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Federal Judge Rules Former President Trump Cannot Assert Executive Privilege to Deny Documents Requested by House January 6th Committee; Over 70 Lawsuits Filed So Far after Eight Die During Crowd Surge at Astroworld Music Festival; Defense Calls First Witness: Will Kyle Rittenhouse Testify?; CNN Poll: 76 Percent of Adults Think Facebook Makes Society Worse. Aired 8-8:30a ET

Aired November 10, 2021 - 08:00   ET

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

JOHN BERMAN, CNN ANCHOR: The Wichita State Shockers living up to their name.

UNIDENTIFIED MALE: So it looks like Wichita State is just going to attack here and not call a timeout. It's going to be Etienne to make the decision. A logo three.

UNIDENTIFIED MALE: Oh, my goodness!

(END VIDEO CLIP)

BERMAN: That was just a little behind the three-point line. The step- back three from the logo by Tyson Etienne gave the Shockers the last second win, 60 to 57, over Jacksonville State in front of their home fans.

NEW DAY continues right now.

Good morning to our viewers here in the United States and all around the world. It is Wednesday, November 10th. I'm John Berman with Brianna Keilar. And breaking overnight, presidents are not kings, and the plaintiff is not president. Those words in a pretty stunning ruling from a federal judge that former President Trump, stunning in its strength and its certitude, that said 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 he was denied. This is the chairman of the committee investigating the insurrection.

(BEGIN VIDEO CLIP)

REP. BENNIE THOMPSON, (D-MS) CHAIR, HOUSE JANUARY 6TH COMMITTEE: It is a big deal. If you take your issue to court and lose, then you need to man up and deal with it, and not be a spoiled brat.

(END VIDEO CLIP)

BRIANNA KEILAR, CNN ANCHOR: The National Archives plans to turn over records to the committee by this Friday. Trump's lawyers, though, did immediately say that they were going to appeal. So that could have an effect here. But this is a massive legal blow, and it's coming as the January 6th committee issues 10 new subpoenas that target former Trump administration officials including senior adviser Steven Miller and press secretary Kayleigh McEnany.

And now all eyes are on Attorney General Merrick Garland, because if the Department of Justice doesn't enforce the subpoenas, then why would Trump's allies even consider complying here?

Let's talk about this now with CNN law enforcement correspondent Whitney Wild. A lot going on here between the subpoenas and this very important ruling. How are you seeing the state of things?

WHITNEY WILD, CNN LAW ENFORCEMENT CORRESPONDENT: I think this ruling is probably the most significant win for the committee that we have seen so far. It's for a list of reasons, and as you point out, there are people who are very reluctant to come forward with their testimony. And so this gives the committee a lot more flexibility in collecting information.

The goal has always been, get the paper first, get the interviews later. At least with the paper they have some candid in the moment information to use as they continue to investigate what were the catastrophic breakdowns of January 6th, what contributed to that, and what the president's mindset was as the day unfolded.

Here is the very frank ruling from the judge in this case, who had a very spirited exchange with Trump's attorneys during that hearing. Here's what she said. "Trump's position that he may override the express will of the executive branch appears to be premised on the notion that his executive power exists in perpetuity. But presidents are not kings. The plaintiff is not president." Answering the question that we have discussed a lot on our air, which is how elastic is executive privilege, she says not very. It starts and ends when the president takes office and when he leaves office. It is very much in the hands of Biden, and she is emphatic about that.

Here is how the Trump camp is responding. "The battle to defend executive privilege for presidents past, present, and future, from its outset was destined to be decided by the appellate courts. President Trump remains committed to defending the Constitution and the office of the presidency and will be seeing this process through."

So now what is the practical impact? He's going to this judge to say, issue a stay while we try to get our affairs in order to go to the court of appeals. If the judge says no, the documents may still end up with the House Committee by Friday, but there's also a change he will go to the appellate courts to try to get an emergency stay.

Long story short, Brianna, there are a lot of legal hurdles still for the committee to jump over to try to get the documents, but at the outset, this is probably for the investigation one of the biggest wins so far, if not the biggest moment.

KEILAR: Yes, such a good point. Whitney, thanks for that. BERMAN: Joining me now, former DOJ chief of the counterintelligence

section and former council for the House Ethics Committee, David Laufman. David, let me read you a quote from the decision here from the federal district judge. It reads "Plaintiff does not acknowledge the deference owed to the incumbent president's judgment. His position that he may override the express will of the executive branch appear to be premised on the notion that his executive power exists in perpetuity. But presidents are not kings, and plaintiff is not president." Your view on this ruling?

