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The Source with Kaitlan Collins
Sept. 10 Debate In Doubt As Campaigns Battle Over Details; DOJ Tries To Revive Trump Docs Case, Defends Special Counsel; This Week: SpaceX To Send Four Civilians On Historic, Risky Mission. Aired 9-10p ET
Aired August 26, 2024 - 21:00 ET
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
[21:00:00]
KRISTIN FISHER, CNN SPACE AND DEFENSE CORRESPONDENT: --and so, in addition to this space walk, Anderson, one of the other things that this mission is going to be doing is these astronauts are going to be flying, into the radiation belt.
This is the first time that any humans have done this, since the Apollo astronauts, back in the 1970. So, it's a really risky mission. But all these astronauts say, they've been training for two years. They think they're ready.
ANDERSON COOPER, CNN HOST, ANDERSON COOPER 360: Yes. Amazing.
Kristin Fisher, thanks very much. Appreciate it.
The news continues. "THE SOURCE" starts now. See you, tomorrow.
PAMELA BROWN, CNN HOST, THE SOURCE WITH KAITLAN COLLINS: Straight from THE SOURCE, tonight.
We have some new reporting coming in, on the debate, over the debate, as Harris and Trump campaigns, while they're trading demands over mics and mute buttons, Trump threatens to pull the plug. The scheduled clash could be on the brink of collapse tonight.
Jack Smith versus judge Aileen Cannon, the Special Counsel's major move, tonight, against the Trump appointee, who threw out the classified documents case. What they're staring down tonight, at Mar- a-Lago. I'll speak to Trump's former attorney.
And it's never been done before. Four private citizens, getting ready to blast off into space, a history-making mission, this week, while two NASA astronauts stuck in space. Can you imagine? They're learning they won't hitch a ride home, until next year.
I'm Pamela Brown, in for Kaitlan Collins. And this is THE SOURCE.
Tonight, more drama over the upcoming debate. Donald Trump, and his Democratic opponent for president, are going back and forth tonight, over muting or unmuting microphones, when the other candidate is speaking, at the debate scheduled, just 15 days from now. Except this time, instead of the muted mics that President Biden demanded, back in June, the Harris campaign wants mics on, at all times. Perhaps it has something to do with bad memories, of the night Trump was kept muzzled, while President Biden imploded into his microphone.
Well, the Harris campaign says Trump should quote, stop hiding behind the mute button, so the Vice President can deal with his quote, lies and interruptions in real-time.
The Trump campaign says muted mics were the rules that they agreed to. Perhaps it has something to do with former President's allies trying to keep their candidate on message.
We'll ask for the candidate himself.
(BEGIN VIDEO CLIP)
DONALD TRUMP (R), FORMER U.S. PRESIDENT AND 2024 PRESIDENTIAL CANDIDATE: They also want to change the rules. You know, the deal was we keep the same rules. Now, all of a sudden, they want to make a change in the rules because she can't answer questions.
REPORTER: But do you want the microphones muted in the debate whenever you're not speaking?
TRUMP: We agreed to the same rules. I don't know. It doesn't matter to me. I'd rather have it probably on. But the agreement was that it would be the same, as it was last time. In that case, it was muted. I didn't like it the last time, but it worked out fine. I mean, ask Biden how it worked out. It was fine. And I think it should be the same.
The truth is, they're trying to get out of it because she doesn't want to debate. She's not a good debater. She's not a smart person. She doesn't want to debate.
(END VIDEO CLIP)
BROWN: Did you catch that? I'd rather have it probably on, the former President said, referring to the microphone. The Republican nominee undercutting, right there, the argument that his own campaign has been making all day long, and leaving us in suspense, wondering, is this thing still on. That is the looming question tonight.
So, let's get right to it with some of our sharpest political sources.
Democratic strategist, and CNN Political Analyst, Maria Cardona.
Romney campaign veteran, Kevin Madden.
And Washington correspondent, for The Atlanta Journal-Constitution, Tia Mitchell.
