Return to Transcripts main page
The Source with Kaitlan Collins
Trump Lawyer: Presidents Can't Be Prosecuted Even For Assassinating Political Rivals Unless Impeached & Convicted; McConnell Stands By Comments Saying Trump Not Immune From Accountability; House Armed Services Committee Launches Formal Inquiry Into Austin's Secretive Hospital Stay. Aired 9-10p ET
Aired January 09, 2024 - 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: That is apparently still under investigation.
That's it for us. The news continues. "THE SOURCE WITH KAITLAN COLLINS" starts now.
KAITLAN COLLINS, CNN HOST: And tonight, straight from THE SOURCE.
A historic showdown, over the central question, in Jack Smith's case. Does a President have sweeping immunity, from criminal prosecution, on anything they did, while in office? A deeply skeptical court turned incredulous, over a hypothetical question, about whether they could order SEAL Team Six, to assassinate a political rival?
Also, tonight, we now know why Defense Secretary, Lloyd Austin, has been in the hospital, for the last week. President Biden himself, just learning today that the Pentagon chief underwent surgery, after being diagnosed with cancer, as we also learned that he was under anesthesia, without his deputy being aware.
Also, tonight, on the 2024 campaign trail, Nikki Haley now within single digits of Donald Trump in the first primary state. The question is, does this make the case, for narrowing the GOP field? We'll ask our political experts.
I'm Kaitlan Collins. And this is THE SOURCE.
With just six days to go, before the first votes, in the 2024 primary race, Donald Trump was in a courtroom, in Washington, today, hoping to evade charges, for attempting to overturn the last election.
But the three federal appeals judges, before him, sounded deeply skeptical, about his lawyer's argument that he has absolute immunity, from prosecution, for anything that he did, while in office.
This case is not only potentially make or break, for Donald Trump, and the Special Counsel, Jack Smith. It could also impact future presidents, determining on how they rule.
The public could listen in on these remarkable arguments that were being made, which included moments like this one, with a striking hypothetical.
(BEGIN VIDEO CLIP)
FLORENCE Y. PAN, JUDGE OF THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT: Could a President order SEAL Team Six to assassinate a political rival? That's an official act, an order to SEAL Team Six?
JOHN SAUER, TRUMP ATTORNEY: He would have to be and would speedily be, you know, impeached and convicted before the criminal prosecution.
Y. PAN: But if he weren't -- but if he weren't there would be no criminal prosecution, no criminal liability for that?
SAUER: What the founders were concerned about was not
Y. PAN: I asked you a yes, no -- yes or no question. Could a President who ordered SEAL Team Six to assassinate a political rival, who was not impeached, would he be subject to criminal prosecution?
SAUER: If he were impeached and convicted first.
Y. PAN: So, your answer is no.
SAUER: My answer is qualified yes.
(END VIDEO CLIP)
COLLINS: Yes, that hypothetical that is being raised is pretty provocative.
But what stood out there was the answer, from Trump's attorney. That yes, even a qualified yes, as he put it, he is arguing that a former President could only be criminally charged, if he were first impeached and convicted by the Senate, while still in office.
The Special Counsel's team countered that by warning that it is a frightening future, if that is the case.
I should note that the former President was in the courtroom today. He did not speak though. But CNN's Evan Perez, who was also in that room said that at times, Trump was passing notes, to his attorney, while also nodding his head, at points, during the arguments.
He appeared before cameras afterward, where three days after the three-year anniversary of January 6th, the former President walked away, as a reporter asked him, to rule out potential violence by his supporters.
(BEGIN VIDEO CLIP)
DONALD TRUMP, 45TH U.S. PRESIDENT: This is the way they're going to try and win. And that's not the way it goes. It will be bedlam in the country.
It's the opening of a Pandora's box. REPORTER: You just used the word "bedlam." Will you tell your supporters now, no matter what, no violence?
(END VIDEO CLIP)
COLLINS: I'm joined now by three sharp legal minds, each bringing their own unique perspective, to today's proceedings. George Conway, Elliot Williams, John Dean.
Elliot, just to start things off, I think a question here is how expansively the judges could rule here, and really what this could mean, and also how soon we could know -- it seemed where they were leaning today. But how soon we could know what their decision is.
ELLIOT WILLIAMS, CNN LEGAL ANALYST: I think we could know relatively soon, in legal terms. Now, again, that's not news cycle terms. So, we may not hear it, tomorrow. But certainly, within days, if not weeks.
Something that people should know is that these judges have been preparing, for this argument, for weeks, perhaps even months. They would have had hundreds of pages of briefing, from the attorneys. So, they kind of might have had a sense going in as to where they were going to rule, and are really just sort of refining and figuring out what their opinion is going to say. So, I would be on the lookout for something within the coming days.
