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Justice Breyer To Retire Giving Biden A Supreme Court Pick; U.S. Says, Ball In Russia's Court After Responding To Its Demands; Study Shows Moderna Booster Still Durable Against Omicron After Six Months; DOJ Investigating Fake 2020 Elector Certificates Declaring Trump Won; Justice Stephen Breyer To Retire After Nearly Three Decades As A Consistent Liberal Voice On Supreme Court. Aired 6-7p ET

Aired January 26, 2022 - 18:00   ET

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

[18:00:02]

WOLF BLITZER, CNN HOST: We want to welcome our viewers here in the United States and around the world. I'm Wolf Blitzer. You're in THE SITUATION ROOM.

Let's get right to the breaking news, Justice Stephen Breyer deciding to retire from the U.S. Supreme Court giving President Biden a chance to nominate his successor while Democrats still control the U.S. Senate.

Our White House Correspondent M.J. Lee is joining us right now. M.J. this is a very significant development for the Supreme Court and for the Biden administration.

M.J. LEE, CNN WHITE HOUSE CORRESPONDENT: That's right, Wolf. For any sitting president a, Supreme Court vacancy is a huge moment and one of President Biden's big campaign promises was to put a black woman on the Supreme Court if the opportunity arose. And with Justice Breyer expected to announce his retirement, President Biden might just get that opportunity.

(BEGIN VIDEOTAPE)

LEE (voice over): Tonight, President Biden confronting a major decision about the Supreme Court. Justice Stephen Breyer expected to retire from the highest court, paving the way for the president to nominate his replacement, one of the most of the most coveted and momentous action a sitting U.S. president can take.

JOE BIDEN, U.S. PRESIDENT: There has been no announcement from Justice Breyer. Let him make whatever statement he's going to make. And I'll be happy to talk about it later.

LEE: Biden now getting the opportunity to fulfill this 2020 campaign promise.

BIDEN: I'm looking forward to making sure there's a black woman on the Supreme Court to make sure and in fact get --

I committed that if I'm elected president, have an opportunity to appoint someone to the courts will be -- I'll appoint the first black woman to the courts.

We are putting together a list of a group of African-American women who are qualified and have the experience to be in the court.

LEE: The White House reiterating today Biden's position on this front remains unchanged.

JEN PSAKI, WHITE HOUSE PRESS SECRETARY: The president has stated and reiterated his commitment to nominating a black woman to the Supreme Court and certainly stands by that.

LEE: The upcoming nomination and confirmation fight now expected to dominate Washington and the White House for weeks. Senate Majority Leader Chuck Schumer looking to move quickly following a similar timeline that Republicans used to confirm conservative Justice Amy Coney Barrett in 2020.

The political calendar and the upcoming midterm elections looming large over Democrats. The president's party currently has the slimmest of majorities in the Senate with Vice President Kamala Harris as the tie-breaking vote, this adding urgency for Biden to act quickly before the Senate potentially changes hands.

REPORTER: Mitch McConnell said that if Republicans were to take back the Senate in 2022, he did not see a way that you could get a Supreme Court justice confirmed. Do you have a response to that?

BIDEN: Mitch has been nothing but no for a long time, and I'm sure he means exactly what he says. But we'll see.

LEE: Appointed to the court in 1994 by President Bill Clinton, Breyer, a consistent liberal justice on the bench. He has been a defender of abortion rights and affirmative action as well as a first opponent of capital punishment. Breyer also writing the opinion rejecting the challenge to the Affordable Care Act last term. More recently, Justice Breyer coming under intense pressure including from many progressives to retire. The 83-year-old justice saying the confirmation process should have nothing to do with politics.

JUSTICE STEPHEN BREYER, SUPREME COURT: If the public sees judges as politicians in robes it's confidence in the courts and in the rule of law itself can only diminish.

LEE: Several names already in circulation as possible replacements. Among them, Judge Ketanji Brown Jackson, a former Supreme Court Clerk for Breyer.

JUDGE KETANJI BROWN JACKSON, D.C. CIRCUIT COURT OF APPEALS NOMINEE: When you become a judge, you take an oath to look only at the law in deciding your cases, that you set aside your personal views about the circumstances, the defendants or anything else.

