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Judge Forcing Pence To Testify About Conversations With Trump; Trump Dismisses Post Of Himself Holding Baseball Bat Next To Bragg; Jon Stewart Rips "Martyr Trump" Talk: U.S. Has Rule Of Law Or Not. Aired 9-10p ET

Aired March 28, 2023 - 21:00   ET




PAMELA BROWN, CNN HOST, CNN PRIMETIME (voice-over): Tonight, investigations closing in.

MIKE PENCE, FORMER VICE PRESIDENT OF THE UNITED STATES: We're evaluating the court's decision.

I have nothing to hide.

BROWN (voice-over): A federal judge decides, former Vice President Mike Pence must testify, in the January 6 investigation.

DONALD TRUMP, FORMER PRESIDENT OF THE UNITED STATES: People are pleading with the prosecutor, "Don't do it. Don't do it. It's wrong."

BROWN (voice-over): And the Manhattan grand jury, investigating former President Trump, in the Stormy Daniels case, hears from new witnesses.

LANNY DAVIS, MICHAEL COHEN'S ATTORNEY: Mr. Pecker corroborates what the federal prosecutors said about Donald Trump.

BROWN (voice-over): As the shadow of indictment looms, Trump's rhetoric grows more extreme.

D. TRUMP: The thugs and criminals, who are corrupting our justice system, will be defeated.

BROWN (voice-over): And threats are made against the District Attorney.

REP. ADRIANO ESPAILLAT (D-NY): We will not be intimidated by threats.

BROWN (voice-over): With fears rising over what could happen next.

REP. HAKEEM JEFFRIES (D-NY): It's dangerous. He's going to get someone killed.

BROWN (voice-over): The Republican Party closes ranks, looking to defend Trump, from possible prosecution.

REP. JAMES COMER (R-KY): We believe this is a political stunt.

BROWN (voice-over): As legal jeopardy mounts, is this a turning point?



BROWN: Good evening. I'm Pamela Brown.

Will the forced testimony, of his own Vice President, lead to charges against former President Donald Trump? That is the big question, tonight, as a federal judge today ruled that Mike Pence must appear, before a grand jury, and reveal his conversations, with Trump, in the run-up to the Capitol attack, despite his efforts to avoid doing so.

In moments, we have new reporting, on Pence's next step, and you'll hear what the former Vice President himself, has to say, about this ruling.

But obviously, this is a win, for Special Counsel, Jack Smith, who is investigating efforts to overturn the 2020 election.

Now, Pence, of course, presided over the certification, of the Electoral College vote. And, according to witnesses, before the January 6 committee, Pence was on the other end of a quote, "Heated" phone call, the morning of the attack.

Also tonight, in another investigation, into Trump, we're learning of a new development, and the potential looming indictment, in the hush money case, in New York.

But first, let's begin with the judge's ruling, involving Pence.

CNN's Paula Reid is here.

This is truly significant. This ruling, we should note, is still under seal. But our reporting indicates, the judge said Pence has to testify. It's more narrow that the judge did acknowledge that Pence - the Speech or Debate Clause that Pence had been arguing.

But the bottom line, as I'm told by a source, close to Pence, is that he's undecided on whether he's going to appeal, and that this opens the door to more questions, from DOJ than Pence would have wanted.

PAULA REID, CNN SENIOR LEGAL AFFAIRS CORRESPONDENT: Exactly. And this is a big win, for the Special Counsel, because now Pence is going to have to answer questions, about his conversations, with former President Trump, leading up to January 6, and on the day of the Capitol attack.

There was, as I'm sure you remember, that infamous phone call that multiple witnesses have testified about, where Trump got on the phone, with his Vice President, and launched a pretty brutal attack, against him, trying to pressure him, not to certify the results of the election. So, here, investigators, they want to hear about this pressure campaign, not just from Trump, but also from his allies. You may also remember, Pence wrote about a lot of these conversations, in his book, as part of an effort, to move books, to make sales. So, it's unclear if he's going to be able to share additional details, if there are additional details.

But it's so critical for the Special Counsel, to get a record of this, under oath, as he moves forward, on any potential prosecutions.

BROWN: Yes, we'll see if he appeals. We'll see if Donald Trump appeals, on the privilege question.

REID: Yes.

BROWN: Thanks so much, Paula Reid, standby.

The heated conversations, between Trump and Pence, were vividly recounted, during the House Select Committee's investigation, of January 6. Take a listen.


ERIC HERSCHMANN, FORMER TRUMP LAWYER: At some point it started off as a calmer tone in everything, and then became heated.


VOICE OF NICHOLAS LUNA, FORMER ASSISTANT TO PRESIDENT TRUMP: So, as I was dropping off the note, I - my memory, 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." "Wimp" is the word I remember.

UNIDENTIFIED MALE: It's also been reported that the President said to the Vice President that - something to the effect of, "You don't have the courage to make a hard decision."

GEN. KEITH KELLOGG, FORMER PENCE NATIONAL SECURITY ADVISER: Worse. I don't remember exactly either, but something like that. Yes.


KELLOGG: Like being, you're not tough enough to make the call.

VOICE OF LUNA: Something to the effect, this is - the wording is wrong, "I made the wrong decision four or five years ago."

