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Chief Justice Roberts Privately Lobbied Until End to Save Roe; Top Pence Adviser Testifies Before Grand Jury in DOJ Probe; White House to Name Monkeypox Coordinator as Emergency Considered. Aired 7- 7:30a ET

Aired July 26, 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]

ETHAN HAWKE, DIRECTOR, THE LAST MOVIE STARS: Well, don't worry. It's going to be a long act. I highly recommend you get your coffee. I'm not going anywhere. I didn't mean in it like that.

I meant that when I started acting, I was 13 years old. And that was a certain stage of my life. And then it was another stage of my life that happened when Training Day came out. Every actor's life, you have chapters. And I feel like if it's a three-act play, I'm -- intermission between the second and third act just finished, and here we're going.

JOHN BERMAN, CNN ANCHOR: Well, that's good news. You were a great bad guy. You were a great bad guy in Moon Knight, I have to say. So, it was very impressive.

Listen, Ethan Hawke, it was great talking to you. Thank you so much for joining us. Welcome to the CNN family. The all-new CNN film The Last Movie Stars directed by Ethan Hawke is streaming now on HBO Max.

BRIANNA KEILAR, CNN ANCHOR: Good morning to viewers here in the U.S. and around the world. It is Tuesday, July 26th. And I'm Brianna Keilar alongside John Berman this morning.

We're beginning this hour with new CNN reporting that takes us behind the scenes revealing just how close the Supreme Court came to saving Roe v. Wade. According to multiple sources, Chief Justice John Roberts fought to the bitter end trying to convince his fellow conservative justices to preserve the constitutional right to abortion. But it was the unprecedented leak of a draft opinion reversing Roe that may have doomed Roberts' efforts.

BERMAN: New details obtained by CNN revealed a high-stakes internal abortion rights drama that intensified in April when the justices first learned the draft opinion would soon be published. Tensions over the fate of Roe were only heightened by an investigation into the source of the leak that diminished whatever chance Roberts had to dislodge the five justice bloc set to overturn the abortion rule.

KEILAR: Joining us to share her fascinating new reporting here is CNN Legal Analyst Joan Biskupic. Joan, tell us how hard he was fighting to bring some folks over to his side.

JOAN BISKUPIC, CNN SUPREME COURT ANALYST: Good morning, Brianna and John. Extremely hard. He was trying week after week after the initial vote in December after oral arguments in which five of the justices on the far-right voted to overturn Roe, Roberts was alone in the middle wanting to uphold this Mississippi 15-week ban on abortions but not go further than Roe. And then, of course, you had the three liberals saying we don't want to do any of this, we don't want to disrupt abortion rights at all. So, Roberts keeps trying.

And it's interesting, Brianna, that not only did his work affect his efforts toward the two newest justices, Brett Kavanaugh and Amy Coney Barrett, but it had an effect on the others. The hard right justices became concerned that he could be successful. The chief has himself switched folks in the past and he's also been able to pick off justices on the far conservative side for more of a moderate centrist decision in certain cases. So, they became anxious about what he was up to and the liberals who had such a defeat this session, starting to have some hopes that maybe Roe would not be overturned completely.

But then on May 2nd, when the draft of the opinion was released and everything went public, it made John Roberts' efforts all the harder because he's a man who likes to work privately, in secret, offering some concessions himself, seeking concessions for some sort of, as I say, cross-ideological compromise. And it went down to the wire, according to my sources. But in the end, he made no headwind.

BERMAN: First vote, which I learned only from your reporting, was back in December. I mean, it was earlier than I think we had realized. You said it went down to the wire, though. Did either Kavanaugh or Amy Coney Barrett ever give any reason to anyone to believe that they were going to side with Roberts on this?

BISKUPIC: That's a great question, John. And I wanted to know, especially with Brett Kavanaugh, who often will sound ambivalent and send mixed signals but in the end stick with the far-right to see just how much encouragement he might have given to the chief. As I understand it, his vote was solid but he never said that he wasn't going to listen to the chief.

So, the chief kept trying. The thing that happened that as I said really thwarted things was when it was clear to the public how Justice Kavanaugh and Justice Barrett had voted. It locked them in more than might have been expected at that point, and made it all the more difficult.

And, you know, I do think that Brett Kavanaugh, despite what he said during his confirmation hearing and despite the way that he has sort of really publicly wrung his hands of this issue was likely never going to switch.

