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New York Times Reports, Trump Lawyer Cited Heated Fight Among Justices Over Election; Pence Legal Adviser to Testify of Trump's Plan to Cling to Power; Experts Says, Charging Trump for Fundraising Off Lies Faces High Bar. Aired 7-7:30a ET

Aired June 16, 2022 - 07:00   ET

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

[07:00:00]

BRIANNA KEILAR, CNN ANCHOR: Good morning to viewers here in the U.S. and around the world, it is Thursday, June 16th. I'm Brianna Keilar with John Berman.

And we have several important new developments overnight surrounding the January 6th insurrection. Just hours before the next hearing gets under way today, The New York Times reporting on previously undisclosed emails from Trump Lawyer John Eastman where he claims to be aware of a, quote, heated fight among Supreme Court justices over whether to take up a case involving the 2020 election results.

JOHN BERMAN, CNN ANCHOR: But, really, more than that The Times reports on a response to that email from another pro-Trump lawyer saying, quote, odds of action by the Supreme Court before January 6 will become more favorable if the justices start to fear that there will be wild chaos on January 6th unless they rule by then either way. This was about two weeks before January 6.

The Times says this raises questions about a possible link to the idea of the violence that ultimately took place.

CNN's Katelyn Polantz live in Washington. Katelyn, explain to us about these revelations involved in all of these emails.

KATELYN POLANTZ, CNN SENIOR CRIME AND JUSTICE REPORTER: Hi. So, this new story from The New York Times describes emails between two lawyers who were working with Donald Trump and the Trump campaign after the election. They appear to reveal that one lawyer, John Eastman, he is well connected among conservatives, former Supreme Court clerk, that Eastman had insight into the internal deliberations of the Supreme Court and another lawyer was using that information with him to look at ramping up their legal battle with an expectation of chaos on January 6.

So, in these emails, The New York Times says that Eastman, on Christmas Eve 2020, wrote, so the odds are not based on the legal merits but an assessment of the justices' spines and I understand that there is a heated fight under way. Eastman then says, for those willing to do their duty, that would be on the Supreme Court, we should help them by giving them a Wisconsin cert petition to add into the mix. So, that appears to be Eastman using his familiarity with the high court to plot out what Donald Trump should do to try to overturn the election result.

And then this second lawyer comes in, he is assisting the Trump campaign, too, his name is Kenneth Chesebro, he replies to Eastman that the odds of action before January 6 will become more favorable if the justices start to fear that there will be wild chaos on January 6 unless they rule by then either way.

So, you see there that according to this report, there was discussion about how this effort by Trump to block the election using the courts could be considered, at the same time that they were expecting his supporters to descend on Washington, this potentially intimidating moment, and how those two things, these two parts of the plan were fitting together.

The Times also says that these emails were obtained by the House select committee when they got hundreds of Eastman emails in recent weeks. I should add that CNN has reached out to the House committee, they are not commenting on this report. But, Brianna and John, we do know that today the House's public hearing will be focused on this pressure campaign aimed at the vice president, Mike Pence, and from what the committee has said their findings about Pence are as much about him as they are about what Eastman was trying to do on behalf of Donald Trump. So, we will be hearing more about Eastman today and about his emails.

BERMAN: All right. Katelyn, important reporting, thank you very much.

KEILAR: Let's bring in now our CNN Chief Legal Analyst and former federal prosecutor Jeffrey Toobin.

This raises a lot of questions, Jeffrey, some of which we can't answer yet, but how would Eastman know about these internal deliberations before the Supreme Court or was he bluffing? Where would you start looking to try to get this answer?

JEFFREY TOOBIN, CNN CHIEF LEGAL ANALYST: Well, one thing we know from various reporting, including by CNN, is that Eastman has been in touch with Ginni Thomas, the wife of Clarence Thomas, who was very active in trying to get the result of the election overturned. The Times story does not say, and I want to make that clear, that Ginni Thomas told him about what was going on behind the scenes at the Supreme Court, but it certainly raises that possibility and it certainly cries out for the committee to interview Ginni Thomas.