UNIDENTIFIED MALE: And that the word that she relayed to you that the President called the Vice President - I apologize for being impolite, but do you remember what she said, her father called him?



BROWN: The heft of this development underscored by the directness, of those conversations, two men, at the highest levels of power, in this nation, talking without intermediaries, or assistants, working on their behalf.


Here with two very different takes on this, Karen Friedman Agnifilo, former Chief Assistant D.A., in the Manhattan District Attorney's Office; and David Schoen, who was lead counsel, for Donald Trump, in his second impeachment.

All right, let's first take a listen, to what Pence said, just a short time ago.


PENCE: We're evaluating the court's decision.

But again, I do want to say that I am pleased that the federal judge, really, for the first time, in history, recognized that the Constitution, Speech and Debate provisions do apply to the Vice President, when one is serving as President of the Senate.

But how they sorted that out and what other testimony might be required, we're currently reviewing.

But look, let me be clear. I have nothing to hide. I have a Constitution to uphold.


BROWN: So, in his interview, tonight, Pence presented this, as a win for him.

And I'm wondering, first, to you, Karen, do you see it that way? A win for Pence?

KAREN FRIEDMAN AGNIFILO, FORMER CHIEF ASSISTANT MANHATTAN D.A.: No, he's going to have to testify, before the grand jury. He's going to have to provide his testimony, about the conversations, leading up to January 6.

What the judge ruled today, what we're hearing, because it's under seal, was that he - it's only limited. The Speech and Debate Clause, which is usually only limited, to Representatives or Senators, because he has the role, of being President of the Senate, in that limited role, when he was certifying, the election, he doesn't have to testify about that.

But all of that January 6 is on video. So, really, what's important, and what they need, in the grand jury, are what, were the conversations before that, and the pressure campaign that Donald Trump put, on Mike Pence, to not certify the election, and potentially, potentially, provide evidence that would show Donald Trump was committing a crime.

So, I think, he might want to say this is a victory, because it did say that the Vice President, which is normally in the - gets the executive privilege, which he also doesn't get, in this case? That was also rule does not apply. But this is the first time anyone's ruled that the Speech and Debate Clause does apply.

BROWN: David?

DAVID SCHOEN, LEAD COUNSEL FOR TRUMP IN SECOND IMPEACHMENT: Yes. I think it's a partial win, for the Constitution, and for Vice President. I think it's also a basis for him to appeal it, if he decides to.

Remember, we haven't seen the order yet. But Judge Boasberg is a very well-respected judge. I'm sure it's very well thought-out.

The reason, I say, it's a partial win, is it is true that the judge apparently found that the Speech or Debate Clause applies to the Vice President, sitting in his role, as President of the Senate. The Justice Department has taken that position, with respect to Mr. Pence, in a couple of civil cases, already. So, I think that was an appropriate decision, from any perspective.

I think the reason I say, he has a basis for appealing it is the Speech or Debate Clause is generally very broadly applied.

So, in other words, in the Bannon case, in D.C., the judge applied it to the members, and to all of their staffers, and including press - statements to the press, things like that.

Under the Gravel case, it really should apply to statements that are integral part of the deliberative or communicative process.

BROWN: Right.

SCHOEN: We will see.

But remember, it's Trump, who invoked executive privilege. So, they could appeal that ruling, also, because apparently, Judge Boasberg rejected the executive privilege.

BROWN: Yes, that's right. So, we'll have to wait to seem, on both of those fronts, whether they're appealed.

But David, you argued the details of January 6, in that impeachment trial. How damaging could Pence's testimony be, for Trump?

As we know, I've reported, many of my colleagues have reported, about all the interactions, between Pence and Trump, leading up to January 6. And there was a lot of reporting, obviously, in the January 6 committee as well.

SCHOEN: Yes. I think, everything is out there, already, quite frankly.

I don't think there're going to be damning conversations that now are going to be opened up, based on this ruling. I don't think.

On the other hand, Vice President Pence is in the best position to know. And I think that he made the point that he wants to uphold the Constitution. So, we don't so much focus on the substance of the discussions, to determine whether he'll appeal it or not. It's really the principle of law.

But your question directly is, how much - how damning could this be to President Trump? I don't think it will be, frankly.

BROWN: All right, so let's talk about another case. And that is the classified documents case. Let's listen to what Trump said, about that case, in an interview, last night.


SEAN HANNITY, FOX NEWS HOST: I can't imagine you ever saying "Bring me some of the boxes that we brought back from the White House. I'd like to look at them." Did you ever do that?

D. TRUMP: I would have the right to do that. There's nothing wrong with it.

HANNITY: I know you. I don't think you would do it.

D. TRUMP: Well I don't have a lot of time, but I would have the right to do that. I would do that.


D. TRUMP: The Presidential Records Act is very specific.

It says you are going to discuss the documents. You discuss everything, not only documents, everything, about what's going in NARA et cetera, et cetera.


BROWN: Of course, the Presidential Records Act is about preserving the documents, if you're President.

What do you think about this, Karen? Do you believe that he had the right, to take those classified documents, with him?

FRIEDMAN AGNIFILO: It doesn't appear that he had any right to take those documents.


