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Soon, Jury Begins Deliberations in Kyle Rittenhouse Trial; Book Shows Pompeo, Mnuchin Considered 25th Amendment on January 6; Wyoming Republicans Vote Rep. Liz Cheney (R-WY) Out of Party. Aired 7-7:30a ET

Aired November 16, 2021 - 07:00   ET

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

WILLIAM OGDEN, ATTORNEY WHO REPRESENTED SANDY HOOK FAMILIES IN DEFAMATOIN CASE: -- thing about this case is that it took probably the most -- one of the most tragic events in the recent history of the United States.

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And then you have somebody parade for 5.5 years this conspiracy theory that either it didn't happen or there was something behind it or that no one died. And he's kind of jumped back and forth a number of times, trying to say he's sorry, trying to say that it never happened, and then he says it did happen. And he's gone back and forth. And it is just for click bait. He takes an extreme story, and then he makes it even more extreme. And that's just to get, you know, web traffic to his website.

BRIANNA KEILAR, CNN NEW DAY: Well, William, look, this is a big outcome, and thank you so much for joining us. Of course, as always, we think so much of those families from Sandy Hook, including the ones that you represent. William Ogden, thanks.

OGDEN: Absolutely. Thank you for having me.

KEILAR: New Day continues right now.

Welcome to our viewers in the United States and around the world. It is Tuesday, November 16th. I'm Brianna Keilar with John Berman.

And a jury in Kenosha is about to begin deliberations in the homicide trial of Kyle Rittenhouse. 18 jurors, ten of them women, eight men, will be pared down to the final 12 this morning in a random drawing that uses a raffle tumbler. Yesterday, jurors heard more than five hours of closing arguments.

JOHN BERMAN, CNN NEW DAY: And both sides really portrayed different versions of the defendant. The prosecution painted Rittenhouse as an armed vigilante, an active shooter who provoked the violence that caused him to kill two people and wounded a third. The defense portrayed him as a frightened teenager trying to defend himself and the community, they said, from a violent mob.

Joining me is CNN Senior Legal Analyst Elie Honig, a former State and Federal Prosecutor. And, Elie, what you've done, and we've communicated, so the audience knows, you and I have been colluding on this, you have identified what you thought were the key moments of the closings. I want to start with the very first thing the prosecution said. Listen.

(BEGIN VIDEO CLIP)

THOMAS BINGER, ASSISTANT DISTRICT ATTORNEY, KENOSHA COUNTY: This is a case in which a 17-year-old teenager killed two unarmed men and severely wounded a third person with an AR-15 that did not belong to him. This isn't a situation where he was protecting his home or his family. He killed people after traveling here from Antioch, Illinois, and staying out after a city wide curfew.

(END VIDEO CLIP)

BERMAN: The very first thing.

ELIE HONIG, CNN SENIOR LEGAL ANALYST: Yes, John. So, this was a strong start. When you stand up to address a jury in a murder trial and you're looking at those, in this case, 18 jurors, what you see is fear. It's a scary thing to be a juror and have to render a verdict in a murder case, but confusion. They've just heard hours, days testimony, evidence, more than any human being could really process. So, your job right there is to bring them back, cut through the noise. And I thought it was smart for the prosecution to start there with a teenager with a very dangerous weapon killed two unarmed men and wounded another.

However, I think they went off the mark with what followed. What they were trying to do there was set the stage for provocation. If the prosecution can prove provocation, that overcomes self-defense. But that was a very weak version. Provocation does not mean he was out of place. Provocation doesn't mean he was up to no good. It means you specifically single someone out, say, I'm going to attack that person so that they come back at me so that I can kill or maim them. And I think things like he was out after curfew and he came from Illinois are a weak version of that.

BERMAN: Nevertheless, that first line was a concise argument that they were unable in some ways to make over the last few weeks. You said another mistake that they may have made was giving the defense some ground in some cases. Listen to this.