LEE: And California Supreme Court justice Leondra Kruger.

JUSTICE LEONDRA KRUGER, CALIFORNIA SUPREME COURT: I think we tend to forget when were in the outside world that, really, conversations about these very difficult cases are confined to a very small number of people.

(END VIDEOTAPE)

LEE (on camera): Now, all throughout the day, the White House has been asked repeatedly about this news. But, really, everyone from the president on down saying on message, essentially saying they are not going to comment on the specifics until Justice Breyer himself has announced that he is, in fact, retiring. Wolf.

BLITZER: I'm told he's going to do that at the White House together with President Biden tomorrow afternoon. They'll be speaking earlier. Breyer will be sharing the news with his colleagues on the U.S. Supreme Court. M.J., thank you very much.

Let's get to more now on the breaking news, we're joined by CNN Legal Analyst, Supreme Court Biography Joan Biskupic. Joan, you recently interviewed Justice Breyer.

[18:05:00]

You asked him about the pressure he was facing to retire. Let me play the clip. Here is what he said to you.

(BEGIN VIDEO CLIP)

BREYER: The truth I think is there's always -- you know you can always hope for your more mature self, which is there sometimes. This is a country in which every day I see this, in this document. But number one it's called freedom of speech. That's mean freedom of thought.

JOAN BISKUPIC, CNN LEGAL ANALYST: So, you think let them say what they want?

BREYER: I do believe that.

BISKUPIC: But are you really -- but you must be irked somehow? This must drive you nuts a little bit, right?

BREYER: If you can -- I mean, please. Was that --

BISKUPIC: I didn't mean to slip into an informal way of asking you a question, Justice Breyer.

BREYER: No, I am fine. I was thinking of Harry Truman, if it's too hot, get out -- the truth I think is, there's room (ph). You can always hope.

(END VIDEO CLIP)

BLITZER: So, given Breyer's hedging at that point, what do you make of his decision to retire now?

BISKUPIC: I think he's just given President Joe Biden a real hand here because he's aware of the politics of the situation. Wolf, you and I both know what his background is, having served in the Senate, served on the Senate Judiciary Committee, he understands the politics. He knows that the Senate hangs by just a one-vote majority for the Democratic Party. He was put on this court by a Democratic president. He wants to leave with a Democratic president.

And, Wolf, he also remembers what happened in 2020 with Ruth Bader Ginsburg, who did not leave when she was earlier pressured by fellow Democrats to step down while President Obama was in office and had a Democratic Senate, and in the fall of 2020, her death and the succession of Amy Coney Barrett made all the difference in the world to this court. So, that's kind of the backdrop of it.

But he's done two things here that are very important, Wolf, that people should be aware of. He is giving notice at a time that is earlier than any point in modern history, in January of a calendar year. The most recent time before this was 1993 when Justice Byron White passed word to President Clinton in March of 1993 and gave Clinton several months to put someone on the court. That was Ruth Bader Ginsburg, as a matter of fact.

So he's given President Biden plenty of time to get a successor through the process and he's done one other important thing. He said he will not leave until his successor is confirmed, and justices in recent years have not done that at all. The last time that caveat was in there was in 2005 with Sandra Day O'Connor.

BLITZER: So there will be nine justices, not eight.

BISKUPIC: Exactly.

BLITZER: All right, Joan Biskupic, thank you very much.

We're covering all the angles on this major breaking story with our legal and political experts. Let's discuss, Jeffrey Toobin, you've written an excellent book on the inner workings of the Supreme Court. Given everything you know about the court and about Justice Breyer, put his retirement into context for us.

JEFFREY TOOBIN, CNN CHIEF LEGAL ANALYST: Well, there's only 120 Supreme Court justices in all of history. So any time one leaves, it's a big deal. And all 120 or not one has been a black woman. So, we know that there will be historic replacement.

But, you know, Stephen Breyer was a liberal, but he was a particular kind of liberal. He was a problem solver. He loved to use the word, workable. You know, he was the father of the federal sentencing guidelines, which tried to make sentencing more rational and consistent.