Now, in terms of how expansive it could be, exactly as your lead into this segment, noted, Kaitlan. It was pretty clear, listening to the argument, and having listened to a lot of these arguments, over the years, it was pretty clear that Trump's team did not have the judges, on their side.
Judge Pan's question, particularly on that hypothetical was just devastating, because they did not have an answer to it. And there cannot -- it cannot possibly be the case that attorneys -- pardon me -- that a former President could engage in whatever conduct he wished, and resigned the next day, and avoid any possible criminal exposure.
COLLINS: Well, yes.
WILLIAMS: So, yes.
COLLINS: And to that overall argument, George Conway, I mean, you've practiced law, as a conservative attorney, for decades. You've argued before the Supreme Court. You played a central role, in one of the key cases that defined the limits to presidential immunity. We could be in, for an entirely new definition, maybe here.
But I wonder what you made of this assertion, by Trump's team, that the only way, to hold a President accountable, for crimes, was to first have them convicted, in an impeachment proceeding, by the Senate?
GEORGE CONWAY, CONSERVATIVE LAWYER: Well, the short answer is what they were doing there, was taking a bad argument, their immunity argument, and conflating it with another bad argument, which is something based upon the impeachment judgment clause, and mixing them all together, in the hope of getting a stronger argument.
And what happened was the Trump attorney, Sauer, set a trap for himself that Judge Pan just completely, completely closed off. And she was -- it was an intellectual tour de force by Judge Pan. Not only did she highlight the extreme nature of their position that a president might not be prosecutable, for assassinating political rivals, she did something else.
His exception -- his attempt to explain well, you could hold the president liable, was based upon that impeachment judgment clause, and misreading it by saying that if -- you can prosecute a former President, if they were convicted by the Senate.
Well, the problem was that completely is inconsistent with their main position, which is the President is absolutely immune. And let me elaborate just a little more on that.
Their position that the President is absolutely immune from being prosecuted for official acts, it stems from the notion that -- which he repeated, Sauer repeated, over and over again, that we must be -- we have -- we have to be afraid that there'll be political prosecutions.
And then, he's taking this other position, which again, is nonsense by itself, but trying to mix it in by saying, but you could prosecute him, if the Congress, which happens to be the most political body, in the United -- in the Capitol, says you can.
So, what he's saying on one hand, he's saying we can't have presidents prosecuted, because apart -- because it could be political. And then, he's saying that the political Congress gets to decide. It made absolutely no sense. And I was there, in the courtroom. And it was just, it was devastating.
COLLINS: You were in the courtroom, today--
CONWAY: And it was just absolutely devastating.
COLLINS: --as these arguments were being made, George?
CONWAY: Yes, I was sitting way in the back. And -- but I could hear it, I could hear it pretty well, except for maybe Judge Henderson, whose voice was a little soft.
But I mean, it was absolutely, it was one of those moments, and I'm writing a piece, in The Atlantic, tonight, that should come out tomorrow, where, you know, before the -- it was like 10 minutes, into the argument, when Judge Pan just completely demolished Trump's lawyer. And you knew right then, you didn't have to hear anything else.
I mean, the lawyer, for the Special Counsel's office, could have just stood up there, and talked for five minutes, and nonsense, and sat down, and he still would have known that he won. I mean, the rest of -- the rest of the event was kind of anticlimactic, after those exchanges.
COLLINS: Well and--
CONWAY: -that she just played.
COLLINS: --the other argument was essentially what Judge Pan also brought up was -- I believe it was Judge Pan, that the question of how this goes with what we had heard, from Trump's attorneys, and different group of attorneys, albeit in his impeachment, actual -- the actual impeachment that did happen, on Capitol Hill.
I know that was a long time ago. So, I just want to remind people what it was that Trump's attorneys said then.
(BEGIN VIDEO CLIP)
BRUCE CASTOR, TRUMP LAWYER: There is no such thing as a January exception to impeachment. There is only the text of the Constitution, which makes very clear that a former President is subject to criminal sanction, after his presidency, for any illegal acts he commits.
(END VIDEO CLIP)
COLLINS: George, what did you make of that being brought up, by the appeals court judges, today?
CONWAY: It was terrific. I mean, it's always great when you can catch your adversary, taking one position, before one court, and then taking another, before some other tribunal. Here, it was the Senate. And then this, this federal court.
And it just shows the fundamental. I mean, they're just playing hide -- they're playing hide the ball, there. They persuaded the Senate to not convict him, on the grounds that you couldn't convict a former President. And then, and -- but they said, hey, you know, you can prosecute him criminally.
And in fact, on February 13th, 2021, Majority Leader McConnell said, you know there's a criminal law, in this country. He made clear that criminal prosecution was an option. And then, when the criminal prosecution comes around, they say, oh, never mind that, he was acquitted.
