Georgia, with more. These were very interesting moments that very much poked holes in this defense by the lawyers here, of these three defendants.

RYAN YOUNG, CNN NATIONAL CORRESPONDENT: Yes, absolutely, Brianna. When you think about this, at one point, they weren't even able to play the body camera from one of the responding officers because the defense team didn't want that really admitted for several reasons, especially because you can't interview the people in the body cam video because they're trying to defend it. But at the same time, poking holes, that's exactly what happened all throughout yesterday.


YOUNG (voice over): Glynn County Police Officer Brandeberry took the stand Tuesday and gave his first impressions of what he saw that day.

LINDA DUNIKOSKI, ASSISTANT DISTRICT ATTORNEY: While you were talking to him, what was his demeanor?

OFFICER JEFFREY BRANDEBERRY, GLYNN COUNTY POLICE DEPARTMENT: He was pretty amped up. He was -- he appeared a little upset. He was talking a lot with gestures and using his hands. DUNIKOSKI: Would you describe him as animated?


YOUNG: Officer Brandeberry detailing in an interview he conducted with Defendant Gregory McMichael at the scene where Ahmaud Arbery was killed.

DUNIKOSKI: Did you notice anything on his hands?

BRANDEBERRY: Yes. He had blood on, I believe it was his left hand.

DUNIKOSKI: Did Gregory McMichael tell you what happened, and I'm going to have you do the specific quote of what he said?

BRANDEBERRY: He said, okay, I was -- I was in my driveway working on my -- I'm reupholstering some boat cushions in the back of my truck. I look up and this guy -- this guy comes hauling ass down the street. I'm talking dead run. He's not jogging.

DUNIKOSKI: So, then what did Gregory McMichael say, I did on line 19?

BRANDEBERRY: So, I haul ass in my bedroom and get my .357 magnum.

YOUNG: McMichael, his son, Travis McMichael, and William Roddie Bryan Jr. accused of chasing and killing Arbery while he was jogging in a Brunswick, Georgia, neighborhood in February of 2020. They had pled not guilty on all charges.


YOUNG: Glynn County Police Investigator Parker Marcy, the second witness at Tuesday's proceedings, detailed what McMichael told him during a later interview at the police station about chasing down Arbery in his truck.


DUNIKOSKI: What does he specifically said.

MARCY: I'm quoting, he says -- I said stop. You know, I'll blow your (BLEEP) head off or something. I was trying to convey to this guy we were not playing.

YOUNG: Once the three defendants were able to catch up to Arbery, McMichael tells Detective Marcy --

MARCY: Of course, you know, it's pretty -- don't take a rocket surgeon to figure out, you know, that the guy was cornered. He was cornered like a -- like a -- like a rat.

DUNIKOSKI: What does he say he's doing?

MARCY: He says that he's aiming.

DUNIKOSKI: Did he shoot?

MARCY: No, ma'am.

DUNIKOSKI: And after the -- he heard the shots were fired, how many shots did he say were fired?

MARCY: He mentions two.

YOUNG: Officer Brandeberry providing additional comments from McMichael.

DUNIKOSKI: What did he say then?

BRANDEBERRY: I saw him. Yes, in fact, if -- if -- to be perfectly honest with you, if I could have got a shot at the guy, I would have shot him myself.

YOUNG: Arbery's mother and father in the courtroom during both testimonies, listening as Officer Brandeberry described comments McMichael made to a bystander who interrupted the interview at the scene.

DUNIKOSKI: The male speaker asks, was he walking, what does Gregory McMichael say?

BRANDEBERRY: No. Running, flat-out, running flat-out. I don't know where he was coming from down there.

This ain't no shuffler. This guy is a (BLEEP).

YOUNG: Defense attorneys argue they were trying to conduct a lawful citizen's arrest of a man they suspected of burglary after they and several neighbors had become concerned about individuals entering a home under construction.

DUNIKOSKI: What does he say?

MARCY: There was no doubt in my mind as to who this guy was, none, you know, having seen the videos prior. My son had a missing pistol and I'm pretty certain this guy -- well, I don't know for a fact and I have no -- no reason to think that he did it other than the fact that this guy has been going over -- this guy has been doing this crap over and over and over.

YOUNG: Detective Marcy's testimony revealing McMichael's own doubts to his defense.

MARCY: I don't think the guy has stolen anything out of there, or if he did, it was early in this process. But he keeps going back there over and over and over again to this damn house.

YOUNG: In line with former Glynn County Police Officer Ricky Minshew's testimony on Monday, both Detective Marcy and Officer Brandeberry testified on Tuesday that McMichael never mentioned a citizen's arrest when interviewed.

DUNIKOSKI: While speaking with you, did Gregory McMichael very used the word, burglary?


DUNIKOSKI: Did he ever use the word, trespass?


DUNIKOSKI: Did he ever tell you while you're talking to him that he was attempting to make a citizen's arrest?


DUNIKOSKI: Did he ever tell use the word, arrest?


DUNIKOSKI: Did he ever even use the word, detain?


DUNIKOSKI: All right. Did he ever tell you that, oh, we were going to detain this guy and wait for the police to come and investigate?


