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CNN TONIGHT: Oklahoma Poised To Ban Abortion "From Fertilization"; Ex-Head Of DHS Anti-Disinformation Board On Her Resignation; Actress Ellen Barkin Testifies In Heard Trial, Claims Depp Threw Bottle At Her And Others In The '90s. Aired 9-10p ET
Aired May 19, 2022 - 21:00 ET
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
ANDERSON COOPER, CNN HOST: Want to hand things over to Laura Coates, and CNN TONIGHT.
LAURA COATES, CNN HOST: Anderson, thank you. And you're right. It still is very cool to see. I really love it. I'm expecting, you, one day, to go up to space. I'm waiting for all of that to happen. He chuckles!
But I am Laura Coates. And this is CNN TONIGHT.
Tensions are already high in this country, over abortion rights, otherwise known in some parts, as women's rights, with the Supreme Court's looming decision on the fate of Roe v. Wade.
But even as Roe still stands, there is a state that's on the cusp of enacting the most restrictive abortion ban, in the entire nation. Oklahoma's legislature passed House Bill 4327, today, which would ban most abortions, from fertilization.
Fertilization. Not from 15 weeks, like the Mississippi case, that's actually before the Supreme Court, and we're waiting to hear the final decision. Not from six weeks, like Texas that passed that case or, like Oklahoma itself enacted two weeks ago.
Now, this new law, awaiting Republican governor Kevin Stitt's signature, would outlaw abortions from fertilization, meaning when the sperm combines with the egg. Now, there are exceptions, however, for certain medical emergencies, or if the pregnancy was a result of rape or incest.
But even then, there are tons of questions, as to how those exceptions would work, in practice. For example, would you just have to report a sexual assault, to law enforcement? Or would there actually and eventually have to be an actual prosecution, of an assault, to terminate that pregnancy?
And not only would this Oklahoma law ban abortions, from fertilization. It would also allow private citizens, to sue abortion providers, or anyone, who aids and abets in abortion. It's really modeled on the Texas law, is it not?
Now, Governor Stitt has previously pledged to sign every single piece of legislation that limits abortion that might reach his desk. So, that means this law could go into effect, in days, hours, or minutes, immediately after he signs.
Reaction now, from someone, on the frontlines, of the fight for women's rights, Dr. Yashica Robinson, an Ob-Gyn, and Medical Director of the Alabama Women's Center. You may have heard her speaking at the House, here, on Capitol Hill, just yesterday, where there were very heated exchanges, with lawmakers, in general.
Dr. Robinson, welcome to CNN TONIGHT. I'm glad you're here.
DR. YASHICA ROBINSON, MEDICAL DIRECTOR, ALABAMA WOMEN'S CENTER, BOARD MEMBER, PHYSICIANS FOR REPRODUCTIVE HEALTH, OB-GYN: Hello. Thank you so much for the opportunity. I'm glad to be here.
COATES: Now, Doctor, when you hear about this, and what's happening in Oklahoma, really, the combination of some of the more restrictive notions, remember, the Supreme Court's looking at Mississippi, about a 16-week-or-so ban. This would say, fertilization.
You're an Ob-Gyn. The prospects of people, either A, knowing that they were pregnant, or being able to have this limitation, at fertilization, what would this encompass? And how difficult would this be, for the average person, average woman, to be able to exercise the rights that she once had?
ROBINSON: Well, with the Oklahoma ban, that is very unfortunate. I mean, a person cannot know, they're pregnant, or be pregnant, until there's actually - until fertilization takes place. So, that means that essentially there will be no abortion, for the citizens of Oklahoma. Period.
COATES: And part of the concern, if you look at sort of the geography, of the U.S.? As you well know, there are people in Texas, who were going to other states, across the country that may have border Texas, or were even beyond it, trying to make sure they could, while Roe v. Wade is still the law of the land, which it presently is.
But now, this takes away that avenue as well, for people to be able to travel, outside of Texas, or other places, to do so. What impact is this having, on women, in this country, right now, particularly, in those areas?
ROBINSON: Well, that's going to create an even bigger disparity, for people, in Oklahoma, and in the surrounding states.
Like here, in Alabama, and many other places, as continuous restrictions are passed down, more and more clinics close. And with that being said, people who need access to abortion care, are having to travel further and further.
So people, who have traveled to Oklahoma, and used that as a resource, in order to access needed health care, that will no longer be the next stop, for them. Those people will be forced to travel to further states.
