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New Day

Hearing Raises Questions About Legal Exposure for Trump, Allies; Violent Mob Came Within 40 Feet of Pence During Capitol Attack; Eastman, Coup Memo Author, Sought Pardon After Attack. Aired 7-7:30a ET

Aired June 17, 2022 - 07:00   ET

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

COY WIRE, CNN SPORTS CORRESPONDENT: Fourth for the Curry/Klay Thompson/Draymond Green trio.

[07:00:03]

John, you must still be proud though. What a turnaround from 11th in the Eastern Conference midway through this season. So, this, you should be proud for sure.

JOHN BERMAN, CNN ANCHOR: That's what I'm clinging to, although it's not helping that much. Coy, thank you very much. Stop smirking at me.

New Day continues right now.

So, good morning to our viewers here in the United States and all around the world, it is Friday, June 17th. I'm John Berman with Brianna Keilar.

We have new evidence that revealed the Donald Trump and his allies knew their scheme to overturn the 2020 election was unconstitutional and illegal but continued with it anyway. And that's raising new questions this morning about the former president's legal exposure. Video we are seeing for the first time shows Mike Pence, the former vice president, sheltering in a secure location for nearly five hours, as rioters overwhelm the Capitol, looking to hang him. We were told they came within 40 feet of the vice president's evacuation route.

We're also learning new details about a heated phone call between Trump and Pence on the morning of January 6th. This is what witnesses, including Ivanka Trump, said about the former president's demeanor on that call.

(BEGIN VIDEO CLIP)

NICHOLAS LUNA, FORMER TRUMP SPECIAL ASSISTANT (voice over): Yes. I remember hearing the word, wimp. Either he called him a wimp. I don't remember if he said you are a wimp. You'll be a wimp.

IVANKA TRUMP, DAUGHTER OF FORMER PRESIDENT TRUMP: It was a different tone than I had heard him take with the vice president before.

(END VIDEO CLIP) BRIANNA KEILAR, CNN ANCHOR: A major new piece of evidence revealed by the committee, that is John Eastman, the conservative lawyer, central to the plans to overturn the election results, asked for a pardon in the days after January 6th.

And new this morning, The New York Times has obtained a copy of a letter sent by the House select committee to Ginni Thomas, the wife of Supreme Court Justice Clarence Thomas. They want to speak to her here in a couple of weeks. And the panel has email correspondence between her and Eastman. Thomas says that she is looking forward to appearing before the panel to clear up any misconceptions.

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

Elie, I'm curious, as we look at this, what stood out to you? What are the pieces of evidence we learned for the first time yesterday that might put things in a different perspective today?

ELIE HONIG, CNN SENIOR LEGAL ANALYST: Well, John, it was a very, very bad day for this Trump attorney, John Eastman. We learned stunning new revelation back seat what John Eastman did and what John Eastman knew. Let's take a look.

(BEGIN VIDEO CLIP)

GREG JACOB, FORMER COUNSEL TO VICE PRESIDENT MIKE PENCE: I raised the problem that both of Mr. Eastman's proposals would violate several provisions of the Electoral Count Act. Mr. Eastman acknowledged that that was the case. Wouldn't we lose 9-0 in the Supreme Court?

And, again, he initially started, well, maybe you would only lose 7-2 but, ultimately, acknowledged that, no, we would lose 9-0.

REP. PETE AGUILAR (D-CA): And Dr. Eastman emailed Rudy Giuliani and requested that he be included on a list of potential recipients of a presidential pardon.

(END VIDEO CLIP)

HONIG: Wow. I mean, that was the revelation of the day. John Eastman asked for a pardon. He is really emerging as a villain in this story. When Donald Trump was down to the last quiver in his bow, he turned to John Eastman, who became the one and seemingly the only attorney in the entire United States who wanted to espouse the theory that, yes, Mike Pence has the authority to throw these votes out.

The committee proved two important things about that. First of all, everybody else believed that theory was wrong. And second of all, Eastman himself recognized that that theory was wrong as a matter of law. But why does that matter? If you are thinking about does Eastman have potential criminal liability here, you would argue he made an argument that he knew was wrong and he did it to promote a larger conspiracy to obstruct the counting of votes. He has got some potential criminal issues, as he recognizes. He took the fifth and asked for a pardon BERMAN: We heard from former White House Attorney Eric Herschmann

about conversations he had with Eastman. Let's watch.