And the fact of the matter is a large number of the senators, who voted not to convict Donald Trump, in 2021, did so because for a purely technical reason that he's not president anymore. And they believed, I think incorrectly, but they believed that they didn't have the power, to bar him from holding future office, because he was no longer in office.
COLLINS: Yes, that was a point that they made. And John Dean, looking at this, there were a lot of -- there was a lot of historical context that was brought up, today, including your former boss, Richard Nixon. Obviously, you were the former White House Counsel. So, I wonder what you made of listening, given, you know Nixon's conduct as well as anyone, and what was actually happening, inside that administration, at that time.
There was this argument that that was, you know, that this was purely private conduct that was the -- by Nixon, that that was the argument that Trump's attorney was making today, is why that's not relevant to this case.
JOHN DEAN, CNN CONTRIBUTOR: Kaitlan, actually, they were raising a case that happened after Nixon had left office, when Fitzgerald sued Nixon, for firing him, and a couple cabinet officers, and other people, trying to make a civil case out of it.
And Nixon invoked the privilege, if you will, at that point that he was immune. And the Justice Department defended him. And they succeeded.
And we have the case of Nixon versus Fitzgerald, which is now being relied on by Trump, saying that he was doing nothing more than Nixon was. Very different situation. That was a pure civil situation. This is a pure criminal situation.
And then, your earlier point, about the impeachment thing, I think, is wonderful. Because the follow-up question the Judge asked, after referring to that earlier impeachment concession, was of today's lawyer.
And today's lawyer says, oh, well, it was -- it wasn't res judicata, meaning it wasn't -- it's not inapplicable today, in the words of the Latin law. And he said so because it was a different proceeding.
Well, they're relying on this proceeding as being something that bars future prosecution, because he's already been tried. They're trying to claim this is double jeopardy. So, they're all over the lot, Kaitlan, all over the lot.
COLLINS: So, I take it you weren't impressed with the way Trump's attorney argued in court today?
DEAN: Underwhelmed. I felt sorry for him, actually.
COLLINS: Do think that it means that they're going to rule against him?
DEAN: I am convinced they will. It would be -- it would be so stunning, for Trump, to succeed in this argument.
I think it's a makeweight argument, where they're just trying to get delay, delay, delay. They're going to go for the full en banc hearing of the entire D.C. Court of Appeals. Then, they'll lose there. Then, they'll go up to the Supreme Court. And they'll argue there. And pretty soon, months will have passed, and he hopes he's president, and can somehow magically erase it all.
COLLINS: Yes. They're aiming for a delay here.
And Elliot, you have worked across all three branches of government. You've been -- worked as a counsel in the Senate, multiple roles in the Executive branch.
When you look at this, was there ever this understanding, when you were there that to be -- to have a president be -- or to have someone being removed from office, that that would be necessary, before that figure, that President, could be criminally charged?
WILLIAMS: I am so glad you're asking me that, Kaitlan. Because, a big point underlying today's hearing was a gross misunderstanding, of the impeachment provisions, in the Constitution. And George touched on this a little bit earlier on.
The point of impeachment, is to ensure integrity of government and not punish people criminally. If one is impeached, they lose their job. That is the point of impeachment, to ensure that our government functions effectively.
The point of our criminal justice system serves an entirely different purpose in the country. It's -- the punishing people, deterring offenders, and so on.
Trying to graft one on top of the other, as Trump's attorneys did today, misconstrues, and, frankly, confuses the public, about what the point of impeachment is. The two have nothing to do with each other. It's a different type of proceeding.
And the idea, and again, touched on by Judge Pan, the idea that a president can engage in whatever, quote-unquote, official misconduct he wanted, and get away with it, simply by virtue of not being impeached, is just simply incorrect.
And the judges tip -- you never know what judges are going to do. But they did tip their hands today that this is one that I think they will be pretty clear unequivocal on.
COLLINS: Yes, it'll be so fascinating, to read their opinions--
COLLINS: --and their rulings, once that does come down.
George Conway, though, on the reverse side of this, the one thing that Trump's attorneys were arguing, and something that you've heard people, who maybe didn't think that his attorney did a good job today, but that is a legitimate point, is this question of Pandora's Box being opened, by this ruling.
Now, I don't have to get into how Trump himself is the one threatening retribution, threatening that Biden could be indicted, if he is back in the Oval Office. But is that a legitimate point that, as the judges themselves raised, how do they write this opinion without opening the floodgates here?
CONWAY: Well, first of all, I mean, as the lawyer, for the Special Counsel's Office said, there -- this hasn't happened in 200-plus years. It's not going to happen very often.
This is a highly unusual extreme set of facts, involving, in my opinion, a very, very disturbed individual, namely Donald Trump. And it's just not something you're going to see, probably in our lifetimes, again, a former President being prosecuted.