We also have to look at the impact of the states that will be receiving these patients. And because they're not only going to be taking care of their own clients, but also clients that are now influxing from other areas.
Obviously, despite our desire, to take care of every person, who comes in, and needs care, there's a certain capacity that clinics have. So, that means it's going to create longer waiting lists. That means that patients will have to wait longer and longer for care. And unfortunately, that means that many people may never get care at all.
COATES: You were on the Hill, yesterday, trying to explain this, to lawmakers, in fact.
And it must be pointed out, you were a target of an incredible amount of disrespect, and rudeness, in trying to advocate, as your medical profession would require you to do, on behalf of patients, and just explain what the actual impact would be.
I want to play, for the audience, here, what that experience was, so they can hear in what you actually went through.
(BEGIN VIDEO CLIP)
REP. MIKE JOHNSON (R-LA): Do you support the right of a woman, who is just seconds away, from birthing a healthy child, to have an abortion?
ROBINSON: I think that the question that you're asking does not realistically reflect abortion care--
JOHNSON: In that scenario, would you--
ROBINSON: --in the United States.
JOHNSON: How about if a child is halfway out of the birth canal? Is an abortion permissible then?
ROBINSON: Can you repeat your question?
JOHNSON: If a child is halfway delivered out of the birth canal, is it permissible to have an abortion? Would you support the right for an abortion then?
ROBINSON: I can't even fathom that, ever.
JOHNSON: And I'm not asking you if you can fathom it. If it occurred, would you support that abortion or not?
ROBINSON: I can't answer a question--
JOHNSON: That's unrestricted abortion, right?
ROBINSON: --that I can't imagine. I'm - just like, you probably can't imagine what you would do, if your daughter was raped.
(END VIDEO CLIP)
COATES: Dr. Robinson, I mean, just the - sort of the absurdity, in part, of the question that the idea, I think, is really part of why people have these conversations, in ways that create additional political wedge issues.
What was your reaction to that notion of being asked that? Now that you've had time to reflect, what do you think was behind that question?
ROBINSON: In listening to that conversation, I think it just highlights the fact of - it highlights two things.
One that, they clearly don't understand what they're talking about. Two that, they really don't care. Because it doesn't matter how much you try to explain to them, the care that we provide, the scenarios that patients present with, that's not what they're interested in hearing.
Those aren't the things that gets votes, in other words. I think, when they use inflammatory language, when they put forth these absurd scenarios, those are the things that rouse up audiences, and gets them the votes, and accolades.
And it's very clear that the people that are making these decisions are not medical professionals. And it's unfortunate that they are the ones that have the power, and the decisions that they make affect real people's lives.
COATES: Dr. Yashica Robinson, thank you for your time. I appreciate it.
I want to follow up on that exact point.
ROBINSON: Thank you so much.
COATES: Thank you.
And continue the conversation with now, with someone, on the other side of the issue, on the political impact that she was just speaking about, the idea of what statements like that, or that line of questioning, might do, to incentivize people, to actually turn up to the polls, in favor of legislation, just like this.
Alice Stewart is an anti-abortion, social conservative, and a CNN Political Commentator.
Alice, I'm very glad you're here, because I want to get your perspective, on this issue.
You just heard the doctor state that perhaps it's a matter of not caring. It's a matter of not understanding the medical nuance, or really the medical obviousness, of how abortions, in this country, are either performed, either surgically, or through, increasingly so, medication abortions.
When you hear about the Oklahoma law, and of course, the reaction to it, what is your reaction?
ALICE STEWART, CNN POLITICAL COMMENTATOR, REPUBLICAN STRATEGIST: I think this is a huge victory, for those that are in the pro-life movement.
And I applaud Dr. Robinson, for the care that she provides, to women that are in her care.
But the questioning dealt specifically with what some states are leaning toward, is third-trimester abortions, which is just really unthinkable. What we have in Oklahoma, is--
COATES: But Alice, hold on, excuse me. But what states are leaning toward - I mean, just to be - you and I know each other quite well.
COATES: And you and I know, there is not a state that's articulating that somebody would have an abortion as a child is getting delivered. I don't even know what the medical reason, for that question would be.
Nobody is delivering your child, and then halfway, out of the birth canal, there is discussion about abortion. I mean, there's no real state that has that legislation, right? So, that was really more of a point of hyperbole.
STEWART: There was language in Virginia that hasn't - did not pass. But there was language that would protect third trimester abortion. And the line of questioning would be more to the way of making sure that that does not happen.