He came out of working in the Senate at a time of great collaboration between the parties, bipartisanship. And that's the kind of court he wanted to be on. And I think one of the real stories of his tenure was that he wasn't on that kind of court, and it was a very polarized court on most hot button issues. And I think that was a source of frustration to him. And he's leaving a court that is really not the kind of court he ever wanted to serve on. BLITZER: You know, Laura, the president -- President Biden has committed to nominating a black woman to serve on the high court. The short list of contenders that's emerging feature some truly highly qualified potential nominees. Tell us about that.

LAURA COATES, CNN SENIOR LEGAL ANALYST: Many of whom, by the way, who could have been nominated at different points in their career as well. And I just want to reiterate the fact that it's not just that the president is committing to choose a black woman. These are phenomenally talented, capable, intellectual, revered advocates of the court with extensive experience. And that can never be lost. There's almost an embarrassment of riches in the bevy of choices that are available and frankly were available all along.

It's always been quite a disservice to think about, when people think about a black woman during a Supreme Court confirmation hearing, they think about the treatment of Anita Hill. They don't think about a people who could have been in the position to be nominated. And that's something as our society have to reconcile.

But it's also important to think about how these women will be compared to those who have been most recently seated.

[18:10:03]

I'm already hearing chatter about the idea, well, do any of the named people have enough appellate experience or judicial experience in this way. And I note that, of course, there's actually no qualification a Supreme Court justice even needs to be a lawyer, number one, and these are phenomenal ones at that.

But think about Amy Coney Barrett, a recent confirmed Supreme Court justice and her relative little experience in the appellate world, Justice Elena Kagan never having been a judge prior to being a Supreme Court Justice. And I can go on, but other members of the Supreme Court who have different experiences.

And so I think, I'm cautioned and looking at people and were thinking about this notion and saying I hope that these women will get a fare confirmation hearing, that their intellectual prowess will be on full display and politics and hypocrisy won't play a big role, particularly given the fact that, Wolf, several of them have already received bipartisan support at the so-called lower courts, albeit high ones. I hope nothing changes between that and the Supreme Court as well.

BLITZER: You know, Gloria, I know you've doing a lot of reporting on this. What are you learning about how quickly Breyer's successor could be named and then confirmed?

GLORIA BORGER, CNN CHIEF POLITICAL ANALYST: As fast as they can. It's very clear they want to take a page from the McConnell book, which was -- the latest was Amy Coney Barrett. It took 30 days from nomination to getting approved. And I think that from Chuck Schumer on down, the Democrats see absolutely no need to delay.

This really, in many ways, was not a surprise to the White House. We know that Justice Breyer had been deciding it. But they have said we want to name a black woman to the court and they probably had their list ready.

And so it is one way for Joe Biden to turn the page to say to black leaders, look, we really didn't get what we wanted on voting rights but I am going to do this and I am not going to stand down. And I was talking to someone today who has been involved in the past in such confirmations who said they want to have these hearings as quickly as humanly possible.

BLITZER: Yes. I'm sure they do. You know, Maggie, President Biden has been looking for a reset, as they say. How badly did the White House need this moment?

MAGGIE HABERMAN, CNN POLITICAL ANALYST: They needed it, Wolf. I mean, they clearly have had a significant slippage in the polls. They've been struggling legislatively, and Democrats are feeling disillusioned. This is the kind of thing that comes along in a term that changes potentially anyway that the way the sitting president's party is feeling about the party, about how the White House is doing and this is a galvanizing moment. You know, there are a couple of moments that can be galvanizing right now at a moment when negative partisanship is so intense. One would be former President Trump running again, a Supreme Court pick, given that Trump have three, certainly would be one and just given the conservative end to the court now.

So, I think this is significant for them. I also think that it's significant that, you know if the current president goes ahead with his promise to appoint the first black woman, there are a lot of black voters who are feeling disillusioned with this White House right now. And I think that the White House sees this as a reset there as well.

BLITZER: Maggie, how contentious do you think the Senate confirmation process could be?

HABERMAN: It could be very contentious, Wolf. I certainly think among Republicans it's going to be contentious. And you're seeing signals from Lindsey Graham and possibly other Republicans that they are going to not support whoever the pick is.