[07:05:03]

He was probably never going to change after he first said that he wanted to reverse Roe. His signal from the bench during those oral arguments, John, in December, before they took that vote was, you know, pretty strong. It's just that he has been in play before, and the chief just did not want to give up. He felt like this decision would be so wrong. They did not even take this case to decide Roe v. Wade. They took the case to decide whether a ban on 15 weeks -- a ban on abortions at 15 weeks of pregnancy was constitutional, because, as you probably remember, Roe v. Wade and the 1992 Planned Parenthood versus Casey had set up a firewall, essentially, of viability, that states could not interfere with a woman's right to abortion before a fetus would be viable outside the womb, and that was at about 23 weeks.

KEILAR: Yes. They really took an opportunity here. That leak, as you said, cementing things is under internal investigation at the court. What's the latest on that investigation?

BISKUPIC: Okay. So, you know, we're several months in and law clerks and permanent employees have been asked to turn over electronic devices. They've continued with the search. But there's -- nobody has been caught and there's just a lot of skepticism inside, that despite how aggressive the investigation has gone, that they are not close to finding out who it is.

You know, that draft was dated February 10th and it became public through Politico when it published it on May 2nd. So, you know, it could have changed hands. It might not just be one single person. You don't know how strategic it was that someone did try to leak it. But you know what, in the end, the effect it had, it could very much have been a very strategic leak, Brianna.

KEILAR: All right. Joan, thank you so much. And, of course, we can check out your essential reporting at cnn.com. Great stuff, Joan.

BERMAN: All right. The former chief of staff to former Vice President Mike Pence, Marc Short, tells CNN that he did testify before the federal grand jury investigating the January 6 insurrection. This makes him the highest profile witness, the highest profile within the Trump administration witness to have testified into the criminal investigation into the attack on the U.S. Capitol.

(BEGIN VIDEO CLIP)

MARC SHORT, FORMER PENCE CHIEF OF STAFF: I can confirm that I did receive a subpoena for the federal grand jury and I complied with that subpoena. But under advice of counsel, I really can't say much more than that.

That was my only appearance before the grand jury.

I'm not going to -- yes, I'm not going to comment what others -- on the team have had to testify or not regarding subpoenas and what they've testified to.

(END VIDEO CLIP)

BERMAN: With us now, CNN Political Commentator and show Host of CNN Smerconish and attorney at law, Michael Smerconish.

So, Marc short, the highest level person within the former administration to testify in this criminal probe into January 6, The New York Times and The Wall Street Journal, we should note, also reporting that Pence's former counsel, his vice presidential lawyer, Greg Jacob, has also testified there. How significant is it, Michael?

MICHAEL SMERCONISH, CNN POLITICAL COMMENTATOR: It's potentially very significant. Big picture is this. I've always believed that Donald Trump will be the Republican nominee in 2024, so long as he's healthy, so long as he's solvent and so long as he's unindicted, okay? Now, we're in that third realm.

John, for a long time, we thought that he faced the greatest legal peril from the Southern District, and then all of a sudden, it appeared that the Southern District was really not pursuing criminal charges against Donald Trump. Then it was the Manhattan District Attorney's Office. Anybody remember Cy Vance Jr. and the question of what's he going to do before he leaves office?

Fulton County, and we'll talk about Fulton County, all of a sudden comes out of nowhere posing real legal peril to Donald Trump, and all the while because the House committee can't bring criminal charges despite all their aggressive work, all the while, it has appeared that the feds have been the tail on the dog.

Well, maybe the feds were underestimated because, as you point out, this is a grand jury seemingly looking not just at the events of January 6 but also the preceding event, which would include January 4th, that Oval Office meeting where John Eastman is present. They're leaning on Mike Pence. And Eastman knows that what he's asking Pence to do is in violation of Electoral Count Act. The question is did Donald Trump also know what they were asking was illegal.

KEILAR: Yes. How much more likely, that goes to the question I have for you, Michael, which is, how much more likely is that Donald Trump faces legal consequences? How much more likely has it become over the last couple months?

SMERCONISH: I'd be very nervous if I were him. I'd be far more nervous than I would have been six months ago. I think it's been a calculated strategy on his part, Brianna, that he's continually -- I mean, right through today probably when he gives a speech in Washington, D.C., continues to say that the election was stolen from him.