(BEGIN VIDEO CLIP)

JAMES KRAUS, ASSISTANT DISTRICT ATTORNEY, KENOSHA COUNTY: No one is saying that Mr. Rittenhouse did not have a right to defend himself.

Punch him in the face. Kick him in the testicles. Knee him in the face. Hit him with your gun. You don't just immediately get to shoot someone.

(END VIDEO CLIP)

BERMAN: Again, that's the prosecution there. HONIG: Yes. There's an important legal line between a situation where a person may be entitled to use some force and where a person can use lethal force. And the prosecution argument is Rittenhouse crossed that line. But the problem is they made some real damaging admissions there. They admitted Kyle Rittenhouse was being threatened. He was being attacked, and he was at least entitled to use some force. That's a big concession. And if you look at the kind of force he would have been justified in using, hit him with a gun, pistol-whip, they're giving up a lot of ground there, I thought that was a tactical mistake.

BERMAN: It's a lot of ground they're giving, especially because of this next sound we're going to play from the defense. If you think, for instance, the prosecution encapsulated their whole case with the first thing the prosecution said, the defense, to an extent, encapsulated its whole argument with this.

(BEGIN VIDEO CLIP)

MARK RICHARDS, RITTENHOUSE DEFENSE ATTORNEY: Every person who was shot was attacking Kyle, one with a skateboard, one with his hands, one with his feet, one with a gun. Hands and feet can cause great bodily harm.

(END VIDEO CLIP)

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BERMAN: The other part of that was a lot of that evidence over the case was actually introduced by the prosecution.

HONIG: Yes. And it hits extra hard when you can point at the prosecution's evidence to make your case. It took the defense a little while to get going. I thought the first hour, 90 minutes or so, were really bland and hard to follow, but that's the strongest part of the defense. When they say, he only ever shot anyone who physically attacked him.

Now, I don't know that the jury is going to be on board with grouping gun, skateboard, hands and feet. I mean, all of those things are not created equal. And so one risk is the jury may say, okay, when threatened with a gun, with a skateboard, he could use lethal force. But hands and feet, that's more debatable.

BERMAN: Now, there were moments where the defense, in particular, it felt like they may have been playing to a larger audience outside just the courtroom. Let's listen to this one right here.

(BEGIN VIDEO CLIP)

RICHARDS: This is a political case. We can take politics out of it, as in Democrat and Republican, but the District Attorney's Office is marching forward with this case because they need somebody to be responsible.

(END VIDEO CLIP) HONIG: Completely, completely inappropriate to make that remark. The whole point of a jury trial, the judge instructed the jury over and over yesterday, you are to decide this case on the law and the evidence in this courtroom, nothing outside it. And to stand up and say that's political, if a prosecutor could do that, you'd have the case dismissed. That's so improper.

And the other thing is it suggests some weakness by the defense. Because if you're arguing political prosecution, and that takes away from the focus on the facts and law, and, frankly, the law is good for the defense here, and the facts are pretty good.

BERMAN: Does that go up to a line where the judge would have stepped in during the closing?

HONIG: Yes. I mean, the judge had that prerogative. It is very rare for a judge to interrupt the closing, but he was right on the line. And it would not have surprised me if the judge said, hold on, that's inappropriate. Jury, disregard that.

BERMAN: It's interesting that he didn't because the judge had been hard on the prosecution for some things that got close to politics during the trial itself.

Finally, one more for the prosecution here, one more argument they made. Let's listen.

(BEGIN VIDEO CLIP)

KRAUS: It simply cannot be reasonable for someone to be holding an AR-15 semiautomatic rifle and be chased by someone who is unarmed, who is smaller than him, who is shorter than him, and the first thing that you do to defend yourself is you plug four rounds into him.

(END VIDEO CLIP)

HONIG: So that was on rebuttal. And I thought, where was that earlier? I thought that was the clearest statement of the prosecutor's case. This chase with Rosenbaum went from a hands and foot chase right into four shots very quickly. I thought that was a really effective way to phrase it.

BERMAN: Elie Honig, thank you. A lot to think about as the jury heads into that room.