YOUNG: Tuesday's trial also included a harsh rebuke from Judge Timothy Walmsley after Defense Attorney Jason Sheffield appeared frustrated by a second straight objection to his line of questioning about the definition of burglaries that Gregory McMichael claimed were happening in the neighborhood.

JASON SHEFFIELD, ATTORNEY FOR TRAVIS MCMICHAEL: I'm so confused here, Judge. Go ahead. I'm sorry I'm fine.

WALMSLEY: Ladies and gentlemen, if you could please take a step outside.

You can agree or disagree with this court. That is your prerogative. But to act in the way that you just did in front of this panel, disrespect -- I don't care whether you like my rulings or not or you like me or not, but what you just did shows a lack of respect for what the court is trying to do here.

I don't need an explanation. I do not need an apology, none of that. But I would suggest that we take a moment and think about the way that you are reacting to the court's instructions and rulings. I'm going to step off the bench because I found that -- I'll just call it rude.


YOUNG (on camera): Brianna, you could feel the temperature rising in terms of that conversation between the judge and the attorneys. In fact, they were commenting all day that some of the defense attorneys felt like they could just kind of say whatever they wanted with the judge. It was getting quite contentious. Also outside of court, we really haven't seen a lot of moral support from the community centered around this family. We are told today there will be a prayer vigil held during the lunch period. So, it will be interesting to see with some of the big names that are flying into town and that sort of increases the swelling of support for the Ahmaud Arbery family. Brianna?

KEILAR: Yes, that will very interesting. Ryan, thank you so much for that report.

BERMAN: Right. Joining me now, CNN's Laura Jarrett, Anchor of Early Start and attorney at law.

That was riveting to hear everything that just went on in the courtroom. And to watch the prosecution lay out its case and very, very focused on the idea that these defendants, they kept on saying that there had been burglaries in the area, trespassing in the area, but never specifically said that they felt or saw or believed specifically that Ahmaud Arbery committed any of them.


LAURA JARRETT, CNN ANCHOR: It is fatal to the defense. Look, everyone has the right to self-defense. That's the crux of what they're trying to do. You do not have the right to be the first aggressor. And that is the portrait. That is the picture that the prosecutors are painting. These men never saw Ahmaud Arbery with a weapon. They never saw him threatening anybody. They never actually saw him breaking into a construction site. What they saw was a black man running down is the street, and they made a set of assumptions. They haul out in their pickup truck, they pin him in a corner, as they themselves say, cornered him like a rat. Those are their words.

And now their whole predicate of their defense is this idea of a citizen's arrest, right? The problem is that the legal linchpin for that is you actually have to see a crime being committed or have at least firsthand knowledge of it. They do not have that here. They admitted to the police, I don't think this guy has actually stolen anything out of there. He just keeps going back to the house. That is not a felony. That is not enough for them to use the citizen's arrest law.

BERMAN: Yes. I mean, if you're pinning your entire defense on the notion of a citizen's arrest but at the same time you are saying, admitting at least as this testimony is revealing, that you never saw an actual crime, that is a problem.

JARRET: No. And they say -- it's based like all just third accounts and hearsay, right? It's all based on these vague videos that they see, this man who has the construction site for some time, has captured Ahmaud Arbery on videotape before. They just make a set of assumptions. They said, we saw him running, so he must have been running from someone, or someone must have been chasing him. He's just a jogger. But they, again, have brought in all of these background assumptions, but it's come back to bite them in their testimony to police. And the fact that that is their testimony to police, not now, not post-talk rationalizations, after the fact, but that day is really telling.

BERMAN: Now, the judge was angry there. It's legal term.

JARRETT: Furious.

BERMAN: He was pissed, I mean, which I know they teach you in law school.

JARRETT: They teach you how to not do what happened.

BERMAN: Why do you think he was so angry? What do you think brought it to that moment? And what's the potential impact for that?

JARRETT: It is the lack of respect. It's the callousness. It's the casualness of their demeanor in court. As Ryan mentioned, it's something just attitudinally seems to be in the atmosphere there. The judge has made a series of rulings that I'm sure the defense team doesn't like. Like, for instance, they are allowed to -- the prosecution is allowed to bring in the fact that the McMichaels had a confederate flag on their pickup truck. So there clearly is some acrimony there. But you don't want to be on the wrong side of the judge.

And lucky for them, he sent the jury out of the room so jury didn't actually see how angry the judge was. But this will continue to play out. They have more of this trial to go. And you don't want to be on the wrong side of the judge in front of the jury.

BERMAN: No. Although one does wonder if the jury, if the defense is doing this to send a message to the jury and what message the jury might be getting there and whether it's different than the judge.

JARRETT: But you know what, the judges always do a really good job of trying to create a relationship with the jury to make the jury feel like you can trust them, I'm your parent figure, I'm going to hold you through this. Juries do not like it when judges are disrespected, typically.

BERMAN: Laura Jarrett, this is great. Thank you so much for coming in.


BERMAN: Still ahead, new evidence that a lot of Facebook users are souring on Facebook. So why can't they quit it?

KEILAR: And a reality check for those who try to paint Capitol rioters as political prisoners. A real life political prisoner has something to say about that, next.