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Will Supreme Court Take Up Trump's Exec Privilege Case?; Trump Rails Against One-Time Ally Netanyahu; Jussie Smollett Found Guilty of Falsely Reporting Hate Crime; Early Data: Omicron Spreads Fast, But Cases are Mild; Memo: Biden Administration May Have Cut Corners, Putting Minors at Risk. Aired 6-6:30a ET

Aired December 10, 2021 - 06:00   ET

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

JOHN BERMAN, CNN ANCHOR: Good morning to our viewers here in the United States and all around the world. It is Friday. It's December 10. I'm John Berman with Brianna Keilar. Go Army, beat Navy.

[05:59:51]

BRIANNA KEILAR, CNN ANCHOR: Indeed.

BERMAN: This morning, Donald Trump is running out of options. A federal appeals court ruled against the former president in his bid to block the release of his White House records to the January 6th House Committee.

So these records, a whole heap of them that could reveal all kinds of things, could be out very soon. The D.C. Court of Appeals did agree to pause its ruling for two weeks, so Trump can seek an intervention from the U.S. Supreme Court.

KEILAR: And we have some brand-new reporting revealing that Trump and Benjamin Netanyahu are no longer allies. The former president telling a reporter that he no longer speaks with the former Israeli prime minister, adding, "'F' him." Trump goes on to say, "The first person that congratulated Biden was Bibi Netanyahu, the man that I did more for than any other person I dealt with. He has made a terrible mistake."

BERMAN: In the battle against COVID, the FDA and CDC endorsing Pfizer booster shots for 16- and 17-year-olds and adds 2.6 million teenagers to the eligibility list.

Overall, the pace of vaccinations is up. The seven-day average of people getting their first shot is up 39 percent from a month ago, but it is a race against the virus. COVID hospitalizations are now up 40 percent over the past month. Forty percent, mainly hitting Midwestern states, including Michigan and Ohio.

KEILAR: And former "Empire" star Jussie Smollett found guilty on five counts of felony disorderly conduct for making false reports to police.

Smollett claimed that he was the victim of a hate crime in 2019 and prosecutors say that he staged the attack for publicity and the jury agreed. The city of Chicago says it will seek reimbursement from Smollett for the cost of the investigation.

BERMAN: All right. Let's start on the Trump cat that might almost be out of a bag. I'm talking about the Court of Appeals ruling that allows these records to be released. I'm joined by CNN senior legal analyst Elie Honig and former state and federal prosecutor and "EARLY START" anchor and attorney at law, Laura Jarrett.

Elie, this federal appeals court, the D.C. federal appeals court said these records can be released to the January 6th Committee. We're going to pause it for two weeks to have Trump, if he wants to appeal to the Supreme Court, he can. What's going to happen?

ELIE HONIG, CNN SENIOR LEGAL ANALYST: So this ruling is a demolition. A lot of times when you read a Court of Appeals reading, they say, Well, this side argues this; that side argues that; it's close. This, if not that.

This opinion is different. This opinion says, they don't give us anything. Donald Trump has not given us anything to rule in his favor. They called Donald Trump's arguments a grab bag, meaning you've given us nothing. This is not close. You could see this coming a mile away. This is the expected result. Of course, the big question now is does it go to the Supreme Court.

LAURA JARRETT, CNN "EARLY START" ANCHOR: To Elie's point, they went much further than they could, and some of the language is devastating. Not only to the president's bid to try to keep these documents under wraps, but for people like Mark Meadows, like John Eastman, who are trying to dodge the committee's subpoenas, because they're talking about legitimate interests that the committee has. It even being established and potentially coming up with further legislation to prevent another January 6th attack from happening.

And by going through all of that, they're sort of ticking through a lot of the arguments that other people are going to make. It's just not clear to me that the Supreme Court even takes up this case.

I know we're always -- we're sort of on the same page about that, I think. But the court may say, Look, the D.C. Circuit has issued a very reasoned, 68-page opinion here. There is no conflict between the branches of government. There is no conflict between the circuits. We're not taking this up.

BERMAN: Yes. I've always been on the side that I think the Supreme Court will ultimately --

JARRETT: I know.

BERMAN: Because this is actually a constitutional issue that has not been resolved. It probably needs to, going forward. We'll see, within the next two weeks.