I mean, one of the things that they have not done so far, very intentionally, is they have not reached out to her. But when you see the scope of her involvement now and this apparent inside information that Eastman has, and maybe he was just blowing smoke, maybe he didn't know really what was going on, but in light of the communication between them, it certainly raises the question of what Ginni Thomas was telling Eastman as they moved this effort forward.

BERMAN: And then, Jeffrey, the other lawyer involved here, the other pro-Trump lawyer, Kenneth Chesebro, talking about the idea, the notion of violence that could happen on January 6th, a week before it does, in a way, discussing the strategic value of that violence. [07:05:14]

What are the implications there?

TOOBIN: You know, this is just very bizarre for me because Ken Chesebro was my law school classmate, someone I have known for a very long time. He was known as the Cheese in law school. And he is someone who has really practiced very much on his own for many years. He worked with Laurence Tribe, the famous liberal Harvard law professor. And so it's surprising to see him involved in this conservative effort.

But, I mean, this is a dark email by one implication. I mean, it certainly suggests that if there is more chaos and more activity and potentially more violence, that may help the Trump effort.

Now, that -- I would hate to think that's what he's saying, but if you read the words of those emails, it certainly -- that email, it suggests that the legal effort and the protest effort and the effort to get inside the Capitol are more connected than we have seen before. Again, it cries out for an interview of Ken Chesebro and John Eastman. John Eastman has been taking the fifth, but, you know, these emails are very suggestive of really a dark effort in many respects.

KEILAR: Yes. Certainly, there was some awareness of the threat that this mob could bring on January 6 and that it was useful. Jeffrey Toobin, thank you so much. Great to have you here.

A CNN exclusive now, a top adviser to former Vice President Mike Pence is going to be testifying before the January 6 committee today as lawmakers focus on how Donald Trump pressured Pence to overturn the 2020 election. This new photo obtained by ABC News shows Pence and his family in hiding after rioters broke into the Capitol on January 6th.

This afternoon, retired Republican Federal Judge J. Michael Luttig is expected to accuse Trump of instigating a war on democracy so he could cling to power. Judge Luttig says, quote, had the vice president of the United States obeyed the president of the United States, America would immediately have been lunged into what would have been tantamount to a revolution within a paralyzing constitutional crisis.

Pamela Brown is following this from Washington and she has more. It is really interesting to hear some of what Luttig is going to say, it's really just a preview of what is to come.

PAMELA BROWN, CNN SENIOR WASHINGTON CORRESPONDENT: It certainly is. This is significant, Brianna. This is a retired Republican federal judge, J. Michael Luttig, and he is a key witness testifying to the committee today because he advised Mike Pence, the former vice president, it would be unconstitutional to overturn the election results.

Our Jamie Gangel obtained a statement Luttig is submitting to the committee. And in it, he paints a clear picture of a constitutional crisis with democracy on the brink, saying, quote, this false and reckless insistence that the former president won the 2020 presidential election has laid waste to Americans' confidence in their national elections. More alarming still is that the former president pledges that his reelection will not be stolen from him next time around and his Republican Party allies and supporters are pledging the same.

And he goes on to say, no American ought to turn away from January 6, 2021 until all of America comes to grips with what befell our country that day and we decide what we want for our democracy from this day forward.

And, Brianna, what makes Luttig's testimony even more compelling here is his stature in Republican circles and his connection to John Eastman, the Trump attorney who pushed that six-point plan for Pence to overturn the election. Eastman was once a clerk for Luttig. And on January 5th, 2021, after Pence's lawyer asked for help, Luttig tweeted out that Pence didn't have the power to overturn the election. Brianna?

KEILAR: Pamela, thank you for that.

BERMAN: All right. Joining me now is CNN Senior Legal Analyst and former state and federal prosecutor Elie Honig.