I think that the big question is going to be, obviously, for Chuck Schumer, keeping all Democrats on board, I think that this is frankly easy depending on who the choice is. But I think this is an easy moment for Joe Manchin and Kyrsten Sinema to play to the party's base when they are already seeing a lot of blowbacks based on, you know, standing against aspects of the president's legislative agenda.

BLITZER: Laura, what would it mean to finally see a black woman on the U.S. Supreme Court?

COATES: Well, what it would mean to me personally, I can't tell you what it would be like to see myself and the women who are being chosen. The idea of knowing just how often and how many times black women in this country have been told to wait our turn, as if we are not on equal footing or as if we're told that by virtue of any woman being there, you, too, should be satisfied.

We know about the distinction between the feminist and the womanist movement and we know the frustration of being told about black girl magic when it comes time to covet the vote of black women and then backs being turned when it's ultimately time to show up and show that you understand the power of our vote, the power of our minds and the power of what it means to have a representative bench in the United States of America.

[18:15:00]

The idea that we have had this notion of who is qualified to sit on the highest court in the land and not until now do we have somebody who is considering black women at the rate that Joe Biden, the president of the United States is talking about, that's a travesty. But it's also a time that's critical right now. And for all the young girls and young women and older women and people who have looked at this as a potential exercise in futility, I'm so thrilled that this will no longer be a fool's errand and they will actually, actually hopefully comply with what should have happened a long time ago.

BLITZER: Well said indeed. Gloria, how is this going to play out in the Senate?

BORGER: Well, as Maggie was saying, it's hard to say. I think that everybody understands that this is a historic moment in American political history and that you have not had a black woman on the Supreme Court. And I think every member of the United States Senate is probably going to think about that.

Joe Biden needs 51 votes. This is not going to be filibustered thanks to the new rules. And I think that every Democrat, if I had to guess, I would guess that Democrats would be very excited to go along with this. But make no mistake about it, this is a polarized and divided political atmosphere and something somewhere is going to pop up. But I think that when the dust settles, if Biden gets his nominee, you will look back on this and say that this is an important moment in American history.

BLITZER: You might get a few Republicans, like Susan Collins to vote in favor of the nominee as well.

BORGER: Exactly.

BLITZER: You'll never know. All right, guys, stand by. Thank you very much.

Just ahead, another major story we're following. Right now, we're getting new reaction from Ukraine to the United States response to the Kremlin's demand as the threat of a Russian invasion looms. Stay with us. You're in THE SITUATION ROOM.

(COMMERCIAL BREAK)

[18:20:00] BLITZER: Tonight, the United States is waiting for Vladimir Putin's next move after delivering a high-stakes response to Russia's demands on Ukraine. We're getting information.

Our Chief International Correspondent Clarissa Ward is joining us from Ukraine. Our Chief National Security Correspondent Jim Sciutto also working his sources here in Washington.

Jim, let me start with you. What is the U.S. message to Russia in this new letter?

JIM SCIUTTO, CNN CHIEF NATIONAL SECURITY CORRESPONDENT: In essence, Wolf, the message is here is what we're willing to discuss and here's what we're not willing to discuss. First, what they're not willing to discuss, one is Russia's demand that NATO swear off Ukraine's potential membership in the alliance. The U.S. making clear that it maintains what they call an open door policy, that any nation, if it is interested, can be considered. Of course, it would require all the members to then agree to it. But they want to make that clear. They also want to make it clear that Ukraine's border is not negotiable. They consider it a sovereign country, will not tolerate Russia's further incursion on those borders.

But they are willing to discuss and they allowed here is the possibility of arms control, medium range missile treaty or something that needs to be resurrected between these two counties, also, more broadly, a diplomatic path to end this standoff. The trouble is, Wolf, as the U.S. and NATO watch Russia during these talks, they have seen escalation of Russia's military buildup, not de-escalation. They want to see that change.

BLITZER: You have some new reporting, Jim, also, that the U.S. right now is preparing to send more troops to Eastern Europe in advance of a Russia invasion of Ukraine. Tell us what you're learning.

SCIUTTO: What's notable about this is that the U.S. and some of its NATO allies considering moving troops prior to any additional Russian aggression in Ukraine. The discussion here is to send groups, new deployments of about 1,000 personnel each to NATO allies on the eastern flank under consideration. The countries Romania, Hungary, Bulgaria, important here because those Eastern European allies are the ones most nervous about Russian aggression.