I do want to ask about the January 6th Committee. It's not disconnected from this at all. Because they're really trying to portray themselves now as getting a lot done, right? A lot done, very quickly.

Liz Cheney has tweeted on the progress thread, "For those interested, the committee has already met with 300 witnesses. We hear from four more key figures today." That was yesterday. We're conducting multiple depositions. We've got all of this stuff from Mark Meadows.

HONIG: I think Liz Cheney makes a very important point there that we need to keep in mind. We tend to be very focused, fixated on the shiny objects, the controversial figures. The Bannons, the Stones, the Meadows in this case.

But remember, there's so much you can get from the less-known, less- controversial figures. I mean, Marc Short, right, not necessarily a huge name, but it came up this week. He's cooperating. He was basically Mike Pence's counsel, right-hand man, chief of staff. He was there. He was in the room with some of these sort of bold-faced names who are defying.

But if Marc Short was in the room, and he can tell the committee, here's what I saw, that's enough.

As a prosecutor, you don't always get to sit down with the primary target, with the primary wrongdoer wrongdoer. Sometimes you have to build your case by talking to these sort of innocent bystanders, the good-faith people who are willing come forward. And I think she's made clear that they are making progress on that front.

JARRETT: But I do think at some point soon, the committee has to sort of set the table on what the goal is here. They keep talking about the connection to Trump a lot, and they're dancing around it a lot.

But if that falls short, they need to make clear that that's not necessarily a failure. The whole point of this is to sort of set a historical record of what happened, as best as that they can. And that may not mean that the former president is indicted for anything at all.

BERMAN: Look, if they get these records from the archives soon, that's going to totally reframe --

JARRETT: Yes. Yes.

BERMAN: -- their work schedule for the next few months.

Very quickly, the New York state attorney general wants to depose Trump in a civil suit, Elie. This -- this is going to happen.

[06:05:08] HONIG: If it will, it's a ways off. Because Donald Trump is going to fight this. Donald Trump can end this, by the way, if he takes the fifth. Will he? He know how Donald Trump feels about the Fifth, right? Now will he? We know how Donald Trump feels about the Fifth, but this is what the Fifth Amendment is for. We know he's being criminally investigated. Now the civil side says, we want to depose you under oath. If his name is not Donald Trump, you say, "I take the Fifth." That's that. I don't know whether he'll do it. He's going to fight it in court,

though, for sure.

BERMAN: I want to ask about -- I woke up to this news this morning. First of all, you're on the same schedule I am like this, because when when you wake up to something, it's hard, because we get up so damned early.

Benjamin Netanyahu called Joe Biden to congratulate him on his election victory, but like late --

JARRETT: Yes.

BERMAN: Actually, a lot later than a lot of other world leaders did. It was after -- after all the networks awarded -- not awarded but noted that Joe Biden had actually won the election here.

Donald Trump just went off on Bibi Netanyahu in this interview with Barak Ravid, who's an Axios reporter who was reporting on the peace process over the last four years, during the Trump administration.

But this is what Trump told this reporter. Quote, "It was early, OK? Let's put it this way. He greeted him" -- Netanyahu greeted Biden -- "very early, earlier than most world leaders. I've not spoken to him since. 'F' him!" Goes on: "There was no one who did more for Netanyahu than me. There was no one who did for Israel more than I did. And the first person to congratulate Joe Biden was Netanyahu."

JARRETT: He, I guess, violated the cardinal sin in Donald Trump's playbook, which is loyalty. So I guess by a two-week later phone call, by the way, right, as you point out. He wasn't at the first world leaders, so he's not even right on the facts.

But two weeks after everybody has projected Biden as the winner, he makes the -- he makes the sin of congratulating the president-elect.

HONIG: This loyalty thing sometimes works for Donald Trump. I think this is why we've seen Mark Meadows, as we used to say as prosecutor, jump halfway across the ditch. I'm cooperating, I'm cooperating. Whoops, he's not happy. I'm not loyal. Let me try to undo what I've done. And that leads witnesses, potentially important witnesses like Mark Meadows, not to go through with cooperation.

BERMAN: Also, this is -- this is interesting on many different levels. Whatever Trump did for the Middle East, he should have been doing for the Middle East and for the world.