(BEGIN VIDEO CLIP)

ERIC HERSCHMANN, FORMER TRUMP WHITE HOUSE LAWYER: You're saying that you believe the vice president acting as president of the Senate can be the sole decision maker as to, under your theory, who becomes the next president of the United States? And you said yes. And I said, are you out of your f'ing mind? You're going to cause riots on the streets. And he said words to the effect of, there's been violence in the history of our country, Eric, to protect the democracy or protect the republic.

(END VIDEO CLIP)

HONIG: We're starting more and more now to see connections between the scheming, the plotting, the legal theories on the one side and violence on the other. We didn't know that before this committee hearings start.

[07:05:00]

But now we've seen an email within the Trump legal team saying, hey, if violence breaks out, that may help our chances in front of the Supreme Court. And now Herschmann is telling us that the lawyers recognized that if they went down this path, there could be violence, and Eastman's response was, so be it.

So, that is a really important connection. And throughout the rest of these hearings, I'm going to look to see if they make similar connections.

BERMAN: We also get testimony from White House insiders about what they thought of how the president was reacting in real-time to what was happening on Capitol Hill. Let's watch.

(BEGIN VIDEO CLIP)

SARAH MATTHEWS, FORMER TRUMPWHITE HOUSE PRESS AIDE: We had all talked about at that point about how it was bad and the, you know, situation was getting out of hand.

We thought that the president needed to tweet something and tweet something immediately.

Then I remember getting a notification on my phone.

That tweet, the Mike Pence tweet was sent out. I remember us saying that that was the last thing that needed to be tweeted at that moment. The situation was already bad. And so it felt like he was pouring gasoline on the fire.

(END VIDEO CLIP)

HONIG: So, this is a fascinating look inside the White House and a preview, I think, of what we are going to see in future hearings. These are White House staffers, not big names, mid-level staffers, but they were there. And they say there came this moment where we realized, oh, my goodness, Donald Trump has to do something to calm things down. And what does he do? The exact opposite.

And, John, there is this phrase that's taking hold, dereliction of duty, which suggests that during those key three hours, Donald Trump did nothing. I think we are going to see it's worse than that. He poured gasoline on the fire.

BERMAN: I guess the 187 missing minutes, we will learn more about that in the coming days. Elie Honig, thank you so much.

HONIG: Thanks, John.

KEILAR: And joining us now to discuss all of this is CNN Chief Legal Analyst Jeffre Toobin and Daniel Goldman, former federal prosecutor. He helped lead the first House impeachment inquiry into former President Trump. He is now running for Congress in New York.

This was pretty fascinating. We learned a lot yesterday. And even Eastman believes or has reason to believe that Eastman is in legal jeopardy here, obviously very concerned about it. The question becomes, though, does that translate to Donald Trump? Is he in legal jeopardy?

JEFFREY TOOBIN, CNN CHIEF LEGAL ANALYST: He is more than he was 24 hours ago. I don't think Trump would ever be prosecuted for putting forth a bad legal theory even if he knew it was a bad legal theory. He has the right, and he was being advised by lawyers, even if they were bad lawyers, to do what he did. However, if he was inciting violence intentionally, that is a potential legal problem for Trump.

And if you look at the tweet at 2:24, the anti-Mike Pence tweet, that is a really dark moment because that's after the junior White House aides go to him and say, look, you know, there is violence happening there. And his response is to send that tweet at 2:24, which incites even more violence. And there's video of the rioters reading the tweet. That's a potential problem.

Now, that alone isn't going to get Donald Trump indicted, but that incitement of violence is a legal risk for him.

BERMAN: Daniel, three data points on Eastman. Number one, he talked to Mike Pence's office and asked him to throw out the Electoral College results even after he had acknowledged that was unconstitutional. Data point number two, he asked for them to do it again or basically pause the electoral count even after the insurrection. After the riot, he went back and said, you know what, you can still do this. And data point number three, he asked for a pardon. What does all that tell you?

DANIEL GOLDMAN, FORMER FEDERAL PROSECUTOR: Well, it tells me that John Eastman has a lot of legal jeopardy. And then he took the fifth when he was brought before the select committee. So, he knows it. He, at some point, transitioned from giving legal advice to Donald Trump, which Donald Trump wanted to hear, and he knew it, to being a potential co-conspirator in a conspiracy. Because once he starts giving recommendations, suggestions, encouragement for doing something that he knows to be illegal, he's not giving legal advice anymore. He is actually participating in a scheme.