[08:05:05]

DAVID H. LAUFMAN, FORMER CHIEF OF DOJ COUNTERINTELLIGENCE SECTION: I think the judge got it exactly right. It is the current occupant of the White House, President Biden, not the former occupant, who holds the privilege. And she rejected flatly the notion that Trump in perpetuity can assert executive privilege to block a lawful congressional investigation.

So in that respect, it's an important ruling. We'll see how long this gets tied up in the appellate courts. But look, from a practical standpoint, this strategy by the Trump team is obstructive. It remains obstructive of the select committee's investigation. And we don't know how long it will be before they have access to the documents. They have a lot of other witnesses who are going to be defining these subpoenas.

And time is of the essence here. If you think about it, the select committee may have no more than 13 months to finish their work, to finish all their fact gathering, to deal with legal obstacles that arise, to write a public report that the American people can have confidence in as an objective account of what actually happened on January 6th. And that's not a lot of time to get this work done.

BERMAN: You say we'll see what the appeals court decides. That's a big we'll see here, because Trump has appealed this, or says he's going to appeal this to the appellate court here. And they have to decide whether to issue a stay. The National Archives is going to release these documents on November 12th, unless there is a stay. What do you think the likelihood is that the court, either the appellate court or ultimately the Supreme Court, will step in and say, wait, don't release the documents yet?

LAUFMAN: It's hard to say. I would like to think the judges who preside and adjudicate these issues will rise above any political fray, will zone out the noise and focus on the law and the facts, all of which present a compelling basis to reject the former president's claim and to create a pathway for the House select committee to get evidence it needs.

BERMAN: Now there is another decision that needs to be made here, and this isn't from a judge, at least a current judge. It's from Merrick Garland, the attorney general of the United States. The House has referred a criminal contempt charge to the local U.S. attorney, ultimately, it's Merrick Garland who will decide, to charge Steve Bannon or prosecute him for contempt of Congress. He has defied the subpoena from the House committee. But it has been three weeks and we haven't heard from Merrick Garland. So what is taking so long?

LAUFMAN: Well, the attorney general has testified that he is going to faithfully abide by the Department of Justice policy which explicitly says that a prosecutor can't bring a case, can't bring criminal charges unless he or she has a good faith belief that the admissible evidence is sufficient to obtain and sustain a conviction. Based on what we know in the public record, the evidence in support of a conviction here is pulverizing. There could not be a more brazen contempt of Congress than what Mr. Bannon has done. He has completely defied the subpoena.

And writing the indictment itself is not that hard to do. This indictment could write itself. It's what happens after the indictment that the department also has to anticipate and methodically plan for. What would the government's discovery obligations be? In the event of a trial, what witnesses is the government going to call. So they have to think through, like a chess game, all the stages of a criminal prosecution that could play out.

Having said that, they saw this train coming for weeks in advance, so the referral of the contempt resolution in the first place, this is on the face of it not that complex an analysis to undertake. And I don't think it should take them too much more time to make an informed decision about whether to charge Mr. Bannon.

BERMAN: Look, if you're any of the other witnesses who received this subpoena who might not want to show up, why on earth would you consider it as long as the U.S. Justice Department and the attorney general --

LAUFMAN: Exactly. Exactly right. They're going to see what happens in the Bannon case. If for some reason the contempt prosecution does not go forward, I can't imagine any of them will have an incentive to come before this committee. It will bring about the end of any enforcement of congressional subpoenas for the foreseeable future. Congress's ability to exercise oversight investigations will be substantially diminished.

BERMAN: Why would anyone respond to a congressional subpoena after that? David Laufman, thanks for coming in, appreciate it.

LAUFMAN: Thanks.

KEILAR: Turning now to the latest in the Astroworld concert tragedy. More than 70 lawsuits have been filed, 70, against the performers and the event producers, and this is the number that is growing here after eight people were killed and several more still are fighting for their lives in hospitals.

Joining me now is one of the first lawyers to file suit after the deadly concert, Thomas J. Henry. Thomas, thank you so much for being with us. Can you first just tell us how many lawsuits are in the works and how many people you are representing?

[08:10:02] THOMAS J. HENRY, ATTORNEY FOR MULTIPLE VICTIMS OF THE ASTROWORLD FESTIVAL: Yes, good morning. At the moment, we have filed 68 lawsuits for injured victims. And we intend to file probably up to 100 if not more by the end of the day or the following day.

KEILAR: And so how many -- maybe you just answered the question, but how many more people are you in talks with representing?

HENRY: There are many, many more people who have contacted me. We're in the process of being retained every day, every hour. And so it's an ongoing process that I think will continue to grow.

KEILAR: OK, so the number of plaintiffs that you have right now?

HENRY: Almost 100.

KEILAR: Almost 100. So tell us who and which entities specifically these lawsuits are against.