All right. Let's just take a step back and note where we are, in this -- in this campaign season, right? I mean, this is a pivotal stretch, we're entering. In just a couple of weeks from now, mail-in ballots will be sent out in the crucial swing state of North Carolina. We're heading into the fall sprint. And here we are, with the candidates squabbling over muted mics again.
I want to look at this video and get your reaction, from the Harris campaign. And we do want to note that the sound effects here are theirs.
(BEGIN VIDEO CLIP)
LAURA INGRAHAM, FOX NEWS HOST: Then why not debate her?
TRUMP: We'll wait.
(CHICKEN CLUCKING SOUND EFFECT)
TRUMP: But because they already know everything.
(CHICKEN CLUCKING SOUND EFFECT)
TRUMP: They'd say, Oh Trump's, you know, not doing the debate. It's the same thing they'll say now.
(CHICKEN CLUCKING SOUND EFFECT)
TRUMP: I mean, right now, I say, Why should I do a debate? I'm leading in the polls. And everybody knows her. Everybody knows me.
(END VIDEO CLIP)
BROWN: So clearly, baiting Trump there, with -- by implying he's a chicken.
So, what do you think? Is this debate going to happen?
KEVIN MADDEN, ADVISER, 2008 & 2012 MITT ROMNEY CAMPAIGNS: Well, yes, I think it's going to happen.
BROWN: You do?
MADDEN: But like, first of all, though, you're 100 percent right. I mean, nowhere in the polls out there do I see swing voters saying that they want to talk about mute buttons. They care about the economy, inflation, housing, immigration. And I think both campaigns, quite frankly, have wasted a day, talking about mute buttons.
But look, I think, also, the Harris campaign, with that video, is taking a little bit of a page from Sun Tzu, "The Art of War," and the strategy of if your opponent has a temper, seek to irritate him.
[21:05:00]
And I think that's exactly what they're doing. They're really trying to bait Trump into talking about anything, but some of the issues out there, and irritate him about debate and the mechanics of the debate. And I think because of that, he has a lost day of message. And quite frankly, he's the candidate, right now, if we look at the national polls and the swing state polls, who's behind. He needs to be talking about the issues that voters care about every single day. Today, a lost day.
BROWN: Yes. And to note to our viewers, we have a whole segment coming up on polling, and where the candidates are after the DNC.
But I also wonder, Tia, if this is also just underlines the significance of this upcoming debate. Everything matters, right? And we saw that with the debate with President Biden, right? I mean, look what happened after that debate. He stepped aside. Now--
TIA MITCHELL, WASHINGTON CORRESPONDENT, THE ATLANTA JOURNAL- CONSTITUTION: Yes.
BROWN: --Kamala Harris is the presidential candidate.
And you do have to wonder why the Harris campaign wants unmuted mics. Do they think it benefited Trump in that debate?
MITCHELL: Yes. I mean, I think it's clear that they think that they're learning a lesson from that debate, in Atlanta, in June. And that the muted mic benefited Trump. And that any time he wasn't supposed to be talking, we don't know what he said. We don't know what was said under his breath, or as an aside, or just out of turn. He was muted.
And at the end of the day, that was a terrible night for Joe Biden. But I think the Harris campaign thinks that it was made worse, by the muted mic. And so, they don't want to repeat that, and give Trump an edge by allowing him to be silenced, so that we don't hear everything he says during that hour, or 90 minutes.
The question is, who is going to cave first? Because I think both candidates need this debate. So, we don't need the debate about the rules. We need the debate.
BROWN: What do you think, Maria?
MARIA CARDONA, CNN POLITICAL COMMENTATOR, DEMOCRATIC STRATEGIST: I think that the Harris campaign is doing exactly what Kevin said. And Donald Trump is taking the bait. He's taking the bait.
And so, I think it does two things. It underscores what voters already feel about him, that he's thin-skinned, that he's petty, that it's all about himself, and that he then starts insulting Kamala Harris, which is exactly what he did in the clip that you showed. Every time he insults the Vice President, he loses votes. He loses votes from key coalitions of voters, young people, women, women of color.
And so, I think that this is something that the Harris campaign is doing very strategically. But I also think that they're asking for the mics to be unmuted, is also very strategic. It's not just they thought that that worked in Trump's favor.