And what struck me really strange about what he said was he claims that the Presidential Records Act allows him to do just that. But when you - if anyone reads the Presidential Records Act, which is, you can find it online?


FRIEDMAN AGNIFILO: It's very clear. It actually says the opposite of that.

And it says the records that were part of his presidency? Not personal love letters, or cards, or things that he maybe and his family gave to each other. But things that were regarding his presidency, which, of course, classified documents are? Those belong to the American people, and the National Archives have - are the custodians of that, and they don't belong to him.

And so, I just find it very head-scratching that he will go, on national TV, and say, the opposite, of what is factual. And that's what he did, with regard to those documents.

BROWN: If you were a lawyer, in this case, David, and hearing him say that what would your reaction been? What do you think?

SCHOEN: I think that there are a lot of factors going on here.

First of all, I think that what he refers back to is the power to declassify arises from his role as Commander-in-Chief. He certainly had the right to declassify some documents, while he was still President. That's one thing he thinks about.

He also, he doesn't speak like a lawyer, in these cases, or doesn't pretend to. He speaks from advice that he's gotten, from lawyers, all that. So, I think, when he refers to what he could have done, the documents, he means that he had the power, when he was President, to declassify those documents.

Remember, all of these issues don't turn, are on their classified status. Some of the charges that the Justice Department's looking into don't relate to whether or not the - or depend on whether or not the documents were classified. There are a lot of - it's a complicated question, quite frankly.

BROWN: All right. David Schoen, Karen Agnifilo, thank you so much.

Well make sure, you tune into Wolf Blitzer's one-on-one conversation, with former Vice President Mike Pence, this Thursday, at 9 PM, only on CNN.

Well, Donald Trump predicted he'd be arrested a week ago, today, in the New York hush money case. And tonight, still no indictment. But there are new developments. News on that grand jury's activities, just ahead.



BROWN: Well, there will not be a vote, this week, on whether to indict former President Trump, in the case of hush money, paid to an adult film star. Sources familiar, tell CNN, the Manhattan grand jury, investigating Trump's role, in the scheme, will not hear that case again, this week.

Back with us now is Paula Reid.

And joining us is CNN Correspondent, Kara Scannell.

So Paula, what is going on here? What's taking so long?

REID: Well, this is conduct that occurred approximately seven years ago.


REID: This investigation has been going on, for years. So, it's all relative.

Well, former President Trump set up a false expectation, of something happening, last week, right? He put on social media that he believed he would be arrested, last Tuesday. Of course, that did not happen.

But we also know last week, the prosecutors were thrown for a bit of a loop, when defense attorneys asked them, to please put attorney, Robert Costello, before the grand jury.

Then, we learned, following that, our colleague John Miller learned that they were contemplating whether they needed to bring someone, back in, to rebut Costello's testimony, attacking Michael Cohen, undermining his narrative, of how these hush money payments were arranged.

So, we saw David Pecker, go in, on Monday. And it's unclear if they're going to call additional witnesses.

But look, if we don't have a vote, on a possible indictment, it's clear, prosecutors just don't think their work is done right now.

BROWN: So how significant is it Kara, that David Pecker was called back, as a witness, this week?

KARA SCANNELL, CNN CORRESPONDENT: Well, I mean, David Pecker is at the heart of these payments, right? He was there, at the very beginning. He's a longtime friend, of Donald Trump's. He was involved in these so-called catch-and-kill deals for years.

And an agent, for Stormy Daniels, had reached out to AMI, the company that he was in charge of, at the time, in October of 2016, one month before the presidential election. He put them in touch with David - with Michael Cohen. And Michael Cohen, of course, then eventually did finalize this deal, and issued the - make the - facilitate the hush money payment.

So, he really is a witness that can come in, and kind of reset the table, after Costello was in, and say, "Remember, this is how this started," and explain to the jury why this came about, and I'm sure, the urgency of this.

I mean, about two weeks, before the election, the deal was still not done. And Pecker reached out to Cohen, over a secured and encrypted app, and had said to him, they need to get this deal done, or quote, "It could look awfully bad for everyone."

So remember, David Pecker received immunity, for his testimony, in this case, and also in the federal case, alleged charges against Michael Cohen. So, he certainly is a witness that can kind of bring them inside the room, and set the table, for what the urgency was, right before the election. BROWN: All right. Kara Scannell, Paula Reid, thank you both.

Well, ever since Donald Trump posted on social media, about what he insisted was a pending indictment, his lawyer has been all over television. And in those media appearances, Joe Tacopina argued several points, consistently, in defense of his client.

Well, we have got a former - a couple of former federal prosecutors, here, to take you through those claims, point by point.

Laura Coates and Elie Honig, I'll let you two take it away.


Well, Laura, there's a lot we don't know.


HONIG: But you can bet on this. If this case gets indicted, they're going to go after Michael Cohen, with a passion. Let's take a look.



JOE TACOPINA, ATTORNEY FOR DONALD TRUMP: It was legal fees that was invoiced by Michael Cohen, who--


TACOPINA: --arranged this on his own, with his own money initially, took out a loan, literally, resolved this without the President knowing.