[07:10:10]

Maybe because he believes it, maybe also because he knows that it gets to the criminal intent issue that we're discussing about what he knew as of the time of January 6th and when he was speaking to Mike Pence on January 4 and asking him to do certain things in that certification process.

BERMAN: Michael, let me read you The Wall Street Journal reporting about what these individuals were questioned about by these federal prosecutors in general, writes one area of interest to prosecutors was the January 4th, 2021 Oval Office meeting where John Eastman pushed Pence in Mr. Trump's presence to either reject the electoral votes outright or suspend the proceedings and ask several state legislatures to re-examine the results.

The Journal also reports prosecutors asked detailed questions about Rudy Giuliani who forwarded to Mr. Pence's office, letters from state legislatures urging Mr. Pence to certify false slates of electors claiming Mr. Trump won from states he actually lost.

Okay. So, who should be concerned if the federal prosecutors were asking these questions and what laws might at play, Michael?

SMERCONISH: I would think that Eastman, the lawyer, should be nervous. I would think that the former president should be nervous, Rudy Giuliani should be nervous. You know what occurs to me, John, as you're reading from The Journal, I'm all of a sudden remembering the federal judge, I think Bill Clinton appointee to the extent that matters, David Carter, David O. Carter from California.

Remember, he's the one in the spring who wrote a legal opinion relative to John Eastman and whether he was going to have to make a production of documents, said that both he thought that both Trump and Eastman had violated the law. I'm sure this is exactly what he was referring when he offered that opinion.

KEILAR: All right. Michael, stand by for us, if you would, because this morning, a Georgia judge is blocking the Fulton County district attorney from investigating Republican State Senator Burt Jones as part of that probe that Michael was talking about in the efforts to overturn the 2020 election. Jones served as 1 of 16 fake state electors for former President Trump in December of 2020.

CNN's Nick Valencia is live for us at the Fulton County courthouse in Atlanta with more here. Nick, tell us what happened.

NICK VALENCIA, CNN CORRESPONDENT: Yes, good morning, Brianna. According to the judge here in Georgia that made that decision, he called the optics of what Willis did horrific, going so far as to characterize in an open court as a, what are you thinking moment.

The district attorneys here in Georgia are partisan. They come with a political affiliation. Willis is a registered Democrat and held a campaign fundraiser for the political rival in the lieutenant governor's race of Burt Jones. She also donated to that political rival's campaign. She's since been disqualified from any prosecution related to Burt Jones for her involvement in his political rival's campaign.

We know that Burt Jones is not only just a Republican state senator here, he's also one of the so-called 16 fake electors that participated in a plan to subvert the Electoral College to try to certify former President Donald Trump as the rightful winner of Georgia in the 2020 election when we know he was not. Willis has now been disqualified from a conflict of interest as well as political bias. Her counsel in court filings tried to indicate that her support for Jones' rival and lieutenant governor's race should not be grounds for disqualification. A judge clearly disagreed. Now, a special D.A. may be selected to question Burt Jones. That's yet to be seen.

But a big week here in court is expected, where at least 11 of those 16 fake electors are expected to arrive here in court to testify. Remember, guys, it was last week that they were served a letter saying that they had gone from witness in this criminal probe to targets of the criminal investigation.

Fani Willis' investigation here of election interference has been wide-ranging, broad-reaching. Remember, there's at least seven key Trump allies that have also received subpoenas, including the Republican senator in South Carolina, Lindsey Graham, as well as the attorney for President Trump, Rudy Giuliani. It's yet to be seen how this misstep by Willis will affect her case going forward. Brianna?

KEILAR: All right. Nick, thank you for the very latest on that.

Back now with Michael Smerconish on this piece of this puzzle here. What do you think about what she did? I mean, are you as surprised as the judge was, this is a, what are you thinking moment?

SMERCONISH: No. I think the judge is of absolutely correct. Big picture, so, Fani Willis has arguably the most aggressive investigation on under way pertaining to the Trump administration, the events of January 6, the leaning of Brad Raffensperger and also the slating of these phony electors.

I'd say she's farther along, because as the report suggested she's issued target letters. And you really don't get to the point of issuing a target letter until you've got particular focus in your probe.

So, what did she do? She got involved in a fundraiser in primary season, and, Brianna, she tries to say that that was significant because it really wasn't with an eye towards Senator Jones, who is now being investigated, but, rather, picking favorites in primary season.