And what is happening, is the power for the pro-life movement is back in the hands of the states, if Roe v. Wade were to be overturned. And what's happening in Oklahoma is that they already have the heartbeat protection in place.
That law is in place, which would be a trigger law, when Roe v. Wade were to be overturned. What happened today is an additional protection, those that were in support of the heartbeat protection bill, wanted to move the date back to conception.
I spoke with one of the women, the senators, who drafted the language, for this, Julie Daniels. And she said, they knew it was a risk. But they felt it was important, for the pro-life movement, to move the date, back to conception. And this would really solidify the pro-life movement.
Governor Stitt had said, Oklahoma is a Republican state, is a very pro-life state. They support life from conception until natural death. And he feels it's very important, for the elected officials, in the State of Oklahoma, to support life, and the sanctity of life. And the taking of a life, to protect another, is not the way that they want to run that state.
And keep in mind, these are elected officials, put in place, by the people of Oklahoma, who knew full well, where they stood, on this issue, when they were elected into office. So, the key, what we're seeing now, is the power being put back in the hands, of elected officials, by people, who know exactly where they stand.
This is in support, by the majority of people, in Oklahoma. And if this were to be signed, by the governor, which, by all accounts, it should be, the goal here, is to provide a deterrent for abortion. And the way this works, is with both of these, in effect, it will provide a deterrent, for the person, who conducts the abortion.
And that has a civil cause of action, which would impose a financial penalty on them. They pay at least $10,000, if they perform an abortion, and also are required to pay the court fees and legal fees. So, this is - it's not a criminal penalty. This is a civil cause of actions, taking a lawsuit, against a person, who were to provide an abortion.
COATES: Alice, I always say that America's favorite pastime is not baseball. It's litigation. But, as a former litigator, and prosecutor, I really wonder about how you're going to be able to effectively either pursue these sorts of cases. Again, if there's also emotional distress, compensatory damages could also be given out--
COATES: --how does one actually achieve this goal?
And, as you've said, as Justice Alito has written his draft opinion, it would return the issue, to the states, creating this sort of a patchwork. I just wonder about the strategy, in terms of the political optics, and how this will be viewed? Will it incentivize people, to go to the polls, going forward, or not?
Alice Stewart, thank you so much.
STEWART: Thanks, Laura.
COATES: When we come back, there's a war within the war on disinformation. And you're about to hear, from the woman, at the center of the storm, over President Biden's controversial Disinformation Governance Board. That's now on pause, by the way. This just three weeks, after it was even announced.
So, why did Nina Jankowicz resign, as Executive Director? Was she taken down by the same kind of disinformation she and the Board were meant to fight against? We're going to ask her, next.
COATES: Twitter announcing today that it'll label and suppress misinformation, coming out of places, like Ukraine. Yet the Biden administration's biggest step, to fight, what the FBI Director called a quote, "Key part," unquote, of the Russian arsenal, just got derailed, by much of the same disinformation that it was designed to combat.
Three weeks after, the Department of Homeland Security, announced a so-called Disinformation Governance Board, the project's on hold tonight.
The administration, in fact, faced fierce criticism, both from civil liberty groups, on the Left, and from GOP lawmakers, and right-wing media, with claiming that the Board and specifically the woman, who picked - was picked to lead it, Nina Jankowicz, was un-American and quote, "Orwellian."
(BEGIN VIDEO CLIP)
REP. KEVIN MCCARTHY (R-CA): The President's Ministry of Truth is just an un-American abuse of power.
Nina Jankowicz, she actively worked and spread misinformation that now has been proven false. And they want to put her in charge.
SEN. TOM COTTON (R-AR): They assure us that it's not the speech of conservatives or conservative media outlets. Yet, this woman, who was in charge of it, she had labeled disinformation, things like the Hunter Biden laptop story, in the "New York Post," a couple years ago, which now even the "New York Times" and CNN acknowledge are truthful information.
REP. LAUREN BOEBERT (R-CO): Terminate this Orwellian Ministry of Truth, fire Nina Jankowicz, and prevent the Biden regime, from silencing the American people.
(END VIDEO CLIP)
COATES: Even the DHS Secretary admits they weren't ready for the exact same kind of tactics, the Board was supposed to spot from, say, foreign governments or international crime syndicates.
(BEGIN VIDEO CLIP)
ALEJANDRO MAYORKAS, HOMELAND SECURITY SECRETARY: I think we probably could have done a better job of communicating what it does and does not do.
(END VIDEO CLIP)
COATES: Well, here's the stark reality. Even as the Department puts the Board, on hold, and looks for bipartisan recommendations, on where to go next, the truth of the matter is the threat of disinformation still remains.
