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Bannon's Lawyer Revelations; U.S. Livid after Russia Blows up Satellite; Venerable Seats in the Senate. Aired 8:30-9a ET

Aired November 16, 2021 - 08:30   ET



DAVID SCHOEN, ATTORNEY FOR STEVE BANNON: Americans should stand by and except this kind of politicization of the criminal process. It's not right. It's not fair. You should be outraged by it.

BRIANNA KEILAR, CNN ANCHOR: David, thank you for joining us this morning. David Schoen, appreciate it.

SCHOEN: Yes, ma'am. Thank you. Thank you for having two people from Montgomery, Alabama, in a row.


JOHN BERMAN, CNN ANCHOR: All right, I want to bring in senior legal analyst Elie Honig.

Elie, I want to talk about some of the legal defenses just offered by the counsel right there. But, first, I want to focus on what I thought was actually a pretty major concession by David Schoen, which he said it's possible, he thinks, that there were conversations that Steve Bannon had with people not as part of the executive branch that wouldn't be covered by executive privilege. And we know that Steve Bannon had many of those conversations, correct?

ELIE HONIG, CNN SENIOR LEGAL ANALYST: Yes, John, I think that was a really significant concession. We know for virtual certainty that Steve Bannon was in communication with people who never worked in the executive branch around January 4th and 5th. People like Rudy Giuliani, John Eastman, Bernard Kerik. We know they were all in that Willard War Room together. And there is no legitimate argument, and I think Mr. Schoen just acknowledged this, there is no possible argument that conversations between two people not then in the executive branch would be covered by executive privilege. There would be no more covered by executive privilege than the conversation you and I are having now. Neither of us work for the executive branch. And that's really important because when the day comes when a prosecutor has to stand up in court and make this argument to maybe a jury, maybe a judge, in the criminal case against Steve Bannon, you say right there he had no legitimate basis, he can't rely on his lawyer's advice, you have to have at least a good faith reliance. There is no lawyer in this country who will credibly say that those conversations between two people outside the executive branch can be covered by the privilege. BERMAN: What he said, though, even though he was willing to concede

that -- and, again, I think that's a major concession by the defense of Steve Bannon there. What he said is that Bannon was within his rights not to testify because until it was clarified which discussions exactly Bannon would be asked about, that he wanted to wait and see. That was essentially his case there. Any merit to it?

HONIG: Yes, it's not up to the person who gets a subpoena to just decide, I have some information that may be covered and other that's not, so I'm just going to completely defy you. I'm going to sit this one out. And if you look at the indictment, right up front, the part -- a big part of the reason he's indicted is because he just went into a shell and said, you get nothing and I'm making that decision. That's not the way it works.

And Mr. Schoen talked about depositions. He said to Brianna, well, you've never been in a deposition. The way it works in a deposition is, the person goes in, Steve Bannon in this case, with his lawyer, David Schoen in this case, sitting to his right who will say, you can answer that, that's not privileged. OK, don't answer that one, that is privileged. So that's the way this is supposed to work. And, again, I think DOJ is trying to send a message here, you don't get to make the decision on your own if you get a subpoena. And if you have some information that may be privileged and others that's not privileged, you don't get to just decide and put up a stone wall.

BERMAN: Finally -- or not finally, this is the penultimate question in legal terms, a lot of what he's basing his arguments are, there's very little case law when it comes to executive privilege. A couple Supreme Court cases, and then there's Office of Legal Counsel memos within the Justice Department, which in and of themselves, Elie, aren't law. But he's putting different amounts of weight on different ones at different times.

HONIG: Right. OLC memos are internal memos drafted by these lawyers inside the Justice Department. They're not binding on anybody other than arguably the Justice Department and they're largely theoretical. I think one of the OLC memos that Mr. Schoen -- he wasn't specific as to what he was referring to, but there is a memo that says, in some instances, the privilege can apply to a conversation between a president and someone outside the executive branch.

However, some context is important here. That was from 2007, written by the Bush administration DOJ, when the Bush administration was trying desperately to avoid giving out information on the firing of U.S. attorneys.

Another thing, on the case law, John, you're right, there's very little case law on this. Large -- most of it's from the Nixon era. Now we'll have a whole new bunch of case law from the Trump era.