HONIG: Thanks, John.

BERMAN: Brianna?

KEILAR: Let's talk about this now with a veteran jury consultant and attorney who worked to help select the jury in the trial of George Zimmerman, Robert B. Hirschhorn with us. Robert, good to see you this morning.

You say that this case won't be decided based on race but on guns. Can you explain that? ROBERT B. HIRSCHHORN, JURY CONSULTANT AND LAWYER: You bet. Good morning, Brianna. Thank you for having me. And on behalf of all your viewers, I want to say you and John are doing a great job as shepherds of New Day.

So, listen --

KEILAR: Thank you.

HIRSCHHORN: Thank you. So, in terms of this case, it is not about race, it is going to be all about -- in terms of these deliberations, jurors' views on guns. Are they gun right jurors, or are they gun control jurors? When you're talking about whether or not the conduct of this teenager -- we have got to remember, teenagers don't make really good decisions, especially 17-year-olds -- but for him to go down to what was -- to this part of the country at that time, which was a hotbed of action, for him to go to the fight, I think it depends on your view. Is he defending himself in terms of once he put himself in that position, or did he put himself in harm's way to be more of a vigilante?

So the bottom line, Brianna, is what I think this jury is going to be thinking about and discussing in deliberations, is that did Mr. Rittenhouse, teenager Rittenhouse, was he acting as a vigilante, or was he acting in self-defense?

KEILAR: Robert, what did you think about the jury instructions?

HIRSCHHORN: Yes, great point. So, it's 36 pages. You know, this is why, Brianna, they call it jury duty. They don't call it jury fun. They call it jury duty. It is the second highest calling behind military service we have in our country. They're really complicated. It has what is called lesser included offenses in there, that if the jury either acquits the defendant of the murder charges, or if they hang on the murder charges, they can't reach a verdict, then they can consider these lesser charges.

Here's my point. It is 36 pages of really technical, legal issues that the jury has to go through.

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I suspect that these deliberations are going to take quite a while. Because you have 12 people, collective I.Q., collective life experience. They're going to have to all work together to see if they can reach a verdict because they know that this case is under a national and international microscope.

KEILAR: How do you think the jury will view his testimony as they deliberate?

HIRSCHHORN: Yes. If you're referencing when he was crying, it might have helped a lot more. You know, the judge gave -- I call it a time- out, the same kind of thing when you want to get things to kind of calm down and get everybody to be reasonable and thoughtful. So, the judge kind of gave the jury a time-out, so to speak, like I would give my son, Jaden, if he did something I wanted him to calm down.

So, the idea is that the jury really has to look at all the testimony. I think Rittenhouse's crying, I don't think -- personally, I don't think it was going to be that effective, unless there was testimony that he was remorseful right after he shot three people. You know, if it was consistent with remorse, then it might be effective. But unless there was that kind of testimony, I just don't think it is going to be that powerful, Brianna, because it seemed like those were tears for him and not for the victims, not for the people that he shot.

And, by the way, I just want to say one other thing about what Elie said. I'm sorry, nobody has ever died as a result of being hit by a skateboard. Now, you point a gun at somebody, you have got the right to defend yourself. But being kicked or being hit, you don't bring a gun to a fistfight. You don't bring a gun when somebody is hitting you with a skateboard. And, again, that's what this jury is going to have to figure out and decide, and we're going to have to all be patient because this is going to take a while.

KEILAR: Yes. The defense said -- and, look, I think they saw that problem you highlighted repeatedly, and this was something Rittenhouse testified about, he was worried, he said, that his gun would be taken from him and used on him. So, we're going to see, Robert, that's part of it, we're going to see if the jury agrees with that.

Robert Hirschhorn, thank you so much for your perspective on this.

HIRSCHHORN: Thank you, Brianna. I appreciate the invitation to be here.

KEILAR: Of course.

Just revealed, secret conversations at the cabinet level about removing Donald Trump from office hours after the insurrection.

BERMAN: What I want to know is how Robert knew about my shepherd outfit.