And the notion that somehow, he, this man, who was begging his former Attorney General, Bill Barr, to prosecute his political opponents, should somehow then get a pass, from his own criminal conduct, Trump's own criminal conduct, by arguing that somebody else might do what he wanted to do, but failed to do, is just, is just a little too much to bear.
COLLINS: It has a lot, for these judges, to have before them. We'll see what they decide here, and how the timing here could really be the most consequential decision they make. Period.
George Conway, Elliot Williams, John Dean, all of you perfectly positioned, to talk about this.
COLLINS: Thank you all for joining me tonight.
WILLIAMS: Thank you.
COLLINS: Of course, the question here is about the Trump argument, which is that the Senate has to convict a president, in order to pursue that legal prosecution. As you heard mentioned there, that is not what the top Republican, in the Senate, at the time said, the last time that Trump was being impeached. We'll have that moment for you.
Also, it is now finally been revealed why Defense Secretary, Lloyd Austin, is in the hospital, after a lot of secrecy, coming from the Pentagon. But still, more questions are being raised, tonight, with President Biden only learning today why that was, as Congress now says they will investigate this.
COLLINS: You listened in, as an attorney, for the former President, today, made the argument that no president, or former President, can be criminally prosecuted, for actions they took, while they were in office, unless they were first impeached, and then convicted by the Senate.
But three years ago, right after voting, to acquit Donald Trump, in his second impeachment trial, then-Senate Republican Leader, Mitch McConnell, disagreed.
Tonight, he was asked, about his comments, in light of the argument, made by Trump's attorneys, today. And this is what he said.
(BEGIN VIDEO CLIP)
SEN. MITCH MCCONNELL (R-KY): Impeachment was never meant to be the final forum, for American justice. We have a criminal justice system in this country. We have civil litigation. And former Presidents are not immune from being accountable by either one.
Let me say this about January 6th. I had remarks that I made, on February 13th, of 2021, about how I felt, about January 6. I recently reread it. I stand by what I said.
(END VIDEO CLIP)
COLLINS: He stands by what he said.
Here tonight, for more on that comment, Republican strategist, and former Communications Director, for the Republican National Committee, Doug Heye.
Also, with us, tonight, is former Obama White House Senior Policy Adviser, Ashley Allison, who also worked for the Biden administration.
Thank you both, for being here.
DOUG HEYE, CNN POLITICAL COMMENTATOR: Thank you.
COLLINS: I mean, that comment, from Mitch McConnell, saying he stands by what he said then. The judges brought that up today, saying well, at least the senators think that that is not the case, that this is actually the legal backstop.
But I mean, even if we do live in that world, where it is up to the Senate? With this Republican Senate, I mean, Donald Trump would never -- with the Republican Senate that existed then, he would have never been convicted.
HEYE: He wouldn't have been. I think that's part of the reason that Mitch McConnell said what he said initially, and why he's doubled down on it, now.
Ideological or argumentative consistency is not a strong point, for Donald Trump. It is for Mitch McConnell. Unfortunately, here, I think he doesn't necessarily represent the full Republican Party.
I'd say, I'm quite happy that I worked for Richard Burr, who did vote to convict Donald Trump, in the second impeachment trial.
But this is sort of the world that Donald Trump takes us to. The argument essentially, that Trump and his lawyers were made -- or Trump's lawyers were making today, that is, if a sitting president, say Joe Biden, wanted to assassinate a political rival, who might his political rivals be? That would be OK, if the Senate felt that it was OK. Clearly, that's not just wrong. That's clearly insane political theory.
COLLINS: Well, I mean, just as someone, who lives in Washington, I wonder that moment, yes, it is a hypothetical. I think that's really important. No one thinks that SEAL Team Six would actually follow through, with an order like that.
But the idea that that was the prospect that was raised, and this idea that it's up to the Senate, that body, to hold presidents accountable?
ASHLEY ALLISON, CNN POLITICAL COMMENTATOR: Well, it's an extreme example. But I guess I rewind, back to January 5th, and some probably thought that January 6th was never going to happen. And it was so extreme.
So, we're living in a moment, right now, in our country, with these extremes, and really being led by Donald Trump. So, I understand why the hypothetical was presented. Because the argument that the Trump counsel made was absurd. They had no answer to it.
I mean, we have guardrails in our country for a reason. And so, once you're out of office, you cannot just commit radical crimes that are not a part of the act of being President, and think you can get away with it. No person, including the President of the United States is above the law. And that is what this case and that hypothetical was getting to.
And obviously Donald Trump was in the room, today, for these arguments. He didn't have to be there. But he chose to be there. He clearly thinks this benefits him, politically. That was a political decision, I was told, for him to go there.
But Ron DeSantis, who's challenging him, for the Republican nomination, felt differently, about how this could hurt him, in the end, and Republicans later on.
This is what he told me, last week.