Well, the woman, who found herself, in the middle of the storm, Nina Jankowicz, is here now.
I'm glad you're here. Thank you for joining us today. Nina, I have to ask you.
NINA JANKOWICZ, FORMER EXECUTIVE DIRECTOR, DISINFORMATION GOVERNANCE BOARD, AUTHOR, "HOW TO LOSE THE INFORMATION WAR," AUTHOR, "HOW TO BE A WOMAN ONLINE": Thank you for having me.
COATES: Thank you. Excuse me. I have to ask you, Nina, I mean, this is--
JANKOWICZ: Thanks for having me.
COATES: --many people are wondering, about the idea of what was the purpose, of this particular organization, and what you were doing, and overseeing? Because if there were questions, and concerns, about the very tactics, or the goals, why was that not communicated effectively?
JANKOWICZ: Well, I understand Americans' concerns about the idea of government getting involved, in policing speech. But the good news is the Board had nothing to do with policing speech.
The idea was that the Board was going to be an internal coordinating mechanism, making sure that DHS subcomponents, things like CBP, Customs and Border Patrol, FEMA, which deals with natural disasters, all of these components, within DHS, were equipped, with the tools they needed, to continue the work, to fight disinformation that they've been doing, for more than a decade, already.
This absolutely could and should have been communicated better. I wanted it to be communicated better. But the reality is, that the type of disinformation that DHS is charged with combating, or addressing, is stuff that keeps Americans safe and secure.
So, let me give you an example. I mentioned FEMA, before. Let's say disinformation, from an adversary, like Russia, China, or Iran, is putting people in harm's way, during a natural disaster. That is the type of thing that we were trying to support our colleagues, across the department, in doing.
And unfortunately, and ironically, we were undone, exactly by a disinformation campaign, coming from folks, who apparently want to put our national security behind their own personal-political ambitions.
COATES: Your expertise is apparent. I mean, your chyron talks about the book that you've written about these various information. You've just articulated, the ways in which you've helped others anticipate the issue.
So, why was that not anticipated, here, in the sense of you do not expect that there would be some measure, or some inclination, to try to use misinformation, to sow distrust, in the same thing you're trying to do?
JANKOWICZ: Well DHS is an extremely large department. 250,000 people work there. The Department had other priorities. It's got a huge mission set. And so, at the time of the rollout, I think, there were other priorities that were kind of put ahead, of this rollout, of the Disinformation Governance Board. And unfortunately, the advice that I had given was not heated about how to communicate - how to communicate openly, transparently and rapidly.
And we created, unintentionally, an information vacuum that was filled with falsehoods. And frankly, directed a lot of vitriol, and digging into my own personal life that, I think, was entirely disproportionate, to the amount of power that I had, at the Department. These decisions were being made at a much higher level than mine.
And, as a result, my family and I have faced threats, almost every day, for the past three weeks. I don't think that that is something that anybody should be priding themselves on.
And frankly, the lies and falsehoods that were spread, about the Disinformation Governance Board, as I said before, this childish behavior, is putting the national security of our country, behind this sort of partisan vitriol.
And we need to - we need to stop that, because it's our adversaries, who recognize that that partisanship, that politicization, is exactly what they can manipulate, and why America is vulnerable, to disinformation, right now.
COATES: Well, first, it is extraordinarily unfortunate. And I'm so sorry that you're dealing with that, as a member of - your family, and thinking what you're going through on that notion.
But that's that - what you speak about, is the very question, I have, as to I understand why you have resigned, from being Executive Director. But why was the Board shut down?
I mean, the idea of it no longer or being - or being on a pause, right now, for the reasons you've just stated? The idea of the importance of national security, the idea of international manipulation, and exploitation, of the recognition, that misinformation is in many respects, ruling the day? Why is it not operational, right now?
JANKOWICZ: Well, I didn't resign because of the threats. I'm happy to take one for the team, and take one, for the country, frankly, in dealing with disinformation, because this is how important this issue is. I resigned because I was unsure of the direction that the Board was going to be going in.
And frankly, I hope the Department continues this important work. I hope it doesn't let this partisan vitriol color the rest of the important projects that the Department of Homeland Security is doing, related to critical infrastructure and election security, and, as I mentioned, disasters, the border, et cetera.
There is dis- and mis-information, in all of those areas. And I do not want to see all of those important projects sidelined by this political partisanship. With the Board's future uncertain, I decided to leave. Because you know what? There's plenty of work to be done in the public sector. I've been doing it, for years, and I intend to continue doing it. I will not let my critics silence me.