HENRY: Well, there is a development in that process, but at the moment, Live Nation, Travis Scott, Drake, NRG, the stadium, CSC, the security company is being added. There will be other production companies added to this lawsuit. And that is an evolving process.

KEILAR: You said there is a development. What's that?

HENRY: The development is that there are additional defendants being named in the lawsuit that we have filed, and I think that as the lawsuit develops, we may see even more defendants added to the lawsuit. There are many contracts associated with doing events. And some of those entities will surface more and more as the lawsuit develops through discovery and depositions.

KEILAR: And so explain Drake, right, Drake, his involvement, because you named him as a defendant.

HENRY: Yes. At 9:38 there was a mass casualty incident report to all the producers at the show. By 10:15, the show had ended. But in that period of time, Drake came on stage while people were being injured and killed. Those performers, Drake and Travis Scott, along with all of the event organizers, knew the dangers associated with the crowd, what was going on with the crowd, and yet they continued to perform.

And from the stage, you could see absolutely Travis Scott noticing people being injured, noticing people being carried off unconscious. And so those performers, instead of stopping the show and keeping those people safe in the crowd, and taking those steps necessary to stop the event, help stop this crowd issue, they continued, and the crowd was incited, the crowd got worse, and more people got injured because they continued to perform.

KEILAR: Thomas, can you shed light on what you believe the role of drugs to be in this probe?

HENRY: I think it is very important to figure out what kind of drugs if any the performers were on. I heard about people in the crowd, and certainly when you have crowds at concerts for years, since Woodstock, concert promoters, concert creators, performers have known there can be an element of drug use at concerts, not only with crowd, but with the performers.

And so that is still being developed and looked at. We heard all about those particular complaints in the crowd, but what has materialized to this point hasn't been anything tangible. I think what is important is to ask yourself, why is it that performers can't see what is going on in the crowd, why are they so unaware or numb to what is occurring in front of them? And there is a lot of video showing people being dragged off, and those performers are right in the same shots. You can see them, and they're not aware. And so my big concern is also what are performers doing, what kind of drugs if any are they on?

KEILAR: So can I ask you about that? If you are -- if you are wondering or looking into whether they were under the influence, how do you determine that? Time has obviously passed since the concert, so what would you be looking for? Drug testing or some sort of testimony from those close to them, what are you looking at?

HENRY: Yes, I think that people around them would be one source. I think they're another source. I think their history is yet another source. So separate and apart from there actually be a drug test administered by officials at the event, which would be great if they did that, those would be the sources that we would be looking at.

[08:15:11]

KEILAR: All right, Thomas, look, there is a long path ahead in the case of so many of these folks who have died or been injured. Thomas Henry, thank you so much for being with us.

HENRY: Thank you.

KEILAR: Did Prince Harry anticipate the January 6th insurrection? What he says he told the CEO of Twitter the day before it happened.

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

BERMAN: And heart breaking mix-up for two sets of parents after learning they gave birth to someone else's babies.

(COMMERCIAL BREAK)

BERMAN: Just released, brand-new CNN polling finds that 76 percent of adults think Facebook is making society worse. Only 11 percent say it makes society better.

This is the part that gets me. Frequent Facebook users, those who report using it several times a week, 70 percent say the social network harms rather than helps. 70 percent of frequent users say that Facebook is hurting society. Why are they using it?

Joining me now, CNN correspondent Donie O'Sullivan and CNN senior political analyst John Avlon.

[08:20:03]

Donie, I've been picking on you here about this. Seventy percent of frequent users think they're doing great harm to the world. Yet they click, click, click, click, click, click away.

DONIE O'SULLIVAN, CNN CORRESPONDENT: One, it is very addictive, right? We know how addictive these platforms are designed to be addictive, to lure you in. Also, for some people they need to be on it for keeping in touch with family or friends or some in the case for running small businesses, that's where they place their ads and sell their products.

But it is quite a stark figure to see that there, that so many people who use this platform, so regularly, think it is bad for the country.

JOHN AVLON, CNN SENIOR POLITICAL ANALYST: Yeah, and I would say, first of all, 76 percent of Americans don't agree on anything right now. This is an outlier. It is an important one in terms of the possibility of bipartisan legislation, which has been offered by people like Kevin Buck and David Cicilline in Congress.

But, importantly, you ask why. If you know this is bad for the country, why are you using it? It does sound like addiction. It sounds like tobacco.

And I do think that, you know, as we understand the impact of algorithms and the way they create addiction on individual and societal level, then I think you start to understand how insidious this is. People know it is bad for them. They know it is bad for society, they can't stop using it. We have seen a variation of this.

BERMAN: Twitter, I posted that question earlier, someone said how else are you supposed to keep track of your exes.