JARRETT: Not to curry favor.

BERMAN: Not to curry favor with one person. This isn't about personal relationships. This is about lively -- you know, lives and peace. And just the idea that Trump thought that Netanyahu owed him something personally here, it's really, really pathological on a certain level.

On that note, on the pathological note, Elie Honig, I want to play something for you. This was last night. This was Purdue, the No. 1- ranked college basketball team in the country. Playing for Rutgers. Well, you played for how many -- four years you played there?

HONIG: I played for four years in the driveway of the house.

BERMAN: OK. This is the end of the game where -- at Rutgers. So let's watch this.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: With 3.4 to go, get it to Harper with 3, with 2, with 1, Harper for the win. Got it!

UNIDENTIFIED MALE: Let's go!

UNIDENTIFIED MALE: Ron Harper Jr. The game winner at the buzzer!

UNIDENTIFIED MALE: Let's go!

UNIDENTIFIED MALE: And Rutgers upsets No. 1 Purdue, 70 TO 69.

UNIDENTIFIED MALE: Let's go!

(END VIDEO CLIP)

BERMAN: The legal significance of what we just witnessed there?

HONIG: The legal significance of that is Jersey is in the house. Oh, my God.

Let me just say this, though. This young man who hit that shot, Ron Harper Jr., last year in the NCAA tournament, he missed a big shot. And he issued a statement. He did not have to do this. It's not his fault he missed a shot, but he said, That's going to haunt me the rest of my life.

Now he hits this shot. So God bless you, Ron Harper. Forget about that miss last year. Now you have this for the rest of your life. Let's go, Rutgers. Jersey is here.

JARRETT: May I just say, I have no dog in this fight. And had totally missed this.

HONIG: You don't win a lot.

JARRETT: But I can confirm Amherst College never had a buzzer beater like that. So there you go.

BERMAN: Elie could have played at Amherst.

Laura, Elie, thank you both for that.

KEILAR: Jussie Smollett's attorney insisting that the actor is 100 percent innocent, says that he'll appeal the guilty verdict on charges that the former "Empire" star staged a hate crime against himself and then lied to police about it. The city of Chicago is suing Smollett for the cost of its police investigation.

CNN's Sara Sidner is live for us in Chicago. And that cost could be high.

SARA SIDNER, CNN CORRESPONDENT: That's right, $130,000 is what the city reiterated that it is still going after Jussie Smollett for, what they said was the wasted time of police, the cost to the city. That's still happening.

And he found that out just after he was found guilty of five of six felony counts of disorderly conduct. Now, all of those counts are for lying to police in this investigation, back in January of 2019, when he said he was attacked, had racial and homophobic slurs said to him by two men, who he claimed had MAGA hats and who were potentially white.

[06:10:13]

And it turned out, and the jury believed this, that two brothers, the Osundairo brothers, were actually hired by him, given money to carry out this attack where surveillance cameras could see it so that this could end up in the media, so he'd get more media attention.

Those two brothers said they were vindicated because of this jury's decision of guilt for Jussie Smollett. The attorneys, one of them saying, the jury got it right. They believed that Smollett lied, and though his defense attorney was very clear that they are going to appeal, he still believes Jussie Smollett is innocent.

(BEGIN VIDEO CLIP)

DANIEL WEBB, SPECIAL PROSECUTOR: With the resounding verdict we just received from this jury, after one day of deliberations, in which they found Mr. Smollett guilty of virtually all charges of doing exactly what we said he did, of reporting a fake crime to the Scarborough Police Department as a real crime, that verdict was a resounding message by the jury that, in fact, Mr. Smollett did exactly what we said he did.

NENYE UCHE, JUSSIE SMOLLETT'S ATTORNEY: We're obviously very disappointed. We, obviously, respectfully disagree with the jury's verdict. The verdict is inconsistent. And you cannot say Jussie's lying and Jussie's not lying for the same exact incident. So we feel 100 percent confident that this case will be won on appeal.

(END VIDEO CLIP)

SIDNER: And so, you hear him saying that we may not be done with this case, that we are going to appeal this case.

You have to remember, though, that the judge is going to take into account that, if the jury says, Look, he lied about these five of six times that he's reported this to police, it means that he also lied on the stand. And that will be taken into account by the judge in sentencing -- Brianna.