Again, just because of these ridiculous claims that take my claims out of context that lack nuance that decontextualize them? That's the disinformation playbook. And that's what I'm here to fight.
COATES: Ironically, that's exactly what they would say, as a retort, as to why they want to undermine the organization.
Nina Jankowicz, thank you so much.
JANKOWICZ: Thanks for having me.
COATES: The formula shortage isn't about politics. It's about parents feeding their babies. So, we're getting answers, from someone, at the center of the fight, to get formula, right back on the shelves.
Agriculture Secretary, Tom Vilsack, joins me. But will his message resonate and reassure parents? We'll ask him, next.
COATES: The Biden administration secures the very first batch, of overseas baby formula. The shipment from Switzerland is expected, in the coming days.
Now meanwhile, the FDA Commissioner, today, tried to reassure parents who, frankly, for weeks now, have been desperately trying to feed their babies.
(BEGIN VIDEO CLIP)
DR. ROBERT CALIFF, FDA COMMISSIONER: It will gradually get better.
Within days, it will get better. But it will be a few weeks, before we're back to normal.
(END VIDEO CLIP)
COATES: The question is, will it come soon enough for parents, who are watching the shortage, get more dire, by the day?
(BEGIN VIDEO CLIP)
HEATHER NICHOLAS, MOTHER OF 5-MONTH-OLD: Your mind doesn't stop thinking about it, especially at night. I hate to say. I've lost a lot of sleep.
(END VIDEO CLIP)
COATES: Now, even if the Biden administration, can get this problem fixed, in a few weeks, it only begs the question, why didn't it take, and make these moves, back in February? That's when the Abbott plant that's responsible for almost a fifth of the U.S. supply was actually shut down.
I want to ask a member of the administration, Secretary of Agriculture, Tom Vilsack.
Secretary, thank you for being here, this evening. It's important to have you here, in particular.
TOM VILSACK, AGRICULTURE SECRETARY: You bet.
COATES: Because, of course, the big question, everyone's asking, if we know the plant was shut down, back in February, why is it taking so long to either, A, rev up production, or for the White House to be responsive in this way?
VILSACK: Well, there were a series of stages that had to be taken.
First of all, we had to make sure that we recalled all of the product that was produced, in that plant, in order to minimize the tragedies that occurred. And that was the first step.
The second step was to make sure that 50 percent of the formula that is consumed, in this country, is consumed through the WIC program. We had to create the flexibility, in that program, to basically maximize opportunities, for WIC parents, to have access.
Then, we needed to take a look at how we might be able to safely import, from other countries, product.
Then, we needed to make sure, we got the plant, the Abbott plant, back online. The Defense Production Act, which the President authorized, yesterday, designed to provide the ingredients, if you will, the ability for that plant, to sort of step ahead of everyone else, to get those ingredients, to get up and going.
And now, also basically being able to fly formula, in from other countries, had to be able to identify the resource necessary to purchase that formula. Glad to see that 1.5 million eight-ounce bottles of formula, will be headed our way, from Switzerland, in the very near future, landing in Indiana, hopefully, in a matter of days.
COATES: That's important to have the corrective measures taken now.
But, of course, point two you made, in terms of the WIC people, the idea of people trying to ensure that they actually have coverage, and able to have the supplies they need. I mean, this is - we're talking about over a million newborns, and over a million babies, are in the WIC program, as we speak.
And there was a memo that went out, back on February 23, from the USDA that offered WIC agencies, the opportunity, to have waivers, to allow parents to buy from other brands. But people don't realize WIC actually restricts the access to a variety of formula types. And so, you have to really be confined, what your state is actually doing. And it is state-by-state.
So, if that's the concern, and knowing that shouldn't be the concern, at least in part, why from February, to now, are we just now getting those corrective measures taken? I get there's a bureaucratic process. But time is of the essence, for the nutritional value of a child.
VILSACK: Well, to be clear about this, waivers - the recall occurred, I think, on February 17.
On February 18, we sent out a letter, to WIC - 86 WIC agencies that basically operate this program. And within a matter of couple of days, we began to receive those waiver requests. And those were basically processed.
So, within a matter of couple weeks, we had roughly 66 of the 87 WIC state agencies, requesting and being granted waivers. So, those waivers went into effect immediately, in early March, and have been in effect, for some time.