But Mr. Schoen referenced a Nixon case from 1977, right? And that case does say, in some circumstances, a former president may have an ability to try to invoke the privilege.

However, that case also says very clearly that the incumbent president is in best position to assess and to raise the privilege. That's the important qualifier there.

BERMAN: Before I hand it back to Brianna, who drove this whole ship in a really interesting way, I just want to make one note of something you told me yesterday, Elie, which really jumped out. Bannon, if he's convicted of this, likely will serve one month in prison -- well, he'll have to as a minimum sentence, but then he never has to testify.


BERMAN: There's almost no way for Bannon personally to lose here.


He wins almost no matter what. And I think that was overhanging, Brianna, your entire conversation with Schoen.

HONIG: Yes, John, you're right, the minimum here, if he gets convicted, he has to do one month, but he can't do more than one year. He's not likely to do more -- more than a couple months.

And it was interesting to hear sort of, you know, the lawyer would not commit when Brianna asked him, will your client be fundraising on this? I mean there's a little bit of hypocrisy when one of the arguments that Mr. Schoen's making is, well, this is politicized, they're just doing this for political purposes, they're making statements I don't approve of. But on the flip side he's saying, I can't commit whether my client's going to be fundraising or grandstanding off this. It's a little bit of a hypocrisy there.

KEILAR: But I also think, Elie, like, we should just be clear about what's going on here. This is a stonewalling or a delay to get through this Congress with the hope that Republicans are going to take over. And, you know, even to that point, Steve Bannon's whole theory on this kind of thing is, attack the media and flood the zone with, pardon my French, as he put it, shit. That's what he said. And that's really what we're seeing as his legal defense.

HONIG: Yes. I don't think -- it doesn't really hold any legal water. But I think you're right, Brianna, I think he's trying to drag his feet, run out the clock, hope a new Congress comes in and it gets through and become a political martyr in the process.

BERMAN: He gets what he wants no matter what at this point here. The question is, is there a legal precedent set that will influence other cases going forward, because Steve Bannon's never, ever going to tell Congress anything on this, even if it means spending a month in prison. That's my prediction.

Elie Honig, thank you. Brianna Keilar, well done.

The United States Space Command livid with Russia over a move that created 1,500 pieces of space debris.

KEILAR: And why Nancy Pelosi is warning House members that they may not be leaving Washington over the Thanksgiving holiday.



KEILAR: The U.S. is strongly condemning Russia's anti-satellite test Monday that forced crew members on the International Space Station to scramble into their spacecraft for safety.


NED PRICE, STATE DEPARTMENT SPOKESMAN: The test has so far generated over 1,500 pieces of trackable orbital debris and hundreds of thousands of pieces of smaller orbital debris that now threaten the interests of all nations. In addition, this test will significantly increase the risk to astronauts and cosmonauts on the International Space Station, as well as to other human space flight activities. Russia's dangerous and irresponsible behavior jeopardizes the long- term sustainability of our outer space and clearly demonstrates that Russia's claims of opposing the weaponization of space are disingenuous and hypocritical.


KEILAR: Joining us now, CNN anchor and chief national security correspondent Jim Sciutto. Also we are joined by astrophysicist and professor at George Mason University, Hakeem Oluseyi.

This is an interesting nexus of sort of space, space junk and now foreign policy, right? And I just wonder, what is Russia doing here, Jim? Why would they do this?

JIM SCIUTTO, CNN ANCHOR AND CHIEF NATIONAL SECURITY CORRESPONDENT: Listen, we are deep into the weaponization of space. It's not a future. It's happening now. Russia, China, North Korea and Iran have all tested and deployed space weapons. These range from kill vehicles to surface to air to space missiles, like we saw over the weekend, to lasers. I mean there are lasers in space today that could blind or fry U.S. satellites.

I spoke to the chief of operations for U.S. Space Command in August about this. It's a new reality that the U.S. is already preparing for.

Have a listen.


GEN. JOHN W. RAYMOND, CHIEF OF SPACE OPERATIONS, U.S. SPACE FORCE: What we've seen our competitors do are build capabilities to negate our access to space. And that's something that's concerning to us. That's why the space force is so important. We are the best in the world at space. We want to remain the best in the world in space and move fast and stay ahead of that threat.

SCIUTTO: Who are the biggest competitors in space?