Another one of the questions they asked is do you know anyone persuaded by Facebook content to believe in a conspiracy theory? And on this one, Donie, yes was only 49 percent.

AVLON: Seems conservative.

O'SULLIVAN: It does. But, I mean, take that number for what it is and think about it. It is tens of millions of people, right, who know somebody and they're just talking about Facebook here, not talking about YouTube, all the other platforms. If you troll them, I'm sure that number would be much higher.

That is remarkable still, there are so many people in this country who have loved ones that are being pulled down these rabbit holes of disinformation that are tearing families apart. We have spoken to a lot of them over the past few months.

BERMAN: On your issue of regulation that everyone in the world is going to come together on this, the poll doesn't really suggest that there is wide agreement there, government regulation of Facebook should increase 53 percent, decrease 11 percent, not change 35 percent. So 53 percent say increase. It is none an overwhelming majority.

AVLON: It is a majority. If you look through the cross tabs, one thing that is striking is the broad bipartisan agreement that Facebook is bad for society. Look, once you get into questions of reform, folks will get a little freaked out. What does that look like? I think what is significant is, the conversations in congress, in the wake of the whistle-blowers hearing, have focused on, look, it is about the algorithm, stupid.

It is section 230, making these companies legally liable for whatever post may be a bridge too far for free speech reasons and others. The algorithm is what they control. That's so destructive and divisive to society and individuals as we have seen.

BERMAN: Donnie, I'll put you on the spot for something Prince Harry said, I apologize for doing this, you had enough of the royal family for over 100 years. This isn't your fault. But Prince Harry claimed at this conference that he warned twitter that the insurrection was going to happen before it happened. Watch this.

(BEGIN VIDEO CLIP)

PRINCE HARRY, DUKE OF SUSSEX: Jack and I were emailing each other prior to January 6th where I warned him his platform was allowing a coup to be staged. You know, sent the day before and then it happened, and I haven't heard from him since.

(END VIDEO CLIP)

BERMAN: He's talking about Jack Dorsey. He's talking about he CEO of Twitter saying -- Prince Harry saying he warned Jack Dorsey an insurrection was going to happen.

O'SULLIVAN: A British prince warning of an attack on the American republic. It is remarkable, it is a remarkable claim. He says there is an email. Twitter hasn't said anything about this. Jack Dorsey has not responded that we have seen.

Look, in some ways that sounds look, in some ways that sounds remarkable. In many other I was, many researchers, folks who are plugged into this world are seeing what was circulating on social media on the days leading up to January 6th and they were sounding the alarm.

BERMAN: The signs were there, even for Prince Harry.

AVLON: Yeah, I want to see the receipts on that, though.

BERMAN: Thank you very much.

The prosecution rests in the case of the trial of Kyle Rittenhouse and the defense is up next. The big question, will Rittenhouse take the stand?

KEILAR: Plus, a landmark ruling in the opioid crisis tossed out. Was Johnson & Johnson just left off the hook?

(COMMERCIAL BREAK)

[08:28:38]

KEILAR: The Kyle Rittenhouse homicide trial set to resume this morning as the prosecution rests its case after calling 22 witnesses over the course of six days.

Now we're hearing from the defense's first witnesses and Rittenhouse himself could take the stand.

CNN's Shimon Prokupecz is live for us in Kenosha, Wisconsin, with more.

This is the question here, Shimon, will we see Kyle Rittenhouse on the stand?

SHIMON PROKUPECZ, CNN CRIME AND JUSTICE CORRESPONDENT: That is the big question. And perhaps we could get that answer today. But the defense not wasting any time, once the prosecution rested their case, they have already called three witnesses as they begin to make their case that Kyle Rittenhouse was justified in using his weapon.

(BEGIN VIDEOTAPE)

PROKUPECZ (voice-over): The defense began their case in the homicide trial of Kyle Rittenhouse, with the people who were with him the night he shot three men, killing two.

Nicholas Smith telling jurors he had a conversation with Rittenhouse after the shootings.

NICHOLAS SMITH, DEFENSE WITNESS: He repeats I just shot someone, over and over. And I believe that at some point he did say he had to shoot someone.

UNIDENTIFIED MALE: What happens then?

SMITH: I tell him to walk outside and turn himself in. That was the safe bet for him. I told him to walk outside and he had said I had to, I had to shoot someone.

PROKUPECZ: JoAnn Fiedler also testifying about seeing Rittenhouse around the same time.

JOANN FIEDLER, DEFENSE WITNESS: He was pale, shaking, kind of stuttering, slurring his words, sweating.

UNIDENTIFIED MALE: Do you recall him saying anything?

[08:30:00]