KEILAR: Yes. Very good point. Sara Sidner, thank you for that.

COVID cases in southern Africa seeing a 140 percent increase in the last week alone, but is this new Omicron variant actually more dangerous or not? We'll have the doctor often referred to as the Fauci of South Africa joining us next.

BERMAN: Plus, a newly-released memo accuses the Biden administration of cutting corners and putting migrant children at risk along the border. The concerning new CNN report.

And Chris Christie letting it rip on Mark Meadows for putting him in a room with Trump after he knew that he had tested positive for COVID.

(BEGIN VIDEO CLIP)

CHRIS CHRISTIE, FORMER GOVERNOR OF NEW JERSEY: He saved it for a book. He didn't tell us -- I went into the hospital, in the intensive care unit. He didn't call and tell me.

(END VIDEO CLIP)

(COMMERCIAL BREAK)

[06:17:09]

KEILAR: The Omicron variant has now been identified in at least 25 states here in the U.S., and it's continuing to spread across parts of Africa.

Weekly COVID cases in southern Africa jumped 140 percent last week, mainly because of an uptick in South Africa.

And joining us now to talk about this is epidemiologist who -- the epidemiologist from South Africa who has helped lead his country's COVID response, Professor Salim Abdool Karim.

Professor, thank you so much. You know, we keep checking in with you. We last spoke with you early last week. How has the variant been behaving? Any new observations since then?

PROFESSOR SALIM ABDOOL KARIM, EPIDEMIOLOGIST: It's very nice to be with you, Brianna. We've actually had several new studies that have been released that are now shedding light on this new variant.

The first is, in terms of transmissibility, we're now seeing clearer evidence. We have about two weeks of data now that show that its doubling time is faster than what we saw with the Delta variant or the Beta variant.

So there's now stronger evidence that it's more highly transmissible. It's not definitive, but it's certainly a strong indication. And certainly from the clinical standpoint, the national database of admissions is now confirming we're now seeing new data emerging that confirms what we initially saw, that the cases tend on the whole to be milder, with fewer requiring oxygenation.

So it's interesting that it's emerging, it's confirming what we know, and certainly, no red flags at this stage. KEILAR: Look, that's the expectation of a virus over time. It becomes

more transmissible. And then it becomes less deadly. To that end, have there been any deaths from Omicron so far?

KARIM: Yes, so we don't know if the deaths can be specifically ascribed to Omicron, because we can't link the two databases. But what we do know at this stage is that we have very low deaths in terms of reported deaths.

In fact, they are in the single digits for several days, even though the cases are now in the thousands. But there's often a lag between when the deaths occur and when we see the cases.

So we'll have to just see over the next two weeks, what happens to deaths, and we'll have a better idea then as to how many of them are due to Omicron.

But certainly, in terms of severe cases, which is -- which includes death, we are seeing a much lower proportion. To give you some identity, to quantify it, in the past waves, due to Beta and Delta, two out of every three patients admitted to our hospitals required oxygenation and/or ventilation. In the current wave, due to Omicron, it's only one out of four.

KEILAR: Yes, that's -- that's very significant. Given what we know now, and certainly, we have more to know, for sure, as you point out, but given what we do know, do you think the U.S. and other countries should lift their travel bans?

KARIM: Well, I think it should never have been imposed in the first place. You know, we know that these bans have very little, if any, benefit. And I would have hoped that by now, the U.S. would have reconsidered its position, because there's nothing to be gained.

I mean, if anything, this virus is now spreading endemically in many countries. So if you're going to impose a travel ban against countries where this virus is spreading, you would need to do it with many, many countries right now, over 50, my last count.

KEILAR: And 25 states, so half of the states in the U.S. are seeing Omicron right now. You're seeing this 140 percent surge in southern Africa really ticking up because of South Africa, specifically. Is that what you're expecting the virus to do in other countries like the U.S., once Omicron takes hold?

KARIM: Yes, I think for me, the critical issue was whether its transmissibility advantage could exceed Delta. Because -- and that's not clear that's the case right now. The evidence is appointing in that direction, but it's not definitive.