(BEGIN VIDEO CLIP)
GOV. RON DESANTIS (R-FL), (R) PRESIDENTIAL CANDIDATE: Clearly, it's had an impact.
But what I would tell primary voters is, whatever may be beneficial in the primary doesn't mean it's beneficial in the general election. And I think a 2024 election, where the Democrats get to run against a candidate that is going through all this stuff? That is going to give the Democrats an advantage.
(END VIDEO CLIP)
COLLINS: Does he have a point? HEYE: He does have a point. But it's a point that he and the other Republican candidates should have been making for months and months now.
HEYE: So, if we go back to the first or second or third indictment? We've had so many of them. What happens is the Republicans, who are running against Donald Trump, back him up. They use the same rhetoric that Trump uses, that there's a two-tiered system of justice, and things like that. So, nine days later, we see polling that shows that Trump hasn't been hurt by that. And we wonder why.
If Republican candidates don't give Republican voters a place to go, they're not going to go anywhere. And that's been consistent now, for the better part of a year.
COLLINS: I mean, what's the Democratic sense that it will -- I mean, they'll be able to say, well, Donald Trump has to be in the courtroom. He can't be out here making this argument today?
ALLISON: And also, that he's a threat to our democracy.
The point that I want to agree with, with Doug, is that, but Ron DeSantis isn't coming after Donald Trump, about the indictments. He's just saying it's going to be in a distraction. Not that he's wrong.
Nikki Haley is not coming after Donald Trump, because what he did on January 6 is wrong. It's just that it's chaos.
So, the Democrats have an opportunity, to go against the entire, almost entire Republican field, with that argument.
COLLINS: Because both of your analysis is so smart, we're going to bring you back, in just a moment.
COLLINS: We've got a new poll that has some really interesting numbers. I want to get both of you to weigh in on that. So, standby. We'll be back here, in a moment.
We also have this Trump argument that if he is not immune, then also President Biden, President Obama, President George W. Bush, they could also be charged, for some of their actions, while in office.
We're going to test that claim, with an expert, on the Constitution, and presidential powers, right after a quick break.
COLLINS: In court today, Donald Trump's attorney warned that prosecuting a former President would open what they warned, could turn into a Pandora's Box. You heard the question, the hypothetical one, that the judge posed, about a president ordering SEAL Team Six, to assassinate a political opponent.
But Trump's attorney also presented some hypotheticals of his own.
(BEGIN VIDEO CLIP)
SAUER: To authorize the prosecution of a president for his official acts, would open a Pandora's Box from which this nation may never recover.
Could George W. Bush be prosecuted for obstruction of an official proceeding, for allegedly giving false information to Congress, to induce the nation to go to war in Iraq, under false pretenses?
Could President Obama be potentially charged with murder, for allegedly authorizing drone strikes, targeting U.S. citizens, located abroad?
(END VIDEO CLIP)
COLLINS: Here to crack open that Pandora's Box, and examine the examples that Trump team, and also the judges offered up today, is University of Virginia law professor, and expert on presidential power, Saikrishna Prakash.
And thank you so much, for being here, Professor, because this is what you know, inside and out, and it's presidential power.
And so, just this question of, you know, yes, it was a hypothetical, and yes, it was provocative, about this SEAL Team Six order, that the judge raised. But I do think it gets to a good point, which is, what is the limit? How far does presidential immunity go here?
SAIKRISHNA PRAKASH, PROFESSOR, UNIVERSITY OF VIRGINIA SCHOOL OF LAW: Well, it's great to be with you, here tonight.
The Constitution itself doesn't confer any express immunities, on the President, with respect to criminal prosecution or otherwise. Nonetheless, the Supreme Court has recognized immunity from damage actions that arise out of the President's official acts. And that's based on the case Nixon versus Fitzgerald.
And essentially, the President's lawyers are trying to reason by analogy, saying that if the President is immune from damage actions, arising out his official acts, he should also be immune from criminal prosecutions. And the analogy only works if you think those two things are analogous.
Of course, other people will say that criminal actions are more serious, the interest at stake that society has are greater, and that there should be no immunity.
And that's the struggle that played out today in court. COLLINS: But it was also, not even just -- obviously, we talked about the civil, when it came to President Nixon, the idea of the criminal prosecution here, and what the extent of that is.
But the question that was raised by John Sauer, this idea of, of George W. Bush and the intelligence that was provided to Congress, before the Iraq War, could that be something he could be prosecuted for? Obama and drone strikes, raising that question.
I mean, does what Trump's attorney warned about here, is that a real warning, this idea that if this ruling here, denying Trump's claim, of presidential immunity, does that open the door, to other prosecutions, like that?
PRAKASH: Well, the way to think about it, Kaitlan, is you might think the door has always been open. And the President's lawyers are asking us to shut it.