Plus, the judge in the trial in the Ahmaud Arbery killing calling the defense reprehensible for demanding a mistrial because of certain people in the courtroom.

The vote in Wyoming to kick Liz Cheney, or to no longer consider Liz Cheney a member of the Republican Party.

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KEILAR: Some new details on the January 6th insurrection from Journalist Jonathan Karl's book, Betrayal, about former CIA Director Mike Pompeo and Treasury Secretary Steve Mnuchin, and discussions that they had about a possible way to remove then-President Trump from his post.

(BEGIN VIDEO CLIP) JONATHAN KARL, ABC NEWS CHIEF WASHINGTON CORRESPONDENT: I learned rock solid sourcing on this. I learned that Steven Mnuchin had a conversation with Mike Pompeo on the evening of January 6th. And I learned that Mnuchin had several conversations about the 25th Amendment, and further that Mike Pompeo actually asked for a legal analysis of the 25th Amendment and how it would be -- how it would work.

(END VIDEO CLIP)

KEILAR: All right. Let's talk about this bombshell with former Justice Department Prosecutor Paul Rosenzweig.

So, look, these were two of his most loyal allies. I wonder just what your reaction is to learning about this.

PAUL ROSENZWEIG, FORMER DOJ PROSECUTOR: Well, two things. The first is most obvious, which is, it was an appropriate reaction. I mean, the president on January 6th had kind of lost it. Some of us think he'd lost it earlier, but, clearly by then, he'd lost all sense of reality, and he continues to have a lack of that sense today.

But the second thing, of course, is that the 25th Amendment is really not well suited to problems like Trump. It was designed for a president who had a heart attack or who clearly had gone around the bend and was, you know, spouting gibberish out of his mouth. It's a cumbersome process.

In a rational world, we would fix the 25th Amendment process. It actually provides an opportunity for Congress to create a secondary process, and do something about it. But, sadly, I don't think we live in a world where that sort of legislation is possible anymore.

KEILAR: It's interesting because not being able to -- it seems like you should be able to foresee a circumstance where -- talking about the 25th Amendment or conceiving of it, that if you got to a point as a country where you needed to use it, things were going to be in disarray, right? And there may not be agreement in Congress to address it and reform it.

ROSENZWEIG: I think that's right. That's why we try and set the process up in advance. But the way it's set up now, the judges of the president's capabilities are his closest political allies, the people he appointed to the cabinet. They're the least likely to be dispassionate in their judgment. Whatever else you might think about them, they're there because they owe their job to him. So, they're going to put the thumb on his scale.

KEILAR: Let's talk about potential charges here related to January 6th. Is there enough to charge Trump or any of his ally with sedition?

ROSENZWEIG: Sedition is a really hard charge to prove because you have to prove intent to commit violence. And Trump is a master at hiding the ball, kind of like Henry II years ago. Will nobody rid me of this troublesome priest?

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And everybody took that as an order to kill Thomas Beckett, but the king could say, no, I didn't actually mean that. And Trump says, will nobody save my election? When they get violent and go and try to save his election, he can say, no, I didn't mean to be violent like that. No, I meant like legally.

And so he has got some deniability at this point, still. And unless we get testimony from inside the room from his closest allies, like Steve Bannon, about what the president actually said, and what they actually intended that day, in advance in terms of violence, or afterwards once the violence was going on, what they intended by letting it continue, it'll be a tough case to make.

KEILAR: So, then what is the legal recourse?

ROSENZWEIG: Well, in some ways, the best legal recourse is to take the law and fix it so that the president can't do this over again. For me, if I were doing this, I would actually be thinking about something like local assault conspiracy charges. The District of Columbia has all of the laws that any other state or territory does against violence, and the president was, at a minimum, I think, an instigator and complicit in that. And I think that there would probably be viable charges in that regard.

KEILAR: What about planning a coup, even if it is nonviolent --

ROSENZWEIG: Well, that --

KEILAR: -- which happened?