Elie, I want to talk about what we're going to see in a few hours as this next round of hearings gets under way. They are going to focus on Mike Pence and what he did and didn't do that Donald Trump wanted him to do on January 6. Where does this fit in the larger picture that the committee is trying to paint?

ELIE HONIG, CNN SENIOR LEGAL ANALYST: So, John, this is the last second Hail Mary pass, this is Donald Trump's last desperate effort to hold on to power. Now, it is December 2020, all the lawsuits are over, Donald Trump has lost. All the states have certified their votes. The only thing left to be done is the formal counting of electoral votes in Congress on January 6.

Now, the law tells us that the vice president presides over that and he has two jobs, two jobs, to open the electoral votes and to announce the vote.

[07:10:08]

That's it. It seems straightforward, right?

Enter John Eastman. This is a guy we are going to be hearing an awful lot about today. He is a noted conservative constitutional lawyer. He comes up with this plan that he floats to Donald Trump, he says Mike Pence as V.P. can and should throw out the electoral votes from certain states, and then this is a line from his memo, this is a chilling line, Pence then gavels President Trump as reelected. Imagine, that, Pence bangs his gavel and says, I throw out these votes, Donald Trump is president again.

Donald Trump loves this. He starts pressuring Mike Pence the night before January 6. He says in a rally, I hope Mike Pence comes through for us. Of course, if he doesn't come through, I won't like him as much.

Meanwhile, Mike Pence is consulting with his mentors, his advisers and he writes a letter on the morning of January 6 saying, no can do, it would violate my oath, it would violate the Constitution, I'm not on board for this and we know the rest. 2:24 P.M. the riot is under way, Donald Trump sends this tweet attacking Mike Pence verbally, Mike Pence didn't have the courage to do what should have been done. We've soon the video of rioters reading that tweet out loud and breaking into chants of hang Mike Pence, and we have, of course, seen the indelible image of Mike Pence being hurried out of the chamber. So, that's the basic story we're going to hear today.

BERMAN: With whom are we going to hear this story? Who are the witnesses today?

HONIG: I'm most interested to see the emails. We just saw this blockbuster email that shows really for the first time that there was some connection made in the Trump's team between the possibility of violence on January 6 and some sort of strategic benefit. There's going to be more emails, I want to see those.

We are going to hear from Judge Luttig, a respected conservative judge. Pam just laid out what he will do. We are also going to hear from Greg Jacob.

Now, he was a lawyer to Mike Pence. He got in a wild email back and forth with John Eastman culminating with Greg Jacob writing this, I don't think that a single one of those framers would agree with your position, either. And thanks to your B.S., we are now under siege. He wrote that to John Eastman during the Capitol riot.

We also will not hear from Eric Herschmann but we have seen the video many times over the last couple of days. I think we will see other video clips. He is the person who told John Eastman, you better get a great f'ing criminal defense lawyer.

By the way, on that note, we will not hear from John Eastman because he took the Fifth Amendment. He is allowed to do that. He won't be testifying. We are not going to hear from Mike Pence. The committee never subpoenaed him.

Marc Short told Wolf Blitzer last night that he spoke to the committee for eight hours. He's not going to be testifying. Wolf asked, do you think we will see your videos today, and Short said, I think you probably will.

BERMAN: And, of course, we did see him Wolf yesterday, which was notable. Elie Honig, thank you so much for being with us this morning.

So, the committee calls it a grift but prosecuting the former president for fundraising off election lies, that's a tough criminal case to make. We have new CNN reporting on this coming up.

KEILAR: Plus, we are going to speak live with former Attorney General Alberto Gonzales on all of these new revelations that we're hearing from the January 6 committee and what they know. And another warning sign for Democrats as Republicans flip a House seat in a special election in Texas.

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[07:15:00]

BERMAN: The January 6 committee is making the case that former President Trump misled supporters into donating millions of dollars to a fake election fund, going so far as to call it the big rip-off, but prosecutors looking to take action against Trump in court, they might have a tougher time making the case.