In addition, we also worked with Abbott, to make sure that if there was additional costs, associated with a transition, to a different brand, that Abbott would essentially pick up the cost. We asked them to extend that effort, through this summer.
So, there's been a lot of activity taking place. And, in fact, work was done, on waivers, immediately.
COATES: So, in terms of Abbott, in particular? And I appreciate your explanation, on that, and idea of the expedience of dealing with the waiver issue.
But going forward, it's very concerning, for parents, all across the country. Even myself. I don't have babies any longer. But I still have children, I remember quite well, what it was like, to try to make sure they had the nutrition they needed. And I know formula is very regulated, in this country, for that very reason.
But do you have concerns, going forward, about the market share power that say, an Abbott has? At the idea of a recall such as this? And it's important to recall any contaminated product, of course.
But with the market share so extensive, that it could lead to such shortages, are there plans, going forward, to make sure that this doesn't happen again, in terms of that market share, as well?
VILSACK: Well, Congress, obviously, is passing legislation. It's going to create greater flexibilities.
But you raise a good point. And, I think, basically, as a result of this circumstance, and frankly, as a result of the pandemic, I think we're rethinking the efficiency of our food system. It is incredibly efficient. But one of the reasons it's efficient is because it's become quite concentrated. So, the question is whether we need to basically create more competition, which may lead, hopefully, to lower costs, and greater flexibility, and greater resiliency, in the event of disruption?
And I think that's an appropriate question to ask. And I would anticipate and expect that folks across the country are asking that question, today, whether or not it makes sense, to see an expansion, of production facilities, or ways, in which we can be a bit more resilient, when and if we have a disruption, of this nature, in the future.
COATES: Secretary of the U.S. Department of Agriculture, Tom Vilsack, thank you for your time.
VILSACK: Thank you.
COATES: Ahead, new developments, at the defamation trial, of actor Johnny Depp versus his ex-wife Amber Heard, today, including a video deposition played, from actress Ellen Barkin.
Some very strong words, against Depp, from her. Depp's not on trial. But will Barkin's testimony hurt his case? We'll explore it, next.
COATES: More damning testimony, today, in the Johnny Depp-Amber Heard defamation saga.
Heard's legal team continued its defense, by bringing former Depp associates to the stand, to testify about the star's alleged pattern of alcohol and drug abuse, and its impact on his behavior.
Jurors even heard, from actress Ellen Barkin, who was apparently in a romantic relationship, with him, back in the 90s. And well, recounted this.
(BEGIN VIDEO CLIP)
ELLEN BARKIN, ACTRESS: Mr. Depp threw wine bottle, across the room, the hotel room, on one instance, in Las Vegas, while we were shooting "Fear and Loathing in Las Vegas."
It was a toss, throw (ph).
He's just a jealous man, controlling. "Where are you going? Who are you going with? What did you do last night?"
I had a scratch on my back once that got him very, very angry because he insisted it came from me, having sex with a person, who wasn't him.
(END VIDEO CLIP)
COATES: Get some perspective now, from Ken Turkel, an attorney, who specializes in celebrity defamation cases. Ken, I'm glad you're here.
And we've all been sort of watching this play out, although this case really points out to you. There's the court of law, and the court of public opinion. There's a lot that's playing out, on social media, as you well know.
From your perspective, as a lawyer, in terms of defamation, how do you see this case? Is it leaning in one direction or the other?
KEN TURKEL, TRIAL LAWYER SPECIALIZING IN REPUTATION PRIVACY CASES, ATTORNEY FOR HULK HOGAN IN GAWKER LAWSUIT, ATTORNEY FOR SARAH PALIN IN NY TIMES LAWSUIT: It's hard to tell. It doesn't act like a defamation case, privacy case, general reputation type claims.
The case is really presented more like almost a classic he-said, she- said, domestic abuse domestic violence case. For instance, they're not engaged in sort of historical arguments, over speech, such as an actual malice standard, like I recently had, in the Palin case.
And so, in that respect, you have completely polarized positions, you have complete denials, on both sides of the conduct, and a very long trial, kind of given the subject matter of it.
So, you read the Twitterverse, and you read the fan bases activating, and that's great. But I don't think you could ever use this as a barometer for what the jury is going to do.
I think people lose sight of the fact that in the cracks and margins of a trial, jurors are looking at everything, every little - every little scintilla of non-verbal conduct, for instance. And you just never really know. I mean--
TURKEL: --you prosecuted. You understand that. A jury goes out, and you're - the feeling's always the same, right?