RAYMOND: China and Russia are our two big competitors.


SCIUTTO: He gets at the why there. Why do China and Russia and North Korea and Iran do this to somewhat lesser extent, to negate our access to space because of our military, but also you and I depend on space asset satellites more than you realize every day. We use space, they say, dozens of times before you -- before you have breakfast.

KEILAR: They have astronauts. They have spaceships. They have satellites.

Hakeem, what is the danger to everyone, including the Russians, with this?

HAKEEM OLUSEYI, ASTROPHYSICIST: Yes, this was really irresponsible. So basically what they did is they just created thousands of bullets in low earth orbit, right, that can hit debris, that can hit other debris, create even more space junk, or hit satellites that have, you know, critical function or actually have people on them, like the International Space Station.

So, but one thing, they don't have -- they don't have astronauts. They have cosmonauts.

KEILAR: That's right. OK, thank you -- thank you for the correction. That's true.

SCIUTTO: Cosmonauts are people too.

OLUSEYI: Cosmonauts are people too.

KEILAR: Yes, cosmonauts are people too. OK.

OLUSEYI: But they don't care about them very much, apparently. Yes. Yes.

KEILAR: So -- OK, 1,500, this is what stood out to me, 1,500 trackable pieces and hundreds of thousands of smaller.

OLUSEYI: Yes. Yes.

KEILAR: I mean what type of things will you now be navigating when it comes to space travel?

OLUSEYI: Yes. Well, what we're really concerned about is our assets in space. And so they track these pieces of debris and you get alarms if something is headed in your direction so you can take cover, right? But most of these -- you know, one thing that we learned in school very early is that an object at rest or in motion remains at rest or in motion unless acted on by an outside force. So, when you're in space, the outside forces are incredibly weak. So this means that these things will continue to orbit the earth for a long time unless they are purposefully removed from orbit.

KEILAR: And can they be? Real quick, can they be?

OLUSEYI: Well, there are businesses that are planning to do exactly that, right, clean up space junk. That is an opportunity that's coming. But as we are building this new infrastructure in space, we have been talking about the billionaire space race all summer. But now we have orbital debris, we have Elon Musk's Starlink satellites that are going up there, creating light pollution around the world.


So our orbit, the orbit of earth is only going to get more crowded in the future, right? So we have to mediate this.

SCIUTTO: And the blasts -- the point that stuck home -- that struck home with me when I went to Space Force, this stuff lasts for years.

OLUSEYI: That's right.

SCIUTTO: We're still dealing with the debris from China's very similar test in 2007. And, you know, you sit next to an astrophysicist, so I'm not going to test his -- his knowledge on this, but the other thing that struck me is, these things are moving at -- in excess of 15,000 miles an hour.

OLUSEYI: That's right.

SCIUTTO: So a little nut or a bolt, that's a kill vehicle.


SCIUTTO: It's dangerous.


KEILAR: Yes. It seems like self-sabotage, too, though, and that just doesn't make sense.


KEILAR: Jim, Hakeem, thank you to both of you.

OLUSEYI: Thank you.

KEILAR: A top Democrat just retired from the Senate, so what does that mean for the balance of power in Washington?

BERMAN: And a stunning water rescue caught on camera.


BERMAN: Vermont Democratic Senator Patrick Leahy, the longest serving U.S. senator currently in office, announced he will not seek re- election for a ninth term next year after serving in the chamber since 1975.

Joining us now, Harry Enten, CNN's senior data reporter.

Patrick Leahy in Vermont, the answer to some of the best Senate trivia questions. HARRY ENTEN, CNN SENIOR DATA REPORTER: There's a lot of great Senate

trivia questions.

He is the only ever Democrat ever elected to the United States Senate from Vermont. Remember, Bernie Sanders is actually an independent. And Jim Jeffords wasn't elected as an independent Democrat, he was actually elected as a Republican and switched back.

Look at this, every single senator from Vermont was Republican from 1855 to 1974. But here's the whole thing to keep in mind. Vermont is not a red state. Only Republican has been elected since 2000. Only nine states with a longer streak without a Republican being elected to the Senate.

BERMAN: This is probably the operative important thing here.


BERMAN: Which gets to the next question, what does it mean for control of the Senate in and of itself?