COATES: So obviously, he's trying to say, "Look, it's just Cohen to worry about. It's only him. He was kind of a lone wolf in this. He's no longer affiliated, in any way, with Donald Trump."

But remember, this is a tactic that he's trying to use, to get that 10-foot pole. It may not be successful though, Elie, because of course, they were very tied, at the time of this actually happening.

HONIG: Yes. It's really important to remember. The crime here is not the payment of hush money.

COATES: Right.

HONIG: The crime is in how they booked that. And so, they're going to blame Michael Cohen.

The other thing that we know they're going to do, Laura, is attack Michael Cohen's credibility. So, you want to attack Michael Cohen's credibility, or you want to defend Michael Cohen?

COATES: Ooh, I'll play! I'm going to - I'm going to attack his credibility, for a second, here, OK?

HONIG: Go ahead.

COATES: Because again, you think about it. If you are a classic defense attorney, you're going to say, "Really? The guy, who has an obvious perhaps axe to grind against my client? He has been steadfast in his criticism. He essentially has had this air of 'Why is it just me who, was actually the person, who was having this happen to you?'"

And so, in that respect, you're going to lead with that. It's better - and this has happened before.


COATES: The idea of attacking someone's credibility is really key to any defense.

HONIG: In any cooperating witness.

COATES: Right.

HONIG: The prosecution is going to argue, "Yes, he has this history of lying."



HONIG: "Yes, he was convicted of perjury. But he did that all when he was with Donald Trump."

And since then, they'll argue, he's come clean, and they'll argue, he's corroborated by documents, including the checks, which we've seen, which show the reimbursement payment, to Michael Cohen, signed by Donald Trump.

So, there will be a big battle, over Michael Cohen's credibility.

COATES: Do you think he's been consistent? Therefore, there will be a lot of things.

And listen to this. Even aside from the credibility issue, which will always be a part of it, Elie, here, saying, "Listen, even if it's a credibility or not, the real point is, it wasn't made for a political purpose."

HONIG: Right.

COATES: "It was not that."

Listen to what the attorney has been saying, about this very note. (BEGIN VIDEO CLIP)

TACOPINA: If the spending were the fulfillment of a commitment or the expenditure would exist irrespective of a campaign, it's not a campaign law violation. End of story.


COATES: End of story?

HONIG: Not necessarily!

So, this is the John Edwards' defense. Remember, John Edwards ran for president, in 2008. And it was came out afterwards that he had two donors, paying nearly a million dollars, to silence hush money, to his mistress, John Edwards' mistress. Now--

COATES: Who was pregnant at the time.

HONIG: Who was pregnant and his--

COATES: Remember, there was that added fact.

HONIG: And his wife was sick as well.

John Edwards went to trial. He beat the case. One count was acquitted. The other counts were hung. DOJ dismissed the case. Because, he argued, the purpose of these payments was not campaign-related.

COATES: Right.

HONIG: It was personal.

So, look for Trump, we just heard Joe Tacopina, to make a similar defense.

COATES: And Giuliani, early on, when this actually came out, remember the pre-Giuliani days, when he was actually considered to be an attorney, for President Trump? He made the same argument.


COATES: So, remember what's different about the John Edwards case. The payments were largely made before even the primary season, a year before a presidential year.

He did not have the threat of the person coming out, to actually air the story, which is a very different scenario. And remember, you say they were, is a good case for him. But it hung on some counts, and DOJ opted not to try to go back in it. So, it's very, very different.

But finally, this all might be for not - I'm talking about Tacopina, because remember, if you're talking about whether he'll actually be counsel, earlier in the week, and last, we heard about a potential conflict of interest, Elie. You know the one.

HONIG: Yes. So, Tacopina used to represent Stormy Daniels, and that will he be--

COATES: Yes. Well at least in part.

HONIG: In some part. Now, will he be thrown off the case? I don't think it's likely. I think more likely, he's going to just be walled off from Stormy Daniels.

And the last thing we've been hearing, from Donald Trump's lawyers is, "This is all political."

COATES: Right.

HONIG: "This is all about getting Trump."

Let's take a quick listen at that.


TACOPINA: It's a case that shouldn't be brought, and wouldn't be brought up for anyone other than Donald Trump.


COATES: So again, not true, given the idea of just the Edwards case alone. But it's different. Again, thinking about this, this is not about selective prosecution, which is what they're trying to say.

We know there's prosecutorial discretion, right, when you have an attorney, being able to say, "I'll bring this case, but not that case." But if there is meat on the bone, the fact that a prosecutor will pursue one case, and perhaps not another, is not to say, it's persecution.

HONIG: Right. And we know the Feds decided not to charge Donald Trump here.

COATES: That's right.

HONIG: But this is not the Feds. This is the D.A., across the street. Like you say, they're separate sovereigns, they make their own decisions.

COATES: Right.

HONIG: And this is the beauty of our court and trial system, which you and I grew up in.


HONIG: Which is, it comes down to the facts, and the law, and 12 civilians, in that jury box, who decide the fate of any case.

COATES: If we grew up, remember, I'm younger! Thank you so much.

Back to you, Pam.

HONIG: That's true.