Another important point here, Wolf, is that there does not appear agreement across the alliance for this. So, this would be something of a coalition of the willing, half a dozen NATO members willing to support this as well as those Eastern European NATO countries willing to accept these forces and, again, before any possible Russian military action.

BLITZER: All right, very significant. Jim Sciutto reporting for us, thank you.

Let's go live to Ukraine right now. Our Chief International Correspondent Clarissa Ward is on the scene. Clarissa, there's new reaction, I understand, from Ukraine to the Biden administration's written response to Russia. What are you hearing?

CLARISSA WARD, CNN CHIEF INTERNATIONAL CORRESPONDENT: So, CNN has spoken to a presidential adviser here in Kyiv, Wolf. And essentially they are pleased with the written demands. This adviser said that they thought the U.S. was using the right strategy. He described the written statement as comprehensive, well thought out.

And this was also echoed by the foreign minister who also saw the documents, essentially leadership here in Ukraine really trying to present this almost as if they were part of the process, as if their needs, their concerns have also been reflected in this written document.

Of course, the question now remains how on earth does President Vladimir Putin respond to the document. Nobody here knows about that yet. And it's no secret, Wolf, that there's been some daylight between the U.S. and Ukraine in the last week, really primarily over issues of messaging, the Ukraine officials here have privately been frustrated at the U.S.'s messaging.

And we did see another inkling of that again today with the foreign minister reiterating what another official had said yesterday, which is that they do not believe at this stage, with the current number of Russian troops massed on that border, which is well over 100,000, and certainly a very large amount of troops.

[18:25:14]

But they do not believe that Russia has enough troops currently to launch an all-out invasion. And they are very keen to emphasize that point. They do not see the risk here of an all-out invasion at this point in time, Wolf.

BLITZER: Very interesting. All right, Clarissa Ward in Ukraine for us, thank you.

Coming up, there's more breaking news we're following, this time from Moderna. The company now says its current COVID booster shot provides durable protection against the omicron variant for at least six months.

(COMMERCIAL BREAK)

[18:30:00]

BLITZER: Breaking news. A new study shows the Moderna booster shot is effective against the omicron variant for at least six months, but the antibodies do wane over time, prompting the company to advance its omicron-specific booster to the next phase of clinical trials.

Let's discuss this and more with the former CDC director, Dr. Tom Frieden. Dr. Frieden, thanks for joining us. What do you make of these results from Moderna on its current booster shot? Are you reassured?

DR. TOM FRIEDEN, FORMER CDC DIRECTOR: Well, let's take the big picture here. It's really important -- sorry -- I'm getting feedback on this. I don't know if you're hearing me okay.

BLITZER: We're hearing you fine.

FRIEDEN: The vaccines are working remarkably well at preventing severe disease and death. It's crucially important that people who haven't yet started vaccinations, 60 million people in the U.S., get vaccinated. And if you haven't gotten your booster, get your booster. Get up to date with your vaccinations.

Bottom line, it's great that pharmaceutical companies are making new vaccines, but it's up to scientists and other doctors outside of the pharmaceutical industry to tell us whether we need them, when and how often.

BLITZER: When do you think, Dr. Frieden, Americans will start getting omicron-specific boosters? That Moderna is advancing that vaccine in the next phase in these clinical trials.

FRIEDEN: I don't know if this will ever be approved for Americans. And, really, I'm disappointed that a company like Moderna might be doing something like this and trying to adjust their market valuation by saying that many people may get this vaccine. Maybe yes, maybe no.

We're going to have to see what happens with omicron, with the next variant. We're going to have to understand more fully what happens with immunity for the average person, for people who are older, for people who have immune suppression. So, it's good that we're seeing more choices, but bottom line, get vaccinated today if you're not up to date with your vaccinations.

BLITZER: Yes, it's so, so important. Let me get your thoughts, Dr. Frieden, on a potential universal coronavirus vaccine, which Dr. Fauci said today, could be years away. Do you think that's attainable? What kind of impact would that have?

FRIEDEN: It's really important. If we could have a coronavirus vaccine that would handle any future variant, that would be enormously important and essentially taking this off the table in terms of a future devastating wave from a future variant.