ENTEN: Yes. So, you know, if we look ahead to 2022, right now, obviously, we have a 50/50 Senate with Vice President Harris breaking a tie. Look, there are 34 seats that are up next year. Twenty of those 34 are GOP held. So this actually potentially gives Democrats a larger playing field to pick off seats than Republicans. But as we'll get into, that's not exactly what it is when you actually (INAUDIBLE).


BERMAN: When you really dig into the seats in play here, Harry, though, what does it look like?

ENTEN: Yes, so, look, what are the Dems best pickup opportunities? And you look here. And, basically, these are the five in my opinion. Pennsylvania, Wisconsin, North Carolina, Florida, Ohio. Most of these are actually open seats. The incumbents are not running. We're not sure about Ron Johnson in Wisconsin. Marco Rubio most certainly is running for re-election.

But look at these margins from the presidential election, right, in 2020. These are not exactly very Democratic seats. There are a few basically tossup seats in here, Pennsylvania, Wisconsin, North Carolina and Florida, which were decided by a few points. Even Ohio, though, down here at plus eight, Republican. Again, not a large playing field in terms of the competitive seats that Democrats would want to pick up ground.

Now, flip it over to the GOP potential pickup opportunities. Again, look here, these are not exactly these prime pickup opportunities, Georgia, Arizona, Nevada, New Hampshire, the incumbents are running in all these. Look at the 2020 margins, though. Very, very, very tight, with the lone exception of New Hampshire, where Democrats caught a break last week, where Sununu, the governor, said he wasn't running for re-election. But, again, New Hampshire was actually a pretty close state in 2016. So Republicans do have the seats on the board that they may, in fact, need in order to get to a majority.

BERMAN: What do we know about the Senate in the first midterm of a president's administration?

ENTEN: Yes, so, if you look at midterm elections over the years, right, this is since senators were popularly elected in 20 -- excuse me, 1914, not 2014, 1914, when maybe my grandparents were alive, but I was not. What do we know? We know that the president's party most often loses seats. Nineteen times. Neither party gained seats. That was one time. That was back in 1998. I was alive for that one.

The president's party gained seats seven times. So it's possible that the president's party gains seats, but more often than not the president's party loses seats.

BERMAN: It's not like a never, or almost never what you get in the House.

ENTEN: Right.

BERMAN: On the Senate side, things can get quirky, but what happens if the president's approval rating is low? Which President Biden's is right now.

ENTEN: Yes. So President Biden's approval rating right now stands at 43 percent. So when the president's party doesn't lose seats in a midterm, look at the president's approval rating in most of those years. Four times it was above 50 percent. Joe Biden's is not above 50 percent. That gives you the best chance to pick up seats. Most often -- in fact, least often, excuse me, two times, Trump was below 50, but rarely do you have a president below 50 and then you gain seats in a midterm.

BERMAN: So, Joe Biden needs to get his approval up really to put the Senate within play for Democrats to maintain or make it more certain.


BERMAN: Harry Enten, thank you very much.

ENTEN: Thank you, sir.

KEILAR: And right now across the country, something very important is going on right under your nose. Redistricting that could decide the fate of our politics for the next decade.

John Avlon has a "Reality Check."

JOHN AVLON, CNN SENIOR POLITICAL ANALYST: There are different fronts in the war on democracy. There's the geopolitical front, with autocracies challenging democracy and as Anne Applebaum writes in "The Atlantic," the bad guys are winning there.

There's the disinformation front and the digital realm, eroding our ability to reason together with algorithms that elevate extremism, conspiracy theories over actual facts. Then there's the extreme example of defending our democracy, from the coup attempt Donald Trump tried with the big lie that led to the attack on our Capitol.

Then there's the more sub-rosa, structural stuff, the rules and regulations that attempt to rig the system for partisan gain, aiming to undercut majority rule and real representative democracy.

And that's what's quietly going on in state capitols across the nation. Because we're in the middle of a once in a decade redistricting at the state level, which basically determines the baseline of Congress for the next decade.

But, wait, you say, the midterm elections are a year away. Well, bless your heart, as they say in the south, because professional partisans are busy trying to predetermine congressional election outcomes. It's almost as if they were trying to reduce faith in democracy.