BROWN: All right. That was a great discussion. Thanks so much, Laura Coates, Elie Honig.

We should note. We invited Tacopina, on this program, tonight. He declined.

Well as the threat of an arrest looms, the former President's threatening rhetoric is intensifying, and he's even celebrating those, who attacked the Capitol, on his behalf, bragging about a musical collaboration, with jailed insurrectionists.

Maggie Haberman, Kaitlan Collins, and Alyssa Farah Griffin, join us next.





What so proudly we hailed At the twilight's last gleaming

D. TRUMP: I pledge allegiance to the flag of the United States of America.


BROWN: Former President Trump, kicking off his first official campaign rally, in Waco, Texas, 30 years after the deadly siege, with a rendition of the National Anthem, featuring himself, and a choir of men, in prison, for their roles, in the January 6 attack.

Trump stood, hand to heart, as the song played, while footage from the attack played in the background.

It is not the first time of course that Trump has glorified violence. But, in the face of legal peril, his rhetoric has only grown more extreme.


D. TRUMP: 2024 is the final battle. That's going to be the big one.

Our enemies are desperate to stop us.

They're not coming after me. They're coming after you. And I'm just standing in their way.

Either the Deep State destroys America, or we destroy the Deep State.

(END VIDEO CLIP) BROWN: Joining us now, two top journalists, who have closely followed Trump, "CNN THIS MORNING's" Kaitlan Collins; and CNN Political Analyst, and New York Times Senior Political Correspondent, Maggie Haberman.

Also with us, former Trump White House Communications Director, Alyssa Farah Griffin.

Kaitlan, I want to start with you. You have been to so many of Trump's rallies. You are all too familiar, with his inflammatory rhetoric, and his ways. And when you look at this, versus 2016? In 2016, his messages were often dark, talking about carnage in America. This seems more extreme. What do you think?

KAITLAN COLLINS, CNN ANCHOR & CHIEF CORRESPONDENT: I think the way I'm looking at it is how he campaigned, in 2020. And on that, a lot of that was focused on his election grievances.

What it seems to be focused now on, in this Waco rally, was his investigation grievances, and the issues with his investigations, because that was something he centered on. He talked about the weaponization of the Justice Department, saying that was the central issue, of our time, is I think how we referred to it.

And obviously, when you poll voters, those are not the top issues that they have concerns about. Maybe Trump's - some Trump supporters do. But generally Republican voters, that's not the top of their list.

And so, it was just notable to me that that was kind of his central message is the investigations, he's focusing, or that he's facing the legal peril that he is in. And that was kind of the message that he was driving home.


Now, on the flip side of that, I will say, there were a lot of people, at this rally. There was a lot of enthusiasm, at this rally.

So, I think that is an important thing to note, when the reporters are there, on the ground, when we talk about, and you hear from people, like Chris Christie, who just said, tonight, in an interview, with Axios that because the January 6 choir was playing, at the beginning of that rally, he says he can't - that person shouldn't be president that he's not going to support Trump, again, for the presidency.

That's a notable comment, from people, like Chris Christie. But does it match up with the Republican primary base? That's obviously an open question.

BROWN: Yes. What do you think, Maggie?

MAGGIE HABERMAN, CNN POLITICAL ANALYST, SENIOR POLITICAL CORRESPONDENT, THE NEW YORK TIMES: Yes, look, I do think it's pretty striking that number one, he was airing that footage at all that it was hand to heart, with this chorus. January 6, is an issue that Donald Trump was trying to avoid talking about, for a very long time, after he left office, because it was a terrible day. And I understand that there has been an effort, to try to, reimagine what took place. But it was a terrible day.

And so, to go from that in 2021, to now openly embracing it, simultaneous with this intimidation campaign that he's running against the Manhattan District Attorney? I don't think I can take these things as separate.

But I agree with Kaitlan. There is a market for it. His base is clearly supporting this. His base likes it.

As much as I think that it doesn't discourage Alvin Bragg, from potentially prosecuting Donald Trump, just because of these attacks, and it actually could help Bragg politically, it also helps Trump politically. And I think that is, as long as there is a market for something, Donald Trump is going to push it.

BROWN: Yes. And he feeds off the crowd. He was bragging about the song, how it was number one on iTunes.


BROWN: Here's what else he said about it.


HANNITY: Are you really beating Taylor Swift, by the way?

D. TRUMP: Yes, I did. The J6 is beating Taylor Swift. It's Donald Trump and the J6 prisoners!

HANNITY: You're doing the--

D. TRUMP: And--

HANNITY: --the Pledge of Allegiance.

D. TRUMP: --on iTunes, and on Amazon.


D. TRUMP: And on Billboard, which is the big deal, number one, Donald Trump, so now I feel like Elvis.


BROWN: I'm wondering what your take is, Alyssa, on this. Because, you've resigned, as the Comms Director, from the Trump White House, after January 6. Now, you see he is part of the song, with the January 6 insurrectionists. And he's up there, on stage, playing footage of January 6. What's your take?

ALYSSA FARAH GRIFFIN, CNN POLITICAL COMMENTATOR, FORMER TRUMP WHITE HOUSE COMMUNICATIONS DIRECTOR: Well, first, I need to fact-check on if he's actually outperforming Taylor Swift, because that just does not seem accurate to me!