Remember we've been trying to make a universal flu vaccine for several decades and an HIV vaccine for several decades, a malaria vaccine for several decades, and we're just beginning to see some progress in malaria of those three. So, I wouldn't hold your breath for a universal vaccine but it's certainly a goal worth trying for.

BLITZER: Cases are heading down at least in some parts of the country right now. What activities should vaccinated and boosted Americans feel comfortable doing, returning now to some sort of normal life? What do you think?

FRIEDEN: Wolf, I am more optimistic about the pandemic today than I have been since it was declared a pandemic nearly two years ago. In another few weeks, the omicron flash flood -- not a wave, but a flash flood, will have largely passed. And at that point, we don't know if there will be another wave, but we do know that we've got much stronger defenses than we've ever had. We've got better testing capacity, masking capacity, vaccination capacity, treatment capacity than we've ever had. So, we're in much better shape than we've ever been, but we do need to hang on for a few more weeks until the omicron flood recedes so we don't overwhelm the hospitals, which are already so stressed out.

BLITZER: Yes, it's so, so important. Dr. Frieden, thank you so much for your expertise. Thank you for joining us.

Just ahead, it's one of Russia's strongest weapons. And it's not a tank, it's not a missile. Now U.S. officials are worried Russia will use it on the United States as retaliation. Is the country prepared? We're going to break down this new threat. CNN's Fareed Zakaria is standing by.

(COMMERCIAL BREAK)

[18:35:00]

BLITZER: Tonight, as the United States tries to defer Russia from invading Ukraine, the Biden administration also is focused on another threat from Moscow could hit very, very close to home. CNN's Alex Marquardt looks at the potential for Russia do launch cyberattacks in the days ahead.

(BEGIN VIDEOTAPE)

ALEX MARQUARDT, CNN SENIOR NATIONAL SECURITY CORRESPONDENT (voice over): As Russia ratchets up its forces against Ukraine, it's not just troops, guns and fighter jets that have Ukraine and the west bracing themselves. Even before an invasion, Russia is expected to deploy one of their most formidable weapons, cyberattacks, not just against Ukraine but against the U.S. as well since it backs Ukraine.

JOHN HULTQUIST, VP OF THREAT INTELLIGENCE, MANDIANT: I think this is probably the most escalated situation that we've ever been in between the United States and Russia. I think that they are more likely to use this capability now than in many of the other conditions we've been in before.

MARQUARDT: The Department of Homeland Security warned this week in an intelligence bulletin obtained by CNN that if Russia feels that its national security is threatened, as it has repeatedly claimed, it could strike the U.S., something the White House said today it is prepared for.

PSAKI: There's no information we have at this point about any imminent threat against the U.S. Homeland. We are always prepared for cyber threats from a range of sources, and we have a range of tools at our disposal to use in reaction.

MARQUARDT: Already Ukraine has seen malicious attacks in recent days. The home pages of government ministries were hacked, replaced with a message, be afraid and expect the worst.

[18:40:05] Microsoft then put out an alert that destructive malware capable of wiping data had been find on dozens of Ukrainian networks including government agencies.

It's unclear whether Russia is responsible, as they were just a few years ago when power was knocked out in Ukraine and their financial system was attacked. Russian hackers have long been accused of targeting American water, power and nuclear sectors. Last summer, President Joe Biden said he told President Vladimir Putin that attacking critical American infrastructure was a red line.

BIDEN: I talked about the proposition that certain critical infrastructures should be off limits to attack, period, by cyber or any other means.

MARQUARDT: Now, that could be on the table.

HULTQUIST: They have surprised us again and again with their ability to cross what we thought were red lines. They have shown us some of the most important improvements in the space we've ever seen. They've carried out the most expensive attacks. They're the first ones to really turn out the lights that we know of.

(END VIDEOTAPE)

MARQUARDT (on camera): President Biden has warned that the U.S. would respond to Russian cyberattacks with its own cyber response. Now, Wolf, we've seen in the past year how damaging those attacks on critical infrastructure can be, like the one here in the U.S. on the East Coast that targeted the Colonial Pipeline, which is why the administration has been offering briefings to companies and really sounding the alarm about what may be coming.