Get this, according to The Cook Political Report, the number of swing seats in Congress fall from 164 in 1997 to just 72 in 2016. And it's about to get much, much worse.

According to "The New York Times" analysis, 12 states that have completed the mapping process, Republicans have added a net five new seats they can safely hold, while Republicans are down one. And Republicans only need to flip five seats to regain control of Congress.

Take a look at North Carolina. The state is virtually even in party registration. Republican state legislature just passed maps giving them at least a 10-4 seat congressional advantage. You look at the maps, you think the state grew more white and more rural, which traditionally means more Republican. Now, that's despite a census showing that North Carolina grew more diverse and less white over the past decade. That's the rigged system of redistricting in action, folks. And that's the story nationally, America is more diverse and more urban, but Republicans are carving up the districts to increase their hold on power.

Take a look at Texas, which gained two seats due to massive growth in urban areas, 95 percent attributed (ph) to people of color. While Trump won 52 percent of the vote there, Republicans would now control 66 percent of the congressional seats.


The number of GOP dominated districts up from 22 to 25, while reducing the number of districts where Hispanics make up the majority, from eight to seven. Counting black districts, from one to nine.

Or look at Ohio for some really lopsided partisan absurdity. Last night, Buckeye Republicans proposed maps that would give them a 13-2 majority, despite Republican registration falling by more than 120,000 over the last four years. That means 1.6 million Democrats will be represented by two congressional seats, while 1.9 million Republicans will divvy up the remaining 13. That's democracy in name only.

Now, I want to be clear, Democrats do this as well. In Illinois, the Democratic state legislature is set to eliminate two Republican congressional seats while adding one Democratic. In Maryland, Democrats are looking to get rid of its sole Republican. In New York, an independent redistricting commission failed to find consensus and so the Democratic state legislator is looking to reduce Republican representation.

But here's the thing, Republicans have complete control over redistricting in 20 states. Democrats in only 10. That gives the party of Trump control over 187 House districts, while Democrats have 75.

This is a partisan arms race. And the will of the people is what suffers. But the fix is in, it's not yet inevitable. There will be lawsuits saying these maps violate the Voting Rights Act. There are also eight states with independent redistricting commissions and even proposals to bring back past remedies, like multimember districts, which Illinois had until 1982.

But make no mistake, the fight is on right now to determine the face of Congress for the next decade. And it's nothing less than an attempt to undercut majority rule and real representative democracy by design.

And that's your "Reality Check."

KEILAR: All right, John Avlon, thank you.

And here is what else to watch today.


ON SCREEN TEXT: Soon, Rittenhouse jury deliberates.

11:15 a.m. ET, Biden departs White House.

2:25 p.m. ET, Biden speaks in New Hampshire.


BERMAN: Water rescue team jumping to action. The incredible video you have to see. We're back in 60 seconds.


BERMAN: Time for "The Good Stuff."

A team of rescue divers in the right place at the right time in Maryland, pulling up to the dock just as a car rolled into the water.












UNIDENTIFIED MALE: Hold on. Hold on. Hold on. Hold on.

UNIDENTIFIED MALE: Go ahead. Now I'm clear.

UNIDENTIFIED MALE: Man, you've got to get your seat belt off and get out of the car (ph).


BERMAN: So, you see right there, they broke the window, helped free the driver. That man was taken to the hospital and at last check he was in stable condition.

KEILAR: That is, like, my worst nightmare right there. I am so glad that he was taken care and it feels like, you know, 20 seconds later this would have been a disaster. But, I don't know, Berman, I think I'm going to go -- I'm going to rush right out and buy one of those little glass breaking things after the show.

BERMAN: But I -- so I didn't even know that was a thing until you said that to me in the break, but my producer right over here was saying that she got one when she got her license, and you're supposed to hold it where?

KEILAR: Glove compartment.

BERMAN: In the back of the passenger side. You're supposed to put it there in case you need it. I never heard of that before.

KEILAR: So I owned one and I lost it. So I'll be getting a new one.

BERMAN: You lost your glass breaking baton?

KEILAR: That's right. I did. I'm getting a new one. I'm getting you one, too, apparently. You've never heard of it. But now I know where to put it.


BERMAN: I kind of feel like there's a story behind the missing glass breaking baton that was supposed to be in the car.

KEILAR: Concerned parent. Concerned parent.