But, on a more serious note, I'm someone who spent a lot of time, with him, knows him well. And I made the mistake for quite some time of not taking his word seriously enough, or literally enough.

With Trump, it's so easy because he speaks imperfectly. He doesn't even have the time to speak and complete thoughts to be like, "Oh, no, that was just some idiocy, he rattled off. It wasn't meaningful."

But you guys know this well. One thing he is intentional about is words, whether it's words he uses in tweets, or in Truths, or that he uses in speeches.

So, when I was watching this Waco speech, this was very orchestrated. It was planned. He wanted - he chose that location, for a reason, a historic extremist site that has cult-like ties to it. That is stuff that is planned with him, and you can't disconnect those things.

And I was struck that this rhetoric is significantly harsher than we even saw leading up to January 6. So, we remember, "It's going to be wild," ahead of the January 6 rally. Some of what he's been saying is going much further now.

But what's striking to me is it's not connecting. And thank God that it's not. We've not seen massive protests, massive rallies, because of the indictment. And I think, the disconnect is he lied to the public, at January 6, and said, "Your vote was stolen, the election was stolen." So people came out to fight for their vote, in their election. It was a lie.

This is him airing his grievances. And it's not - it's not connecting. That doesn't mean it's not - people aren't going to support him. It doesn't mean he's not polling well. But it's not manifesting the same kind of incitement that we previously saw.


HABERMAN: With one caveat, which is that we don't know, assuming that he is indicted, what it will look like, after he's indicted.


HABERMAN: And I think part of why we have not seen protests since is, to your point, I do think that a lot of his supporters remember what happened, on January 6.

There were a lot of people, who were arrested, just as his song points to, and many of whom felt as if he didn't do enough, to support them, and help them, either with legal fees, or in some other way.

So, I think, there is a real reticence, among some of his supporters, even if they like him, and don't think that he should be under investigation, to go risk themselves and protest.

COLLINS: But also the idea that he's playing that song and touting it in that interview while he is under investigation, for January 6? HABERMAN: Yes.


COLLINS: And we've seen how aggressively Jack Smith, the Special Counsel, is moving. I mean, you talked about that at the beginning of the show, tonight, when it comes to Pence having to testify, and talk about his conversations, with Trump, leading up to that day.

So, that was, I think, was the most striking split-screen, to me, is to see them talking about it the way that they played that and touted it, while he is under a very aggressive investigation--


COLLINS: --from the Justice Department.

BROWN: And now we're learning. I mean, that is a big deal that his Vice President will have to testify, about him, assuming, because we know, from our reporting, about this judgment that's still under seal, that the judge said he does have to testify that privilege doesn't apply here. We don't know how the appeal's going to go.

But, I mean, it's a big deal. How concerned do you think Trump is about this?


HABERMAN: I think that Trump has been concerned about Mike Pence testifying, this whole time, because only Trump is - Trump and a handful of other aides are the ones, who really know what was going on, in those conversations.

And what is fascinating about one of the rulings? There were two rulings that this judge issued yesterday. And one was about executive privilege, saying it doesn't apply. That was Trump's request.

BROWN: Today (ph).

HABERMAN: Pence's request was that he doesn't have to testify on the Speech or Debate Clause. And as we understand it, there was a narrow split ruling on that that Pence doesn't have to testify, in relation to what Pence was doing, on January 6, but he does have to testify, about any potential illegality, by Trump.


HABERMAN: And I do think that that is basically like what we saw, in this documents investigation, where the crime-fraud exception--


HABERMAN: --was put in place, by a judge, and a judge said that the DOJ had met the threshold.

So, Pence has, he got some of this in his book, right? This won't all be a surprise. But I think that the prosecutors will be asking detailed questions, under oath, assuming that this doesn't, get appealed, and that they don't succeed on appeal.

I think that there was nobody else, who can afford a view, into Trump's mindset, the way Pence can, and who can talk about the pressure campaign, he was under.

BROWN: Yes. I mean, you were there, for much of that.

FARAH GRIFFIN: Right. And the reality is, if I were still advising Mike Pence, this is - this could be a win for him. I mean, it's the right thing to do, for the history books, for him to testify.

But he's very likely running for president. He's considering it prayerfully. This is a time for him to tell for the history books, the true story, of those final days, and to put a nail in the coffin, of the Trump presidency, or the aspirational coming presidency.

Now, Marc Short, his Chief of Staff, who would have been present, for most of those conversations, has already met with the grand jury.

I'm going to be speaking with the Department of Justice, though I don't have any knowledge I haven't shared publicly.

This is - his testimony, I think, is important for the history books. I have a sense, though, that the Special Counsel already has quite a bit of information they need.

BROWN: Yes, they do.

But it is, it's notable, and you mentioned the crime-fraud exception. Because we know that there was a phone call, right, before January 6, the morning of that heated exchange. And I'm sure that is what DOJ Jack Smith really wants to learn about and other calls leading up to it. And if Trump was doing something illegal, then that would be fair game, despite the ruling on the Speech or Debate Clause.

So anyway, really interesting developments in this case. Thank you all so much, for adding your perspectives and expertise to this.