And what I'm very interested about and what Jeffrey is talking about is, you know, as a prosecutor, you look at this. And if John Eastman does have legal jeopardy, John Eastman say prime target for cooperation against Donald Trump. Because if you would -- as a prosecutor, you would look at John Eastman and you would approach him and you would say, you're in deep doo-doo, buddy, do you want to get prosecuted or do you want to cooperate?

And Judge Carter out in California has already said, based on his reading of the evidence, that there is a preponderance of the evidence, not the same as a criminal standard, but that there is enough evidence, more likely than not, that Eastman and Trump conspired together, and that's Eastman's emails had to be turned over.

[07:10:00]

That's why we know about the Ginni Thomas and the Rudy Giuliani and the pardon emails, is because the judge made that determination.

So, I absolutely think Eastman has criminal jeopardy and it will be very interesting to see if the Department of Justice starts to turn the screws on him to see if he will flip on Donald Trump.

KEILAR: Do you see that happening, Jeffrey?

TOOBIN: It's a remote chance. But, certainly, what Dan is saying is that's how prosecutors think. I mean, you move up the chain. And Donald Trump is a lot higher up the chain than John Eastman is. And if you believe that they were involved not just in trying to overturn the election but inciting violence, that to me is the core of any potential criminal case.

And I think as the hearings continue next week, what the focus is going to be, appropriately, is we know about the riots, and we know about the Oath Keepers and everybody who was assaulting the Capitol. What, if anything, was the connection between the people in the White House and the rioters? That's the core of the potential liability that Eastman and potentially Trump have.

GOLDMAN: So, I take a slightly different view of it. I think that's right. I think you would have to make more of a connection if you're going to charge obstructing Congress essentially on the counting of the votes.

I think the easier charge, though not necessarily in terms of a prosecution, but the more likely charge against Donald Trump is not necessarily narrowly related to January 6th but is the broader conspiracy to overturn the election. Because you don't have to show that same -- you wouldn't need to show that same nexus between Trump's actions and the violence and the insurrection and the invasion of the Capitol on January 6th, you could just basically broaden it out and say he schemed with others to try to overturn the election, which, by the way, Bob Mueller charged the two groups of Russians with that exact same charge. So, it's certainly within recent precedent.

TOOBIN: As a technical legal matter, I think you're right. I just think as a matter of prosecutorial discretion, you can't charge the president of the United States with trying to overturn an election where he is acting in public, where he has a constitutional authority to tell Mike Pence what to do. I just don't think any prosecutor would and, frankly, should do that.

However, if you can prove that Donald Trump is inciting violence, is a direct threat to the lives of all the people, all the cops, Pence himself, that's a criminal case. I don't think that that case you're describing, while may be legally sufficient, is one prosecutors would ever bring.

GOLDMAN: You don't think that you should charge someone with trying to use his public authority to try to overturn an election?

TOOBIN: No. No, I don't. I mean, overturn -- it means using legal arguments. I just don't think --

GOLDMAN: That he knew were false?

TOOBIN: Well, that has not been proven, I mean, whether he knew they were false or not.

GOLDMAN: Last week, the entire second hearing was how he knew that the big lie was a lie.

TOOBIN: He was told that but he was also be told by John Eastman and Rudy Giuliani, you have good arguments, go make them. I mean, they may be crazy, but, I mean, he was hearing those arguments and they are real lawyers. So, we need more facts.

GOLDMAN: Giuliani is no longer --

BERMAN: But this gets to the president's state of mind. I mean, you seem to disagree on this. I don't think there's any disagreement that the committee is leaning into this a lot. A lot of their focus is on the president was told this was unconstitutional.

TOOBIN: And that's exactly what they should be doing. I mean, we can have these interesting discussions about what's a good case to bring. But mostly what we need are facts, like what happened. We still don't know exactly what happened. And mostly what we don't know is what was Donald Trump's state of mind? Was he really encouraging violence? You know, what were his conversations?

There was an illusion early in the hearing to Trump saying, hang Mike Pence, that's a good idea, he deserves it. But we only heard that secondhand. Let's hear the evidence of what he said and to whom he said it and how seriously he said it. All of that is important to know. The facts are much more important than the legal theories at this point.

KEILAR: What do you think?

GOLDMAN: Well, I do think that that is true. I don't think we're ever going to get any evidence saying Donald Trump said to someone, I want Mike Pence to be hung or I want Mike Pence to be punished, or I want to overturn the election. And so prosecutors don't get that kind of evidence, particularly for someone like Donald Trump, who has acted like a mob boss for his entire life, where he is very clever and cagey and gives signals but not the overt words.