[07:15:04]

The judge didn't buy that because, after all, whomever won the primary was going to run against Senator Jones.

The takeaway is she got politically involved in a race where now she's investigating one of the participants, an incumbent. Does it put the kibosh on the overall investigation? It does not. They'll probably try and create some type of a firewall so that the investigation continues, but that she has to be limited with regard to this one focus of the probe.

BERMAN: Yes, I was getting to my question. That's an interesting carve-out, right, because he is not the only fake elector who has been notified as being a target. There are others as well, so she still, in theory, has plenty of avenues to go down to investigate, Michael? SMERCONISH: She does. Look, all politics are local. It's not surprising that there would be this interconnectivity and there would be old grudges and so on and so forth. But I have to say, when you are in a prosecutorial position, and even if doesn't say it in the black and white, you can't be involved in partisan politics. It's just a huge no-no. And the judge was flabbergasted and I'm not surprised.

KEILAR: Yes. It's not that there's no there there with the person that she's perhaps looking at but you can't be the person she is to be checking on it.

All right, Michael Smerconish, always great to see you in the morning. Thank you. And you can catch Michael's show at 9:00 A.M. on Saturdays.

KEILAR: So, the White House is expected to name a monkeypox coordinator as cases in the U.S. are rising. Dr. Anthony Fauci is going to join New Day next.

Plus, more than 100 congressional staffers demanding President Biden take ambitious and assertive action to address the climate crisis.

BERMAN: So, what exactly is a recession? How will we know if we are in one and why are people fighting about it?

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[07:20:00]

BERMAN: With more than 3,000 cases confirmed so far in the United States, cases of monkeypox, the White House is expected to name a monkeypox coordinator to help in the response to the outbreak.

Joining us now is Dr. Anthony Fauci, chief medical adviser on COVID to President Biden and director of the National Institute of Allergy and Infectious Diseases. Dr. Fauci, thank you so much for being with us.

What exactly would a monkeypox adviser do and how difficult has this been for the administration to get its hands around over the last several months?

DR. ANTHONY FAUCI, DIRECTOR, NATIONAL INSTITUTE OF ALLERGY AND INFECTIOUS DISEASES: Well, it certainly is a serious problem and that's the reason why there's consideration for getting someone to be responsible for the overall coordination. There are several aspects of it. I mean, obviously, as an infectious disease problem, as you showed the numbers, John, it's a growing problem.

The World Health Organization has declared it a public health emergency of international concern. There are now over 80 countries throughout the world who have cases, more than 16,000 cases in non- endemic countries. So, this is something we're taking very seriously.

And when you have something like that, you want coordination among all the different agencies, the research, the public health. There are three issues and one outreach. So, the four pillars that we take are obviously testing, increasing the testing, which has been done rather dramatically from about 6,000 tests a week to now about 80,000 tests a week.

Then there's the vaccine, which is going to be distributed in a way that is equitable for people who are post-exposure, as well as those who are in risk of getting infected and have a pre-exposure.

And then you have therapy, which you've got to make sure that the paperwork and logistic constraints associated with the distribution of therapy are brought down do a very, very low minimum. So, those are the kind of things that you want someone to actually coordinate all of those things to get a much better response. We're doing well but we've got to do much better.

BERMAN: Much better, how? I mean, when you say much better, has there been a slow response to this?

FAUCI: Well, you know, John it depends what you mean, because early on, when the outbreak was noticed, the strategy was a post exposure, prophylaxis, which is the standard way of this time of a pox virus that you would get it to the person, who, in fact, has been infected and those around them sometimes referred to as ring vaccination.

But it's very clear with the spread of this that there now has to be a balance between vaccines available for those who clearly have been exposed as well as those at risk. And that's where now the change in the distribution, so that you anticipate that someone might get infected, as opposed to responding to someone who is infected. And that's the way the strategy is going right now.

BERMAN: The WHO, as we noted, has declared an emergency. Should the United States declare a public hit emergency on this?

FAUCI: You know, John, I'm not going to get ahead of that. I mean, that's something that's obviously under active consideration. But I don't want to be giving an opinion until we sit down with the team and talk about whether that happens. That would not be appropriate.

BERMAN: So, who needs to be vaccinated right now? And is this a situation if and when there's enough vaccine that ultimately the whole population or larger populations will get vaccinated for monkeypox?