All right, stick around, everyone.

Amid all the harsh rhetoric, from Donald Trump, are increasing attacks, against Manhattan D.A., Alvin Bragg, attacks that our next guest condemns, as racist. Stay with us.




ESPAILLAT: We will not be intimidated, as a community, by threats. And we're here to watch our D.A.'s back, to ensure that no one bullies their way through, and this allows a process to continue forward.


BROWN: New York congressman, Adriano Espaillat, at a news conference, calling to defend Manhattan District Attorney, Alvin Bragg, from what the lawmaker called, quote, "Racist" threats. That's after former President Trump's relentless attacks, on Bragg, on social media, at rallies, and in interviews.

Congressman Espaillat joins us now.

So Congressman, among other things, Trump, as we know, too, he has referred to Bragg, as an animal, on social media. You have condemned this as "Racist-fueled attacks, against D.A. Alvin Bragg, and his family," unquote.

What do you say to those, who don't believe that race plays a role in this?

ESPAILLAT: It certainly does. These are terms that have racial undertones, calling him an animal, his photo with bat in hand, next to the photo of the D.A. Of course, he called the D.A., racist, but in fact, he is the one cuddling with white supremacists. All of this is really embarrassing, for our country, and our city.

And so, we were there to back our D.A. He was duly-elected, by Manhattanites. And he has impaneled a grand jury that even today is, was listening to testimony, by witnesses. So, let the process continue. And no one, absolutely no one is above the law.

BROWN: Yes, it was yesterday, they met with David Pecker.

And I'm wondering, have you spoken to Alvin Bragg? I mean, you say, that, you're going to watch his back, you're going to be there for him. And I'm wondering, if you've spoken to him. And what kind of support would you provide for him?

ESPAILLAT: The community will rally around him. Unfortunately, his family recently got an envelope, with some white powder. Thankfully, it was not harmful. But the community will rally against them. I haven't spoken to him, directly. I him left messages. I want to know that him and his family are doing OK.

But we will continue to ensure that the process moves forward. And this is a well-respected D.A. that's had over 20 years' experience, at the federal level, now, of course, at the state level, and now at the county level.

So, he's someone with vast experience, a Harvard law graduate, someone that's well-respected, and a son of Harlem, within the district, the 13th Congressional District that I represent.

BROWN: So, you mentioned his family received an envelope with white powder. I'm just wondering what else, given your position, you plan on doing, to support him?

ESPAILLAT: Well, we will be there, watching the process, to ensure that no one really puts roadblocks, in the process that he is able to complete his grand jury investigation, and let the grand jury speak. And we will wait for them to speak. We know that there were impaneled 12 members of the grand jury, to hear the evidence that will then conclusively tell us whether or not Donald Trump committed a crime.

BROWN: And--

ESPAILLAT: Of course, the entire nation is waiting for this.

BROWN: You've mentioned the Truth Social post of Trump, with the bat.

Here's what he had to say defending himself about that. Let's take a listen.


D. TRUMP: I didn't do it. They did it. The - I guess, the people that do the paper or somebody put pictures together. But I was holding a baseball bat.


They took that picture, from the White House, and they put it up. And then they put a picture of Alvin Bragg up.


BROWN: So, do you buy that explanation?

ESPAILLAT: This is a very selective amnesia that he has.

We hear his rhetoric. Over 135 ex-prosecutors have determined that the kind of language he's using could incite violence. And certainly, we will not allow another January 6, in New York City, or in Manhattan. We will make sure that this process continue, and that no one is above the law.

BROWN: So, if former President Trump continues to use this kind of language, towards the D.A., do you think that should lead to additional criminal charges?

ESPAILLAT: It may very well be considered, in some cases, an additional crime. Certainly, if it's inciteful of violence, the prosecutors will then have to look into that.

But we feel that as he did in January 6, and certainly, he's been investigated, in different States, at different levels, of federal level, and in Atlanta, now, of course, New York County, we feel that he has engaged, in this kind of reckless behavior, for far too long, and puts people, in this case, our D.A., and his family, in danger.

BROWN: Congressman Espaillat, thank you so much, for your time.

And when we return, insight from Jon Stewart, on the possibility, of a Trump indictment.

(BEGIN VIDEO CLIP) JON STEWART, HOST, "THE PROBLEM WITH JON STEWART" ON APPLE TV+: The law should always take into account someone's popularity. I think that's - I mean, what - what's happened to our country, Fareed? It's as though you can't even commit financial fraud anymore!


BROWN: And it's not all sarcasm. The comedian gets serious on the notion that an indictment could get Trump, quote, "Martyr status." Only on CNN. Stay with us.



BROWN: A shoo-in, for the presidency. That's what many Trump supporters say an indictment will make for their candidate.

Also coming up, at the top of the hour, new details, on the tragic Nashville elementary school shooting, including revelations, the shooter was being treated for an emotional disorder.

Alisyn Camerota has the latest, on "CNN TONIGHT."

But first, as we mentioned, let's talking about the indictment, this pending indictment that, many people are talking about, potentially. This idea has prompted some people to question if charges should be brought at all, especially if they turn the ex-President, into a martyr.