[07:15:08]

This is why what you have to do is look at his past and his history. And all of the times that he would make some somewhat veiled threat that were then perceived by his supporters as an order to do violence.

And so as a prosecutor, you would start to build all those times to show that he had to know that when he wrote that tweet at 2:24, it was going to elicit the exact reaction that it did. It's hard but that's what you would have to do as a prosecutor.

BERMAN: We've got to let you go, but I have to get your take something on, Daniel, because you have been on both sides of this, the DOJ and inside the committee work. DOJ is mad at the committee for not turning over its transcripts that it has. It wants all these transcripts now. And the committee is saying, yes, we'll get them to you but not now. We're doing other things with them. Why wait? If what the committee is trying to do potentially is to get a prosecution here, why wait?

GOLDMAN: Because DOJ waited for so long. And DOJ was so slow in getting into this investigation. And they decided to ask the committee a month before their big reveal in these public hearings. And they will get them. I don't think there's any question that they ultimately will turn these things over. But the committee wanted to, you know, have its moment and it has put a tremendous amount of work into it.

And what I would expect to see more of is what the Judge Luttig ended yesterday with, which is that we can focus on the past, on January 6th, but this is still very much an ongoing threat. Our democracy is in peril right now. And I thought Judge Luttig was very good about the future concerns and threats beyond any prosecution for what happened in 2020.

BERMAN: Daniel Goldman, Jeffrey Toobin, thank you both for being with us.

KEILAR: And joining us now, CNN Political Correspondent and The New York Times Senior Political Correspondent Maggie Haberman.

Maggie, first, I want to get your perspective on the phone call. Because I think we got very interesting details about this yesterday. The phone call between President Trump and Mike Pence, it turned out there was a huge audience in the oval office for this thing and different people testified that he called Pence the P word. He called him a wimp. He said, I made a mistake by picking you as my running mate four or five years ago. What did you think about that call but also what does it mean?

MAGGIE HABERMAN, CNN POLITICAL ANALYST: So, a couple of things, Brianna. Number one, I think it's striking how much of the real-time reporting turned out to be true because you guys and we reported pieces of this as this was happening. We knew this was an important call but we didn't know in detail exactly how it went down and how people were perceiving it, number one.

Number two, this is what took place at 11:20 in the morning. And, remember, Mike Pence goes to Congress at 1:00 P.M. So, this is the final conversation between these two men as Donald Trump is realizing again that his pressure campaign is not working, or at least should have realized, because Pence is saying no over and over.

This conversation begins on Pence's end. He steps out of a room with his aides to take the call. Trump is surrounded by family members and a couple of aides who don't really pay too much attention to it at first because they thought this was just some normal phone call until it becomes clear from Trump's demeanor and what he is saying this is something different and then they described what you just said.

BERMAN: So, Maggie, there's so much that came out yesterday that some of it is stuff we heard in reporting, other is this new detail and new color just about exactly how 100 percent opposite what Donald Trump was saying publicly was with what Mike Pence and his team were saying behind closed doors. I just am curious as to what the former president thinks about all of this being called out as a liar in these hearings on national television.

HABERMAN: He's not enjoying the hearings, as I understand it, John. I think he is frankly used to people saying that he lies. This has happened for a very long time. But watching the hearings, I think, has been difficult. I think seeing his family involved has been difficult. We certainly know that because he put out a statement distancing his daughter, Ivanka Trump, from the events of that day and around that period of time and claiming she was, quote/unquote, checked out.

But I think that people around him are in various degrees of telling themselves, these hearings aren't breaking through, our voters don't care, the public doesn't care, and then others recognizing this is just not a great fact set.

KEILAR: What did you think about some of the facts we learned around the tweet that he sent out about Pence, including that a White House communications aide -- it was very obvious to them. They were watching what was happening at the Capitol and she said that it was like pouring gasoline on the fire. What did you think of that?

HABERMAN: That, Brianna, was some of the most striking testimony that I think we heard, because it really went to -- again, you guys talked about this a little earlier in the show.

[07:20:00]

But one of the sort of black holes is what was happening in the White House during that period of time, what Donald Trump was doing, what aides were saying to one another. We're going to hear a lot more about, I think, that next week and the week after.

But what you heard from Sarah Matthews, this former press aide, was they all knew this was problematic, or at least many of them did. They realized that things were spiraling out of control. And so when Trump sends that tweet which is attacking the vice president, whose life is being threatened in that moment, that it was spiraling out of control quickly and, as she said, pouring gasoline on a fire, it speaks to what they were aware of. It makes it harder to suggest that they didn't realize what was happening in real-time.