So, I don't think we can draw on the fan base, and the social media. We're looking at just lie is - just witness after witness, relating to two positions that are completely opposite, so.
COATES: Well what's interesting about that, to me, in particular, Ken, and having prosecuted, but also done defamation cases, is the idea of - and you're absolutely right with this.
The normal protocol, is to focus on what, the thing you're there for, is, which is, the idea of the Op-Ed that was written, by Amber Heard, that intimated that she was a victim of domestic violence.
And Johnny Depp believes that although his name was not mentioned, in that, that people assumed it was him, and he's had a reputational harm, and been blacklisted, as a result of it. Now, you and I know that of course, the idea of the actual malice standard, because we're both public figures, and truth of the defense (ph) should come in. But we really haven't heard so much about any of that. It's really been more about the toxicity of their relationship, or the allegations around it.
How will that bode, in terms of a jury, being asked to decide, the law here, though? There's the salacious. There's the SNL skits. But then, there's the idea of has there been the standards met, and the burdens of proof?
TURKEL: Right. And so, to your point, in a defamation case, the element of concerning (ph) right, a threshold element that the defamatory publication, whether it be libels, or slander, has to be about the plaintiff, OK?
That's not really getting debated here, all right? And I've had to survive that motion on dismissal summary judgment and in trial. And so, you have that aspect of it, which is traditionally more of a speech issue that isn't really being fought.
As to why they're there? And this is something, I think, that it's critical to look at. These cases should have a reason, OK?
And whether that reason is hard and fast business damages, i.e. lost opportunities, which both sides are certainly talking about? Or vindication of principle? Or vindication of reputation? That should be driving the case. Like any case, you should have a goal and a result you're looking for, for your client.
And I don't know. And I think this is what's fascinating, about this case. Ultimately speaking, after what are we 19 days, into the trial, Laura, or something like that, right? And I don't know that you ever come out of this, as a winner.
Because this toxic relationship is just being vetted, for the whole world to see, that their respective fan bases are going to be fine. But to what end? Are they trying to rehabilitate careers for Hollywood? Does that happen, when you air this much dirty laundry, for this long?
Because, in my experience, when I've represented high-profile clients, that's what you don't want to do. And, in fact, in certain cases, you don't even bring it because, you know, the media cycle is going to emphasize it. So, I question that.
Something that popped into my mind was when the audiotape got played, I can't remember, a week ago or so that Amber Heard was on?
COATES: You mean the one when she's--
TURKEL: That at that point--
COATES: You mean the one when she mentions the idea that she doesn't care if - what was the phrase? Something along the lines of, it doesn't matter, if what she said was a lie, something to that effect. TURKEL: Right. Right. And you have this tape. Your jurors learn visually, and they learn by things like audiotapes, right? I mean, the lawyers talk. But they get it after a while.
TURKEL: And, like many cases, and I'm as guilty of this, you tend to over-try them.
But when you have that evidence, to me, if I'm on Team Depp, I'm done there, right? In other words, you resolve the case, there, and you've kind of convinced the world that like, "Look what I'm dealing with."
Now, who knows what's been discussed behind-the-scenes. And that's always hard.
COATES: That's true.
TURKEL: When I talk about other people's cases. For instance, this parade of character evidence, Ellen Barkin? I can't, under similar fact evidence standard, understand really, exactly why that comes in, OK?
COATES: Well that's an interesting point. And I was thinking that. Because a lot of the audience, of course, remember is, for example, the Bill Cosby trial. And these are not at all analogous facts here, but the - analogous facts, but the idea of why evidence comes in. We'll have to keep watching, because this is certainly not over.
Ken Turkel, thank you so much.
TURKEL: Laura, thanks for having me.
COATES: Thank you.
I do want to turn to a much different legal case, but one with this elephant, at the center of the fight. And I do mean the literal elephant, living at the Bronx Zoo.
But the question is, could the law treat her, as a person, when it comes to where she lives? Listen, her case might be stronger than you think. And the video that may help her case? We're going to play, next.
COATES: So, could a lawsuit, involving an elephant, change how we define a person, under the law? Look, that question's at the forefront of the case, for the New York Court of Appeals, as we speak.
So, let me introduce you to Happy, a 50-year-old elephant, who has lived in the Bronx Zoo, for most of her life. Now, a group, called the Nonhuman Rights Project, is suing, to get her released. It argues that Happy has habeas corpus rights, under state law. Now, habeas corpus rights protect against unlawful detention of people. But what defines a person?