But if it can spread faster than Delta, transmissibility is going to be the key factor that will determine whether it will displace Delta. And if it's going to displace Delta, that means it's going to spread throughout the world, because Delta is now the globally dominant variant. And if that happens, and given the rate at which it spreads, we're looking at this occurring within the next few weeks to months. KEILAR: Yes. And that's what we'll be looking for. Professor, as

always, thank you so much for letting us know what you're seeing there on the ground. Professor Salim Abdool Karim, appreciate it.

KARIM: Pleasure.

KEILAR: We do have some new questions this morning about security at the U.S. Capitol after a staff member managed to enter the complex with a gun.

BERMAN: And did the Biden administration cut corners and put the safety of minors at risk along the U.S./Mexico border?

(COMMERCIAL BREAK)

[06:21:28]

KEILAR: In a memo just obtained by CNN, ten federal field supervisors accused the Biden administration of cutting corners and putting the well-being of minors at risk in their scramble to deal with an overflow of unaccompanied migrant children at the U.S./Mexico border over the spring and summer.

CNN's Priscilla Alvarez is joining us now with her reporting. Priscilla, what have you found?

PRISCILLA ALVAREZ, CNN CORRESPONDENT: We've recently talked about attorneys and whistle-blower complaints that shed some light on the poor conditions for children, but we're now learning that internally, key officials were raising red flags a about the care of minors.

They said the Biden administration was limiting, quote, even the most basic safety procedures that emergency facilities set up to temporarily care for children were run like, quote, "disaster camps."

This is a memo that was sent to leadership of a federal agency charged with the care of migrant children in July. And if you recall, at that point, tens of thousands of migrant children had crossed the U.S./Mexico border, overwhelming the facilities and catching the administration flat-footed in its early days.

And I've spoken to officials who have said they've felt the political pressure from the White House, and that agency staff in this memo conveyed growing concern and frustration over the care of minors, citing guidance that was released to expedite release of children to parents or legal guardians, which they say eliminated safeguards to make sure they were going to the best caretakers.

They again addressed those emergency intake sites, saying that they contributed to the deterioration of the mental health and well-being of children, with one official saying that one of those sites was not much better than a Border Patrol facility.

Now, the White House and the Health and Human Services Department has said they take the responsibility of children seriously, an HHS spokesperson saying specifically that they address concerns without delay about the child's safety and welfare, but concerns still remain among officials, who wonder whether this administration or future administrations will be better prepared in the event that we see another surge of minors.

KEILAR: You're saying safety protocols, some were suspended, and this includes safety protocols about who would take possession of the children. Is that right?

ALVAREZ: Agency staff are worried or addressed in this letter concerns about exactly that. Are we releasing children too quickly? That was their primary concern, and are we taking the best care of them while they're in our custody?

KEILAR: Yes. Certainly, corners that cannot cut. Priscilla, thank you for that reporting.

BERMAN: It's really happening (ph).

All right. Security at the U.S. Capitol under scrutiny this morning after an incident yesterday when a staff member managed to enter the Capitol complex with a handgun in his gym bag.

It took four minutes -- four minutes -- before the Capitol Police tracked him down and arrested him, after noticing the gun on an X-ray screen. Apparently, the aide forgot the gun was in the bag.

Joining me now CNN national security analyst, Juliette Kayyem.

There are two different things here that I think really need to be looked into. It went through an x-ray machine, but they didn't notice it at first. It took them a bit to identify there was a gun in the picture?

JULIETTE KAYYEM, CNN NATIONAL SECURITY ANALYST: So, yes, and that's one flaw of what happened yesterday. So is it that they knew him and that they therefore weren't looking at the X-ray carefully, and then they went back and someone, a second review, someone saw it?

Because these X-rays are not self-identified. They don't say, here's a gun. You actually -- this is human error. This is basic human error. That's almost all security is based on some sort of human judgment, and this is what happened in this case. So Capitol Police are going to have to go back. Then once they identify it, then they have a four- minute gap.

BERMAN: That's the second thing here. So four minutes -- when you say, it's like, four minutes, that's quick. That's an eternity.

KAYYEM: If you're dangerous, yes.

BERMAN: Think of all the things that could happen with a gun in four minutes if -- you know, if you have someone who wants to use it for harm.

KAYYEM: That's a very long time. I mean, this is, you know -- this is, you know, one of those instances where you sort of knock on glass and say, you know, thank goodness.