CNN's Kara Scannell has this new reporting. Kara, what have you learned?

KARA SCANNELL, CNN REPORTER: Well, John, it was interesting. As we've talked to a number of former prosecutors and election lawyers who say that, you know, while these allegations are kind of spectacular, you know, the suggestion that all this money was raised off of a lie and off of a fraud, it's really going to depend on the details. All we saw from the committee was a five-minute clip. We haven't seen anything else really underlying that and we don't know what else they have. But one thing that prosecutor if they want to build a case will need and look for are these details.

And within some of these emails that were soliciting the donations, there were fine print disclosures that say said, this money will go to election defense after we raise a certain amount. So, could you say that someone was defrauded by that or should they have known if they had seen that?

The other issue is they want to trace this, you know, higher up to the campaign ultimately to the former president, how do they do that? How can they show what he knew about what was being sent out by people further down the line?

And we've seen the Justice Department in cases that they brought that are these wire fraud cases the conduct is often very brazen. You might remember the We Build the Wall case that was brought against Steve Bannon before he was pardoned, in that, they showed that there were solicitations that said 100 percent of the proceeds would go to the wall and not a penny would go to one of Bannon's co-defendants.

Then what prosecutors showed is that they created shell companies, layers that they were moving the money through to obscure the money movement and that hundreds of thousands of dollars ultimately went to one of Bannon's co-defendants who has pleaded guilty. So, you can see that they usually go with something that's more brazen in conduct.

The other wild card here is the state attorneys general. We have already seen the New York attorney general, Letitia James, who is investigating the Trump Organization, say she is going auto to look into this. There's been a question of whether states can do that. They have these consumer protection laws, but this is involving a federal campaign. Interestingly, there was a judge decision earlier this year where he said that states can, that their consumer protection laws work, and so that's something that's very interesting and could be potentially a game changer here.

BERMAN: This is a really interesting perspective. Thank you so much for laying this out, Kara.

KEILAR: Joining us now is former Attorney General and former White House Counsel to President George W. Bush Alberto Gonzales. He is now dean of Belmont University College of Law.

Judge, it's great to have you here this morning to talk about this. Just on Kara's reporting here --

ALBERTO GONZALES, FORMER ATTORNEY GENERAL: A lot to talk about, isn't there?

KEILAR: So much to talk about today, indeed.

[07:20:00]

Just remind us how high the bar is when we're talking about the possibility of charging former President Trump or his allies for fundraising off of these lies.

GONZALES: Well, as with many of the potential charges against Donald Trump, a lot will depend on whether or not you can prove intent. And so there is a lot coming out of this committee that appears very damaging to Trump, to Trump world, but as to whether or not a successful prosecution can be made is going to depend a lot on the burden -- whether or not the prosecutor can meet the burden of proof.

Obviously, Donald Trump or his allies in a court of law will have the right of cross-examination, will have the right to put up a defense. And so all this is certainly very interesting. Much of it is very alarming. But as to whether or not there's going to be a criminal prosecution in the end for someone like former President Trump, a lot remains to be seen.

The attorney general is going to have a very difficult decision here. He's got a very able team looking at this. Obviously, they're waiting patiently for the January 6 committee to complete its hearings, to complete its work. They've asked for transcripts, for example, from all witnesses. I understand those have not been provided yet, which is understandable since the work of the January 6 committee has not been completed. But all that information is going to go to the top lieutenants of General Garland and they will make a recommendation after some serious discussion with the attorney general and he will make a decision.

Now, I'm sometimes asked, well, you know, what's the role of the White House? What kind of contacts exist between the department and the White House on these kinds of matters? I can only speak to what I think is likely to happen. I can certainly speak to what I think would have happened in the Bush administration. If I'm making a decision like this after listening to all my lieutenants, I make the decision, make a decision as to when I'm going to make an announcement and I inform the deputy attorney general to inform the White House counsel probably just minutes before the announcement.