FAUCI: I don't think that you're going to have the entire population. I mean, obviously, you leave the door open for any possibility. But I would doubt that that's the case. Because what we're seeing right now -- and it could change, it could go beyond the population of men who have sex with men. But if you look at the number of vaccines available, early on, we've now distributed about 323,000 doses that have been distributed now. And within I hope a few days, John, maybe hopefully by the end of July, there will be an additional 800,000.

[07:25:00]

So, what you want to do is a balance between vaccinating those who clearly have had exposure but go well beyond that. For example, if you look within the population of men who have sex with men, those who were on pre-exposure prophylaxis for HIV and are at risk, those are the people that you want to vaccinate in a pre-exposure prophylaxis, as well as men who have sex with men who are HIV-infected but who are low and essentially undetectable viral load who they know they're not going to transmit to someone else with HIV, they may be quite at risk for monkeypox. So you're going to want to vaccinate those. So, there's an entire layer of group of people who are at risk. That's what we need to do.

BERMAN: Very quickly, I do want to ask you about coronavirus. The president's exposure, we saw him yesterday. We've been told he is recovering quite well at this point. Any new update on his condition?

FAUCI: Yes. I mean, I was speaking with his physician, Dr. Kevin O'Connor, last night. He's completed his five days. Now, the decision is where are we going from here regarding continued testing and how soon can we get him out back to the -- he's doing his job right now, for sure, virtually. But how do we get him back out? He's feeling really very well. In fact, each day, he improves more and more to the point now where he really does feel quite well?

BERMAN: Has he tested negative yet?

FAUCI: You know, I don't know, but I doubt it, to be honest with you, John. I know that it would be unusual to test negative so quickly.

BERMAN: I have two more questions. So, with him, it does raise the question, one of the things I know you'll be looking for, the signs of long COVID going forward, just because he's had it and everyone is concerned about this. For all of us, what should we look for in terms of symptoms of long COVID? When should we go to a doctor with those concerns?

FAUCI: Well, the constellation of signs and symptoms, John, long COVID are very, very (INAUDIBLE). There are so many different ones. The ones that are the most common is exhaustion following activity that normally would not exhaust you. That's the first thing. Then there's temperature dysregulation. You feel chilly, maybe some sleep disturbances, sometimes difficulty in concentrating.

The thing that's going in the positive direction for the president, he's vaccinated, he was doubly boosted, he had a good immune response and he was on Paxlovid very, very early. So, the viral replication in him was suppressed very, very early by the Paxlovid.

Hopefully, that's going to be something that will put him way out of risk. There's always a risk and that's what you look for but that's something is unlikely with him because of the circumstances that I just mentioned.

BERMAN: So, when we last spoke, I had asked you about when and if there would be a government recommendation for people under 50 to get that second booster shot. At this point, is it worth waiting for reconstituted booster that will deal directly with these omicron variants that we're seeing?

FAUCI: Well, John, it depends if you're talking about a select group of people who are at risk of the general population. The FDA still has not made a definitive determination about how to balance the need of someone who is at risk for severe complication now, who hasn't been boosted in a while versus getting a vaccine in the fall that might be specific to the circulating variant.

One thing you don't want to do, John, you don't want to withhold a vaccine for someone who hasn't had a vaccine for a while, who is at risk, a pregnant person, someone with one underlying condition, congestive heart failure, chronic, obstructive pulmonary disease.

As a physician, if I had someone at risk and hasn't been vaccinated with a boost in several months, I would not want to wait a few months. I would want to get them covered now. And then when you get to the fall, then you're concerned about when you're going to give them that additional boost. But you don't want to hold back in a high-risk person.

BERMAN: I do want to leave you with this, which is politics, I know one of your least favorite subjects here. Senator Rand Paul, a Republican, and some Republicans talking about what they might do if they retake the House or the Senate in the fall. Senator Rand Paul says, of the Republicans, if they retake the House, one way or another, if we're in the majority, we will subpoena his, your records, and he will testify in the Senate under oath. Your reaction to Rand Paul and others saying they're going to investigate you if they take the House.

FAUCI: Well, there's no reason to do that. But if they want to, go ahead. My records are an open book. They are talking about things that are really bizarre, John, like crimes against democracy, by shutting down the government. All I have ever done and go back and look at everything I've ever done was to recommend common sense, good CDC- recommended public health policies that have saved millions of lives.

[07:30:06]