ROSENZWEIG: Yes. Well, that, too, ought to be, ought to be a crime, but sedition requires the violent overthrow of the government or the violent intent to interfere with that. For the most part, sadly, I think, our founders left responses to political coup kinds of ideas to the political process, to things like the January 6th commission. And the problem now is that one of the two major parties in the United States has bailed completely out of defending congressional prerogatives, out of defending democracy. And when you're in that situation, you could maybe find a criminal charge that's tied to the violence but the real solutions are political, and that's in the hands of the voters and the politicians.

KEILAR: Yes. It does feel like this whole thing has been a stress test of the Constitution. Yet, we talk about some of the strengths, here we are talking about some of the weaknesses as well. Paul Rosenzweig, thank you.

ROSENZWEIG: Thank you very much.

KEILAR: Steve Bannon's attorney, David Schoen, will be joining us live here in the next hour of New Day.

BERMAN: New this morning, Congresswoman Liz Cheney effectively canceled by Wyoming's Republican Party. The state party's central committee voted 31-29 to no longer consider her a member of the party. That news broke in the Casper Star Tribune. This decision, of course, stems from Cheney's efforts to hold Donald Trump accountable for his role in the insurrection on January 6th.

With me now, former Republican Congressman and former Republican Presidential Candidate Joe Walsh.

Cheney banned, so says the Wyoming Central Committee, effectively. Central committee is maybe an apt term here in this case. What does this tell you?

FMR. REP. JOE WALSH (R-IL): Hey John, good to be with you. It should be funny, but it is not funny because it is so damn sad and pathetic. John, look, it's just another reminder that my former political party is a cult. And I know everybody says that, but I want everybody to hear it again. One of America's two major political parties is a cult.

And, John, there is no room in that cult if you do not get down on your knees and pledge allegiance to the cult leader, Donald Trump. And Liz Cheney won't do that, hasn't done that, and because of that, and she may not realize it yet, there's no room in this party for her.

BERMAN: I want people to listen to what you're saying there, because this isn't about some political position on issues. You know, no one questions Liz Cheney's conservative credentials, where she is on the issues. She's arguably or definitely more conservative than Donald Trump, more Republican in old definitional terms than Donald Trump, except now that the Wyoming Republican Party says the most important, defining feature of being a Republican is, what, is fealty to Donald Trump.

WALSH: It's fealty to Trump. Look, John, I'm still the same tea party conservative that you were talking to four, five, six, seven years ago. I no longer have a place in the Republican Party because I will not get down on my knees and worship Donald Trump.

And, John, this is what is so, so dangerous. Listening to Brianna's interview just before, I mean, the cult leader -- remember, we're talking about Donald Trump -- this is the guy that all Republicans want Joe Walsh and Adam Kinzinger and Liz Cheney, all of us get down on our knees and worship him.

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The cult leader plotted a coup against the United States of America. So, not only is the cult leader Donald Trump, he's actually a guy who incited an insurrection. That's how gone the Republican Party is.

BERMAN: Just one last thing. The vote was 31-29 though. That did stick to out to me, that it was basically split there, Joe.

WALSH: I think the 29 were almost embarrassed to even comprehend. Because think about what they were doing, John. They're saying that Liz Cheney can't belong to the party. I mean, that's pretty damn dramatic. I think the more cogent vote will be Liz Cheney's primary challenge next year. And right now, unless things dramatically change, there's really no way Liz Cheney can win a primary in the state of Wyoming.

BERMAN: That 29 though and things that Chris Christie said -- and this is a discussion for another time -- makes me wonder if there is post-Trump curiousness among some of the Republican Party who were, perhaps, blindly loyal to Trump before. We'll see. We'll see if that 29 is 35 in six months or if it is 19. That will tell us something.

Joe Walsh, thank you for coming in. I appreciate it.

WALSH: Thanks, John.

BERMAN: See what happened when the defense called for a mistrial in the case of the three men charged with murder in the death of Ahmaud Arbery.

KEILAR: And new this morning, what Presidents Biden and Xi debated just hours ago in a high-stakes summit.

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