Now, Happy's attorneys argue that she deserves personhood protections, because she's highly intelligent, and autonomous, and self-aware. She was the first elephant to pass the so-called mirror test, which very few species have passed successfully.
You're seeing a little bit here. You can see her touching a white X, on her forehead, repeatedly. Now, scientists say that that means that she can recognize herself.
Now, right now, Happy is being kept alone, which some officials says, is in her best interest. But her attorneys argue, in order for Happy, to truly be happy, she needs to be with other elephants, in a larger sanctuary.
Let's discuss now, with CNN Chief Legal Analyst, Jeffrey Toobin.
Jeffrey, I'm glad you're here.
And people may, at first blush, say, "Why are we talking about an elephant, and personhood?" But over the history of at least the legal jurisprudence, we have been debating the constraints of who is a person, whether it's three-fifths of a man, or the idea of a corporation.
Now, this case, what do you see happening here?
JEFFREY TOOBIN, CNN CHIEF LEGAL ANALYST, FORMER FEDERAL PROSECUTOR: When I first heard about this case, I, probably like you, I thought it was kind of a joke and ridiculous. And I still don't think it's going to win. But it is a more complicated and interesting question.
As you pointed out, the courts have said that the Constitution protects non-people, corporations, in certain circumstances, ships, in the law of admiralty have constitutional rights. So, the idea of who has constitutional rights is not a simple question.
Now, the question here is about animals. And one definition that has been used, about who deserves constitutional rights, is someone, who has the capacity, to bear duties and responsibilities. And that's not - it's got to be broader than that.
Because there are lawsuits, on behalf of infants, children, people with intellectual disabilities. They don't have the intellectual ability, to form a desire, to bring a lawsuit. But the law allows them to bring a lawsuit. So the question is, do animals fit into that category.
COATES: And interesting that they're using habeas, as a way. And, for many people, who may remember habeas, these are unlawful detention, as in you're supposed to bring the body, before the court. They have to have their due process rights secured. Here, they're saying that this elephant, who they believe should be akin to a person, is having their - is being unlawfully detained, by not being in an animal sanctuary, for elephants, and being essentially in a type of solitary confinement. Interestingly enough, the same organization has tried this with chimpanzees, for example.
TOOBIN: Chimpanzees, yes.
COATES: And, I'm wondering, what do you think makes the difference now that the Court of Appeals is even grappling with this issue?
Because they had a whole lot of slippery slope type of questions, in terms of trying to reach the logical conclusions? Who else might be next? Is it a dog? They can't be a pet any longer? What do you think about it?
TOOBIN: Well, see, I think that's why this argument, which is more interesting than I thought it was, falls apart.
Because the line between an animal that deserves protection, and an animal that would not deserve protection, for example, all the animals that we eat, which obviously is not something that any court is going to grant protection to, I don't think the law is capable of drawing those sorts of distinctions.
Chimpanzees, and elephants, yes, dogs, no, cats, no, I just don't think judges are going to want to get into those categories. But remember too, there are laws on the books that protect against animal cruelty.
So, the law has recognized that animals have a status that the law protects, in some circumstances. The problem is not - it's never been an affirmative right. It's never been a right that your dog can go to court and say, the master is treating the dog cruelly.
But, this topic, I was reading some of the briefs, in this case. Argentina, Colombia, have actually allowed lawsuits, on behalf of endangered animals. So, I mean, it's not out of the question, everywhere.
And it is a case that makes you think more than - more than you - more than you expect, at first. But ultimately, I don't think it's going to win.
COATES: I mean, it's a fascinating case, particularly on the backdrop that I think the irony is lost on no one that on the backdrop of waiting for a Roe v. Wade opinion, about defining a person, and who has rights, and state's interests, compared to others? It's a really fascinating case.
Jeffrey Toobin, thank you so much.
TOOBIN: OK, Counselor.
COATES: We'll be right back.
COATES: Hey, thanks for watching. I'll be back tomorrow.
"DON LEMON TONIGHT," starts, right now, with, of course, Don Lemon.
DON LEMON, CNN HOST, DON LEMON TONIGHT: Hi, Laura Coates.
So, since we have this news about January 6, I want to ask you, with your legal mind, what impact do you think, these hearings will have, on the country? Probably more, in the court of public opinion? Because everyone, or many of the people, or most of the people involved, have already faced a judge somehow, or the legal system, in some way.
How do you think it's going to affect the court of public opinion, once this all happens, and it's playing out on television?
COATES: I think it would be impactful in the sense that, remember, the court of public opinion is the electorate. That's what where that is. And so, this is who it's for.