KEILAR: Yes. Maybe they didn't know, I think we have wondered at times. Were they fully aware of all that they were dealing with? They were. That's become very clear from this testimony.

Maggie, great to see you. Thank you for being with us this morning.

HABERMAN: Thank you.

KEILAR: The nation has never experienced anything quite like this, the January 6th committee hearings. And it's American history that is framing the narrative. We have John Avlon with a Reality Check.

Plus, mortgage rates skyrocketing, posting their biggest weekly jump in more than three decades. So, we are going to talk about how the hike will impact you.

BERMAN: And a third American fighter missing in Ukraine as new photos emerge of two other Americans apparently captured by the Russians.

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KEILAR: Insider testimony on Capitol Hill revealing new details about President Trump's unprecedented pressure campaign to get former Vice President Mike Pence to stop the 2020 election certification.

John Avlon with our Reality Check.

JOHN AVLON, CNN SENIOR POLITICAL ANALYST: I like to say that his politics is history in the present tense, but that doesn't begin to do justice to the gravity of history hanging around the Jan. 6 hearings.

Take a step back, right, an American president tried to overturn an election with actions he was told would be illegal on the basis of what he knew to be a lie. A partisan mob's attack on the Capitol was designed to disrupt the constitutional counting of electoral votes, threatening to kill the vice president in the process.

There's just nothing like this in our history. But despite the fact that it's unprecedented, we saw history come up again and again yesterday in the hearings, because history is all we've got. It helps us determine what's normal and what's not

The peaceful transfer of power is a tradition given to us by George Washington, John Adams and Thomas Jefferson. It's a sacred trust. And people who care about our country and the Constitution know that. Mike Pence got it. Donald Trump didn't.

(BEGIN VIDEO CLIP)

JACOB: No vice president in 230 years of history had ever claimed to have that kind of authority, hadn't claimed authority to reject electoral votes, had not claimed authority to return electoral votes back to the states in the entire history of the United States, not once had a joint session ever returned electoral votes back to the states to be counted.

(END VIDEO CLIP)

AVLON: As U.S. District Judge David Carter wrote back in March, this was always a coup in search of a legal theory. Even the Trump lawyer who pushed this seditious scheme, John Eastman, admitted it was illegal and unconstitutional, and requested a preemptive presidential pardon.

On the history front, there is talk of the 1876 election, a popular vote versus electoral vote split, the deadlock with alternate slates of electors and with a corrupt bargaining effectively ending reconstruction in exchange for a term in the White House.

Now, rarely is this invoked as a positive example of anything? Trump lawyers thought they could exploit a loophole in the subsequent Electoral Count Act to stay in power, which is nonsense but should still provide some urgency for bipartisan talks to reform that act at the very least.

But perhaps the ultimate expression of how Jan. 6th breaks the historic mold is that we have broken our addiction to instinctive parallels to Watergate, despite this week marking the 50th anniversary of the break-in that started the investigation, because Watergate's crime and cover-up seems small by comparison. Trump has only succeeded in making Nixon look great again.

Ultimately, Senate Republicans stood up to Nixon, told him it was time to go. But this time, there's no sign of such spine. No wonder, retired Conservative Judge Michael Luttig said that Donald Trump and his allies and supporters are a clear and present danger to American democracy. And no wonder he said that only the party that instigated this war over our democracy can bring an end to that war.

That's why Mike Pence's example is so important not just to these hearings but to hear. It was comforting to learn that he remembered with respect watching Vice President Al Gore certify his own election defeat in the year 2000.

Now, that was a close election, right, coming down to 537 votes in a single swing state. But Gore did his constitutional duty, swatting down a few desperate Democratic attempts to question electors. But Pence drew on that honorable example 20 years later.

That's the role of history, to guide us and inspire us to do the right thing even when it's difficult. And that's why these hearings are hopeful despite the desperate attempts by Trump that's not under oath to dismiss and diminish them, because this is the process of law and order beginning to reassert itself after atrophy. The historical record is getting clearer because of the committee's investigative work. And that might help the vast majority of Americans begin to agree on basic facts again.

Over time, the truth will loom larger than all the self-serving partisan lies, and eventually we might just look back and say this dangerous time made us stronger, wiser and more united because we finally remembered that a common commitment to our democracy and the Constitution matters much more than allegiance to any one president --

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