That is to say, I don't think there was any sense, prior to this filing, that the President was immune from prosecution, for his official acts. And that there would be a trial. And he would have a defense that my act was legal, and therefore, I can't be prosecuted for it.
So, there's a -- you can describe it as a Pandora's Box. You could describe it as we didn't believe prior to this, that presidents ought to be prosecuted, for the acts that they took while in office.
You can go back to Lincoln, right? And Lincoln fought a Civil War. And presumably, there was damage done of various sorts. And people killed. Obviously, American citizens in the south, killed, because of the war. And no one sued him for it, partly because he had been assassinated.
But the more general point is, of course, presidents take official actions that will have bad consequences, for certain people, in society. And until now, there hasn't been this issue of a prosecution, because Nixon got pardoned, and because Clinton accepted a plea deal, from Ken Starr.
COLLINS: So, could this actually -- because Republicans obviously--
COLLINS: --and we've talked about previous attorney generals, Trump's attorneys general wanted. They had this expansive idea of presidential power, and presidential immunity.
Could this actually end up limiting the immunity that presidents do have, depending on how this ruling looks?
PRAKASH: It's possible. But no. I don't believe any administration has ever claimed that a president is immune from criminal prosecution, after he leaves office. I haven't seen that in any opinion of the Office of Legal Counsel, and the Department of Justice. So, they're trying to stake new ground.
And the way you phrase it almost makes it seem as if, we are taking power away from the President. But of course, another way of thinking about it is the President never had the privilege to begin with. And so, the court isn't really making any new law. It's just sort of announcing what has always been the case.
Again, I don't think anybody has ever said in writing that the President has official immunity, for his official acts. It's not that one can't come up with a reason for it, right? I mean, I think it's possible that some members of that court might believe that when the President's acting as Commander-in-Chief, maybe there is some need, for some sort of immunity.
The issue here is twofold. First, did President Trump act in his official capacity, for the acts in question? And if not, then there's no question that he's criminally liable, right?
There's only a question about official immunity, if in fact, he was acting as president, as opposed to as candidate. And only if you think he was acting as a President of the United States, when he took these acts, does the question of whether the Constitution has official immunity to all even come into existence.
COLLINS: That's a lot of good questions here. Saikrishna Prakash, thank you, for joining, tonight, with your expertise on this.
PRAKASH: Thank you.
COLLINS: Up next, we are now learning, from the Pentagon, today, an update and a briefing, on camera, as they now finally reveal the reason that Defense Secretary, Lloyd Austin, has been in the hospital.
And the big question, tonight, is why President Biden was not told that he had surgery, for the cancer diagnosis that he got last month, until today. Congress now asking those questions.
COLLINS: Tonight, the Republican chairman, of the House Armed Services Committee, says that he's launching a formal inquiry into Defense Secretary, Lloyd Austin's secret hospital stay, and the failure, by Secretary Austin, or those around him, to inform his bosses, about where he was, what was happening, for days.
That includes the President of the United States, who, we are told, learned today that Secretary Austin had been diagnosed, with prostate cancer.
That's not the only thing. The White House also says that it was unaware that Secretary Austin had gone under general anesthesia, when he had his initial surgery, after being diagnosed with the procedure -- for that procedure, on December 22nd.
(BEGIN VIDEO CLIP)
JOHN KIRBY, COORDINATOR FOR STRATEGIC COMMUNICATIONS, NATIONAL SECURITY COUNCIL: For whatever reason, I can't answer the question why. That information wasn't shared, wasn't shared widely in the department.
PETER DOOCY, WHITE HOUSE CORRESPONDENT, FOX NEWS CHANNEL: Isn't that worse?
KIRBY: And it certainly wasn't shared with the interagency.
DOOCY: You guys didn't know.
KIRBY: It's not--
DOOCY: Isn't that worse?
KIRBY: It's not good. It's certainly not good. Which is why again, we want to learn from this. We want to -- we want to make sure that it doesn't happen again.
(END VIDEO CLIP)
COLLINS: Pentagon chief was later readmitted to Walter Reed Medical Center, on New Year's Day, due to complications, from that prostate cancer procedure. He is still at Walter Reed Medical Center, tonight, I should note.
Joining me here, is the Ranking Member, on the House Armed Services Committee, Democratic congressman, Adam Smith.
And Congressman, thank you, for being here.
And obviously, I should say, first and foremost that as we talk about this story, we are wishing Secretary Austin a fast and complete recovery, from this. Obviously, this is something that affects a lot of men, not just here in the United States, but around the world.
But on the process here, on how this happened, do you believe that it's appropriate that President Biden just learned about this diagnosis, and what happened on December 22nd, today?
REP. ADAM SMITH (D-WA): Absolutely not. I mean, this is very troubling.