I don't want there to be any kind of speculation or accusations and, in fact, this decision was politically motivated, that it was driven by the White House. We would have made it completely independently of the White House and informed through the deputy attorney general handwritten communication with the White House counsel, the attorney general is about to make this announcement.

And that's the way that we would have done it. It's very likely that this is the process that will occur with respect to Attorney General Garland. And we will just have to wait and see. Again, everything that's been reported lately from the January 6 committee is extremely interesting, as I said earlier, some of it is extremely alarming.

KEILAR: Well, let's talk about that. What stands out as most damaging to you specifically? I'm curious, are there things -- you mentioned the charges potentially or not that Merrick Garland may pursue. Is there anything that you think is most damaging that he should be investigating perhaps that he hasn't investigated yet?

GONZALES: Well, we don't know what he's investigating, of course, and it may go -- it may go beyond the work of the January 6 committee because the Department of Justice has additional powers that the January 6 committee does not have and, therefore, there may be other things.

But, you know, of course, we're talking about seditious conspiracy, obstruction of an official proceeding, perhaps conspiracy to defraud the United States. So, there are a number of things. And then, of course, there could the potential liability at the state level with respect to Georgia. You've got the local district attorney there looking at whether or not there's an attempt to influence the election outcome there and your earlier speaker spoke about possible investigations and charges in New York, both civilly and criminally. So, there is a lot at stake here.

And so even though the January 6 committee may conclude its work, even though the attorney general may decide ultimately there is not enough -- not enough here, or for credential reasons, he doesn't want to move forward with the prosecution, that's not the end of the story. You will still have state actions in Georgia and New York possibly.

KEILAR: We've learned that Ginni Thomas, who is an advocate, a political advocate, she's also, of course, the wife of Justice Clarence Thomas, she was in touch with John Eastman, who is -- was the architect of Trump's scheme to overturn the 2020 election results. Add that to what we knew before, that she had been in contact with dozens of Arizona legislators urging them to overturn election results in their state. She was also in touch with Trump's then-chief of staff, Mark Meadows.

[07:25:00]

Should the committee interview her?

GONZALES: I can't -- I can't speak for the committee. I suspect the Department of Justice may likely interview -- obviously, that's politically -- there will be repercussions from that kind of action. But on the other hand, I would say the department has an obligation if they believe that there has been wrongdoing, they have an obligation to talk to whoever they think is important in uncovering the truth and developing a case for possible prosecution.

Listen, I have the highest respect for Justice Thomas and his service to this country. One of the things that will be, I think, keyed up or teed up by this recent reporting is whether or not Justice Thomas should recuse himself going forward with respect to any matters that come before the Supreme Court related to the January 6 hearing.

And that's going to be a very difficult decision, I think, by Justice Thomas. I think all judges, not just the Supreme Court justices, but all federal judges, all state judges, have an obligation to take action or not to take action with the goal of promoting confidence in the courts. And, you know, I'm -- I have confidence in Justice Thomas and other justices on the Supreme Court that they will take that obligation, they will consider that obligation very, very carefully. Because, again, right now, according to polling, public confidence in the court is -- you know, is not very high.

So, the notion that perhaps internal deliberations relating to the abortion case, the pending abortion case, with respect to this matter, I think, is extremely troubling. And I know that members of the court are likewise troubled by this because it doesn't inspire confidence in the court, quite frankly. So, we will have to wait and see what happens.

KEILAR: Yes. You are not the only certainly raising those questions. We will have to see if the judge is listening and if he agrees with that.

Alberto Gonzales, great to have you, thank you so much.

GONZALES: Thank you for having me.

KEILAR: The FDA's advisers signing off on COVID vaccines for children younger than five, but why Florida decided to skip its preorder of the vaccines.

BERMAN: And speaking of Florida, quote, I welcome support from African-Americans, that was the Florida governor responding to Elon Musk saying he would back DeSantis for president in 2024. Van Jones joins us live.

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