Comedian Jon Stewart cut through the noise, speaking with CNN's Fareed Zakaria.


FAREED ZAKARIA, CNN HOST, FAREED ZAKARIA GPS: What if it turns out to be his get-out-of-jail-free pass? It's his path to - people will see him as a martyr, he gets he--

STEWART: OK. I don't--

ZAKARIA: You're OK with that?

STEWART: Is that I don't--

ZAKARIA: He could become president again.

STEWART: He could become president anyway. Fareed, it's we either have the rule of law or we have no rule of law. The rule of law does not take into account if that might make you a martyr to somebody.


BROWN: Maggie Haberman and Alyssa Farah Griffin are back with me.

And we should note it's Trump himself, who said that he would be indicted, last Tuesday. That has not happened. It's unclear what's going to happen, with this grand jury, in New York.

But I want to get your reaction, Maggie, to what we just heard there, from Jon Stewart.

HABERMAN: Well, he makes an argument that I think we all heard in civics classes, right, which is that nobody is above the law, and the law is supposed to be equally applied.

Now, the reality of the law is some - it is discretionary. It depends on what a prosecutor does. And prosecutors don't have to bring charges, in every case. They can decide there's a reason not to.

I think what he's arguing is that being a former President, maybe a future president, is not a reason to not charge someone. It does make - the point has been made repeatedly, that treating Trump differently, because he was a president, and because he is a candidate now, is letting him be above the law, is giving him a different standard.

And we have had that precedent, in this country. There have been other cases of people, who may have been indicted and weren't, because the decision was it would rip the country apart. I think the country is sort of well past that at this point. And I suspect that factors in.


HABERMAN: But whether the case is winnable or not is, I suspect, what Bragg is basing his decisions on.

BROWN: Yes. And you wonder how much all of this has weighed on Donald Trump, and his calculation. I mean, announcing early that he was going to run for president again? What do you think?

FARAH GRIFFIN: Well, I think when he announced his run for reelection, he was in a very weakened point. This is coming off of the midterms. His candidates vastly underperformed. He was probably the most weakened he'd been in seven years. But he's actually just been ticking back up in the polls.

And the investigations? I mean, he's a person, who's defied norms, and he's defied reality. And he's continued to move up in the poll, despite half a dozen civil, criminal, federal and state investigations going on.

The fact is he is a candidate that his base loves. He has a rock-solid hold on about 30 percent of the Republican base. But this is a man who I at least believe is highly unelectable, in a general election.

I hope that my party learns the lesson that we should have learned, in 2020, which is you can nominate him, but you will lose. This is a man, who incited an Insurrection. This is a man, who is under countless investigations. He's not going to win a general election.

But again, he's outperforming Ron DeSantis. Ron DeSantis has actually been dropping, as Trump has been gaining, despite news that he may be indicted. BROWN: Yes. And you mentioned, like when he first announced, he was at a weekend point. But the bottom line is these investigations were still ongoing.

And it's so interesting, though, that now he is saying, "Well, this is election interference," when these investigations predated, right, when he launched another run for the White House.

It's interesting also hearing Republicans, like James Comer, calling Bragg, saying that this is political interference. Again, it predated, the investigation predated Trump announcing.

What does this all mean? You bring up DeSantis. What does all this mean for DeSantis, in your view, Maggie?

HABERMAN: Well, strictly, politically? And I realize it's very hard to tease out the investigations, from all this, right now, because the investigations do impact the politics, for Trump, at this point.

But Trump has had a decent couple of months, politically, to Alyssa's point. He has ticked back up. He has been making these policy videos that I don't know how broadly they're being watched, but they're being disseminated, by his network, on social media, and his online supporters. And I do think they are getting viewers.


And he has generally been laying low, which for him is actually not the worst thing, in the world.

DeSantis has been discovering that running for president, even though he's not officially doing that is very hard. And it's very hard for everybody. And it's very hard to do in a sort of Rose Garden way, and a very hard to do in a coy way, where you're not a declared candidate, but everybody knows what's up.

Now, maybe DeSantis will be terrific, when he gets in the race, which I assume he will get in. But history is filled with candidates, who had early promise, and didn't take off. So, we'll see.

FARAH GRIFFIN: Well, and I would also just note, a sign of the strength that Trump has had, in light, on these investigations, is that when the news came out, when he tweeted that he was going to be indicted, last Tuesday, how many Republican elected officials rallied around him?

Mainstream leadership Republican officials said, "This is a witch hunt," and were coming to his defense. It shows the power and the hold that he has on the party.

When those people start breaking, that's a sign he's weakened, and that's not happening.

HABERMAN: That's right.

BROWN: All right, Alyssa Farah, Maggie Haberman, thank you so much, again.

And there's also news, tonight, in a civil case, against Donald Trump. His attempt to escape a trial, denied. That's next.



BROWN: New developments, in yet another legal case, against former President Trump. A federal judge, tonight, rejected Trump's effort, to throw out a defamation claim, brought by writer, E. Jean Carroll, related to comments, he made, in October, ridiculing her. The case is set to go to trial, next month.

Well, thank you so much, for watching tonight.

"CNN TONIGHT" with Alisyn Camerota starts now.