Let me say, I think Secretary Austin has done a great job, as Secretary of Defense. When you look at the coalition that he has put together, to defend Ukraine, the response to the Israel crisis, we're in a very, very difficult set of circumstances, for our national security. He's done a great job.
But there's really no excuse that I can think of, for not having informed the President, number one, that you had cancer, but certainly number two, that he was having the surgery, and that he was hospitalized. And that's the one question that we have to have answered. What did Secretary Austin think? I mean, why did he think that it was
OK not to tell the President? I mean, he -- Secretary Austin's number two in command of the military. President's number one. It's really important that he keep him informed. He didn't, in this case. And I can't imagine a plausible explanation that justifies that decision.
COLLINS: Yes, I think the question is how concerning it is, given the world that we're living in always, but right now, that on December 22nd, he's under general anesthesia. And just the idea of what could have happened that day, had there been something urgent that happened, either here at home or overseas?
SMITH: Absolutely. I mean, we have a clear chain of command. The Secretary of Defense has clear authorities, by the way, on a number of different areas.
He has the authority to decide, when to do strikes, in different parts of the world. So, if he's incapacitated, then he needs to pass that authority, clearly off to somebody else. And obviously, the President, the Commander-in-Chief, needs to know who has that authority, at any given time.
COLLINS: The House Armed Services Committee chairman, Mike Rogers, has launched a formal inquiry into this. They are asking for documents, to understand what happened here, the communications breakdown.
Is that an inquiry that you support, Congressman?
SMITH: Well, I don't think there's any question what happened here. I mean, at this point, it has come out. And you outlined it very well, in your lead-up to this story. We know what happened. I don't know that there's much of an inquiry or much digging that needs to be done.
We just need Secretary Austin answer the question. Why did he think that it was appropriate, for him not to tell the President, that all of this was going on? I think we do need to hear an answer from that. And I think the President needs to evaluate his relationship, with the Secretary of Defense, based on what happened, and based on that answer.
COLLINS: Does that mean that you think that he should potentially consider firing him?
SMITH: They got to have that conversation. I don't know. Like I said, the moment, I can't think of a plausible explanation.
I do also want to say that the Republicans, I mean they're going to make hay out of this, right? They're going to try to turn it in. I mean, they took four years, to figure out Benghazi, because they wanted to sort of cause problem, for Hillary Clinton, more than they wanted to get answers.
So, what I'm trying to do is get answers, and have a straightforward approach to this, not to politicize it. But I think in the short-term, we're going to need to hear from the President, what was the explanation he got, from Secretary Austin? Is he satisfied with that?
Because I do want to circle back to two points. One Secretary Austin's doing a great job, as Secretary of Defense. Number two, this is an enormously important time, in our country.
And as far as the resignation talk is concerned, we also have to factor in that the Republicans are trying to gum up whatever the President does, and we probably wouldn't be able to appoint a new Secretary of Defense. All of those things need to be factored in here.
But that's a conversation the President and the Secretary need to have. And the President needs to be confident in his Secretary of Defense.
COLLINS: A sobering conversation.
Congressman Adam Smith, thank you, for joining, tonight.
SMITH: Thank you, Kaitlan. Appreciate the chance.
COLLINS: And we are following some breaking news here, on THE SOURCE, news -- sad news, for the Trump family, as we have now learned that former first lady, Melania Trump's mother, Amalija Knavs, has died.
Mrs. Trump has confirmed the news, on social media, saying that her mother was a strong woman, who always carried herself with grace, warmth and dignity. She was entirely devoted to her husband, her daughters, her grandson, and her son-in-law.
The former first lady goes on to say, quote, "We will miss her beyond measure and continue to honor and love her legacy."
Our condolences, obviously, to the former first lady, at this difficult time, for her.
We'll update you, if we learn more about that.
Also, tonight, on the 2024 campaign trail, we are just days away, from the Iowa caucuses. And Donald Trump is ramping up his attacks, on his former United Nations Ambassador, now turned rival, Nikki Haley, as her momentum is building, before those first votes. A question of how much.
The question is, is she closing in on Trump, in the first primary state, and could narrowing the field make a difference? We'll share the numbers with you.
COLLINS: New CNN polling, out tonight, shows that Nikki Haley has pulled to within single digits, of former President Donald Trump, in the State of New Hampshire.
I should note, Trump still holds a significant lead, as you can see here. He has the backing of 39 percent of likely Republican primary voters, in that state, the second one to go after the Iowa caucuses.
But look closely here. Haley has 32 percent. That is the closest that she has been to Trump, in any of our polling, in any state.
The rest of the GOP field still lags far behind. You can see here, former New Jersey governor, Chris Christie, is at 12 percent. Vivek Ramaswamy at 8 percent. Governor Ron DeSantis, 5 percent. And former Arkansas governor, Asa Hutchinson, who is still in this race, but is barely registering with under 1 percent, in this poll.