BLITZER: And U.S. officials have said to me, the U.S. is very vulnerable in this area. Alex Marquardt, thank you very much.

Let's get perspective ring now from CNN's Fareed Zakaria. He's the Host of Fareed Zakaria GPS. Fareed, if this were to escalate, how much damage could Putin inflict potentially on U.S. citizens if he decides to target critical infrastructure here at home?

FAREED ZAKARIA, CNN HOST, FAREED ZAKARIA GPS: I think he could do substantial damage. I think our critical infrastructure is fairly vulnerable. Ted Koppel wrote a very good book about this many, many years ago, it's largely still true.

But I think it's worth pointing out that would be a very significant escalation. The Russians have not in any way indicated that that is the path that they're on. They have, in fact, downplayed the degree to which there will be any kind of actual military intervention. They, if anything, would think they have been more careful about not escalating.

The Biden administration has, I think, very appropriately and very shrewdly publicized all the range of possible things that Russians can do. So that, A, we are not surprised by them and, B, it sort to puts the Russians on alert that we know what they're capable of, we know where these things could go, false flag attacks, concocted stuff in Eastern Ukraine, cyberattacks in Ukraine, cyberattacks in the U.S. But I think cyberattacks in the U.S. would be at the very far end of what Russians are likely to do.

BLITZER: Ukraine, as you know, Fareed, is now praising the U.S. response at least today and they're saying and I'm quoting now, it's the right strategy. There are also some positive signs from talks today between Russia, Ukraine, Germany and France. Do you see an off- ramp right now for Putin at least potentially?

ZAKARIA: Well, the Ukrainian government is right, and I'm glad they have come to this after a little bit of tweeting back and forth. The Biden administration is handling this pretty well. It's a very complicated situation. What you have to try to do is a mixture of deterrence and diplomacy. You have to put up enough muscle so that you show the Russians that there are real costs, so you outline all the costs, and they have to be credible costs.

We are not going to be able to stop a Russian land invasion of Ukraine. The Russian army is the largest in Europe. So you outline all the economic cause. You try to make sure the Europeans are on board. But at the same time, you hold out the prospect of diplomacy.

I think they've gotten the balance pretty well. If you noticed, they're being attacked by the far right and the far left which may mean they've gotten that balance about right. But at the end of the day, this is Putin's initiative, this is Putin move, it's his escalation. And, ultimately, we can't tell what -- success would be if Putin decides, I guess I can't get all the concessions I want, but at least I can get some diplomatic overtures and some diplomatic process going and he backs down. The ball is in his court in that sense.

BLITZER: Yes, it is. Fareed Zakaria, thank you very, very much.

Coming up, the U.S. Justice Department confirms it's looking into former President Trump's plot to install fake electors. We are talking to a key member of the January 6th select committee. That's next.

(COMMERCIAL BREAK)

[18:49:22]

BLITZER: Tonight, there's mounting evidence about efforts to submit a false set of electors for the 2020 presidential election wrongly declaring Trump had won.

Our congressional correspondent Ryan Nobles is joining us with details.

Ryan, there's growing concerns about these fake electors and what laws were broken.

What's the latest?

RYAN NOBLES, CNN CONGRESSIONAL CORRESPONDENT: Yeah, that's right, Wolf. Initially, when this report first came out, many people just viewed it as a stunt by people that were the supporters of the former president in some of these swing states. But there's been a growing concern from officials not only at the federal level but at the state level as well that this could actually be a much bigger problem, one that could even perhaps be a violation of the law.

[18:50:01]

Jocelyn Benson, who is the secretary of state in Michigan, sent a letter today to the January 6th committee that he has additional evidence about these efforts for Trump supporters to put together these fake electors and attempt to file them in a way that would somehow allow Donald Trump to become the next president even though he did not win the election.

Now, Wolf, this is something that we learned this week has become of interest to the Department of Justice.

Listen to what one of the deputy attorney generals told our Evan Perez earlier this week.

(BEGIN VIDEO CLIP)

LISA MONACO, DEPUTY ATTORNEY GENERAL: Well, first, John, the issue you raised in terms of fraudulent elector certifications has been reported. We've received those referrals, our prosecutors are looking at those, and I can't say anything more on ongoing investigations.