Back here, again tonight, as I promised, Republican strategist, Doug Heye; and former National Coalitions Director for the Biden-Harris 2020 -- 2020, Ashley Allison.
Doug, these numbers, I mean, Trump still has a big lead. But what do you make of Nikki Haley gaining 12 points, since the last time CNN did this survey in November?
HEYE: I think it shows a lot of things.
One, she does very well, at debates and town halls. And she's been working very aggressively, in New Hampshire. We're seeing her go up in Iowa as well, potentially could beat Ron DeSantis in Iowa, where he's going on.
The other is that she's sharpening her attacks, on Donald Trump. She hasn't gone after Trump much in previous months. We're starting to see more and more of that.
And as she does that, I think people should remember, when she first ran, for Governor of South Carolina, she showed herself to have very sharp elbows and a willingness to use them.
As Trump strikes back at her, which he's doing? If she uses them more, we could have a surprise in Iowa. Not that Nikki Haley would win, but a good result, at the caucuses, for Nikki Haley, which would set her up very well, for New Hampshire. And it also means why would we talk about Ron DeSantis? Or the now non-existent Vivek Ramaswamy?
COLLINS: Well, I mean, clearly, Donald Trump has been worried, about Nikki Haley's gaining -- and his political team, her gaining in New Hampshire, because they're attacking her more and more, as you can see what they're spending money on.
ALLISON: Yes. I mean, granted the New Hampshire poll, you know, New Hampshire is really strong with Independents. And so, Trump is still leading a significant amount with Republicans.
But one of the things that I was thinking about, when I was looking at the numbers, is Chris Christie probably needs to drop out, for Nikki Haley, to win New Hampshire. But him being in the race, also is helping her climb, in the polls.
Because Ron DeSantis, and Nikki Haley are not attacking Donald Trump. But Chris Christie is. So, he's doing -- he's carrying some of the water for her. And while Republicans might not want Christie, to be the nominee, they are looking for an alternative. And so, I think his attacks on Donald Trump are also helping Nikki Haley.
COLLINS: So, that's interesting.
COLLINS: Because I think this is the first poll that we've seen, where if you combined--
COLLINS: --Nikki Haley and Chris Christie's support, it surpasses that of Donald Trump.
If we can show those numbers again, Donald Trump is at 39 percent. Haley's at 32 percent. Chris Christie is at 12 percent.
And so, the other point here, because I know if Governor Christie's watching right now, he'll say that that's not true that his voters would not do that.
But when you look at this, 65 percent of his supporters, who were surveyed, said that they would back Nikki Haley, in the primary, if he was not in the race. Does that make the argument against Chris Christie, if you're trying to avoid maybe Donald Trump being the Republican nominee?
HEYE: It potentially does. And it goes back to what -- when we showed Ron DeSantis, earlier in the show, where he said this isn't good for a primary. But it's really bad for a general election. This speaks directly to that, that Nikki Haley may be this person, who can bring in those Independents.
And Christie's numbers, a part of the problem that he has, in New Hampshire, is 60 percent of New Hampshire Republicans disapprove of Chris Christie.
So, his existence, at this point -- yes, he's a truth-teller on Donald Trump. But if his goal was to get rid of Donald Trump, at this point? And I don't like saying this, because I admire he's truth-telling. And I was in office (ph) Exit 7A, Shore Points, in New Jersey. It would be time for Chris Christie to go. If your goal was to get rid of Donald Trump, Christie can't exist anymore, if he wants to do that.
COLLINS: We'll see. I mean, we haven't seen him say yes. He says he plans on staying through the convention. We'll see if that's true.
Ashley Allison, Doug Heye, thank you both, for being here, twice tonight.
HEYE: Thank you.
COLLINS: Also, tonight, we are tracking this, extreme winter weather, across the United States. It is diverting the Air Force Two, carrying the Vice President. More on that, and what else is happening with the weather that is changing around this country, right after a quick break.
COLLINS: Tonight, more than 40 million Americans find themselves facing a severe storm threat. We have learned so far, there have been at least four deaths. Two of them happening in Alabama, one in Georgia, another in North Carolina.
The storm has been so disruptive, it caused Air Force Two, as it was carrying Vice President, Kamala Harris, to divert, to a different airport, in the Washington area, tonight, other than Joint Base Andrews.
A source familiar, told CNN that the plane encountered wind shear, and that was the reason for that diversion. Also, affecting other flights, for passengers, tonight, more than a 1,000 of them were canceled. So far, at least 6,000 nearly have been delayed, today.
Of course, we'll continue to monitor this storm, here, on CNN, and the effects of it. Continue to watch here.
And thank you so much, for joining us, tonight.
The news will continue, right now, with "CNN NEWSNIGHT WITH ABBY PHILLIP."