(END VIDEO CLIP)

NOBLES: So it is significant that the federal government believes that there could be something here that could lead to a criminal violation, so much so that the Department of Justice would look into it. Now they have this additional information coming from Michigan, and other states. It shows, Wolf, that this is of great interest to the many people that are looking at the situation that was involved in peddling the big lie across the country if it was actually a crime -- Wolf.

BLITZER: Ryan Nobles reporting, thank you.

Let's discuss with a key member of the January 6th Select Committee, Congressman Pete Aguilar.

Congressman, let me begin with your reaction to this news that the Justice Department is now looking into these fake Electoral College certifications. How significant, congressman, is that?

REP. PETE AGUILAR (D-CA): Well, we think it's very significant, and we support the Department of Justice in their review of this. We'll stand by and let them do their work. But I think this is significant because it really shows the lengths to which the former president and people around him were going to go to continue to perpetuate the big lie, which led to the insurrection on January 6th.

BLITZER: CNN has also learned, Congressman, that a top aide to former White House chief of staff Mark Meadows, a man named Ben Williamson met with your committee yesterday. What kind of information do you believe he might have?

AGUILAR: Well, I'm not going to talk about the specifics of individuals who the committee has met with, as we've shared before over 450 witness interviews that we have conducted to date. The National Archives lawsuit that we won in the Supreme Court in which the former president challenged us, we were successful, delivered 700 more pages of documents that we will continue to go through.

But what we will say is that individuals like Mr. Williamson, and like Mr. Meadows are important. People who knew what was going on in the White House at the time leading up to January 6th, their story is important to share. The details are important to our work, and we're going to continue to do everything that we can to ensure that we can tell that full and complete story to the American public.

BLITZER: As you know, Meadows is facing possible criminal contempt of Congress charges. Have there been any further discussions with him about potential cooperation?

AGUILAR: Not to my knowledge. Right now, we have sent that material over. Obviously the Department of Justice, we will wait and see what the result is from the congressional contempt citation, by virtue of not showing up, he is in contempt of Congress. We passed that on the House floor and await the Department of Justice acting on it.

BLITZER: And, Quickly, when should we expect to begin to see public hearings from your committee?

AGUILAR: Well, I'll let the chairman talk a little bit more about that in the future, but I do think that later this spring, it's going to be important that we share the details of our work, and we continue to find important details that we want to share with the American public. We want to tell that story. We want to make sure we protect democracy, and I think later this spring, we'll have an opportunity to do that.

BLITZER: We'll look forward to those hearings. Congressman, Pete Aguilar, thank you so much for joining us.

We'll have more news right after this.

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[18:58:31]

BLITZER: Back to the breaking news, Justice Stephen Breyer's decision to retire from the Supreme Court.

I was fortunate to interview Justice Breyer back in 2015, not long after the high court's decision legalizing same-sex marriage. Listen to this.

(BEGIN VIDEO CLIP) BLITZER: You think this is not settled law, and eventually this question of whether same-sex marriage should be authorized all over the country is once again going to come before the justices of the Supreme Court.

JUSTICE STEPHEN BREYER, SUPREME COURT: What is settled law is what we wrote and how these issues play out on the margin is something I don't yet know. But I think there's a chance it might come out in various ways.

BLITZER: Some of the Republican presidential candidates are making a major issue out of this right now, and the Republican presidential debate that is about to take place, when they go ahead and say, you know, what, these are just five lawyers who are making this decision, and they can't -- they can't write laws, they can't make laws, they're going beyond the constitution. When you hear that kind of talk, what do you say?

BREYER: Every judge knows that many of the decisions that we make will be unpopular. We also know absolutely that since we are only human, they will often, perhaps not too often, we hope, but they may be wrong. If they're 5-4, somebody may be wrong, but eventually, a country, whether it's the United States or some other country decides, well, the benefits of a rule of law are worth it.

(END VIDEO CLIP)

BLITZER: Indeed they are. We're going to hear much more about Justice Breyer's legacy tomorrow. He will appear with President Biden tomorrow afternoon to formally announce his retirement, looking forward to that event.

To our viewers, thanks for watching.

"ERIN BURNETT OUTFRONT" starts right now.