It's that they see that perhaps if ABC does the same thing, that CNN, which is where the moderators aren't going to be seen, or aren't going to be tasked with fact-checking, right? Because it would be daunting, given Donald Trump lies every time he opens his mouth. Kamala Harris can do it. And if you have a muted mic, it is a lot more difficult to do that.
This way, she has control, not just over what she says. But if he starts spewing lies, which we know he will, she can jump in and say, Hang on, that's not true. Here are the facts, right?
And so, I think that it's very strategic on their part. It's not just something that they're doing to annoy Donald Trump. But clearly, that, I think is a side benefit of it, because--
BROWN: But you have to wonder though--
CARDONA: --he is annoying.
BROWN: --why did the Harris campaign agree to the rules, and then now they're saying, Actually, no, we don't want his mic muted, and that kind of thing.
CARDONA: Well, I think, originally, it was the -- the original rules, under Biden. But, yes, I mean, yes. Yes, of course.
BROWN: But the bottom line is look, the stakes could not be higher, right? And for our viewers may not know this. Trump and Harris have never actually spoken to each other before, right? So, this debate will presumably be the first time.
Harris has, of course, debated Trump's VP pick, Mike Pence, back in 2020, leading to this memorable moment. Let's watch.
(BEGIN VIDEO CLIP)
KAMALA HARRIS, VICE PRESIDENT OF THE U.S., (D) PRESIDENTIAL CANDIDATE: He said, Because the President wanted people to remain calm. So, I--
SUSAN PAGE, WASHINGTON BUREAU CHIEF, USA TODAY: Well, let's go back--
HARRIS: No. But Susan, I -- this is important. And I want to add but--
MIKE PENCE, FORMER VICE PRESIDENT OF THE UNITED STATES: Susan, I have to weigh in here.
HARRIS: Mr. Vice President, I'm speaking.
PENCE: I have to weigh in.
HARRIS: I'm speaking.
$400,000 a year.
PENCE: He said he's going to repeal the Trump tax cuts.
HARRIS: Mr. Vice President, I'm speaking.
PENCE: Well--
HARRIS: I'm speaking.
If you don't mind letting me finish.
PENCE: Please.
HARRIS: We can then have a conversation. OK?
PENCE: Please.
HARRIS: OK.
(END VIDEO CLIP)
BROWN: Is that the kind of moment VP Harris is rehearsing for, with Donald Trump, you think?
MITCHELL: I think, I mean, I do think Maria made a good point, about being able to fact-check Trump, because you're not sure how the moderators are going to approach that.
I do think she is able to get away. She's got some good one-liners, you know? And I think that's something, again, depending on what the rules are, she's -- she and her campaign and her strategists are going to have to figure out how they can work within the rules.
But the whole, I'm speaking, that, you know, became a moment for her, coming out of that debate. It showed her willingness to kind of go toe to toe, her willingness to kind of get a little sassy, if you will. But I think it played well in real-time. But again, that kind of thing won't go over--
MADDEN: Yes.
MITCHELL: --as well if you're muting microphones.
CARDONA: Yes.
MADDEN: I will say that--
BROWN: Right.
MADDEN: --Mike Pence is not Donald Trump. Mike Pence is a very--
BROWN: Yes.
[21:10:00]
MADDEN: --traditional. He approaches the debate in a very classical way.
Donald Trump is a bar brawler. He's a very asymmetrical fighter.
I think one of the things they may be thinking -- they may overthink this a little bit. And Donald Trump, without a mute button, could really control the tone, the tempo of that debate, in a way that might make it difficult for Vice President Harris, to really break through and pin him down. So, I don't think it's as necessarily neat or easy of a strategy that they're deploying here.
CARDONA: I think you're absolutely right about that. They cannot. And I think they know this. They cannot underestimate Donald Trump.
And just because they think they can get under his skin, which they can that that's going to hence make it easy for her to get her message through, and to break through. I think they know that, though. That's why they're so focused on practicing, on practicing again. Which is the Donald Trump that's going to show up?
Let's remember. This is a prosecutor going up against a 34-times convicted felon. I think this is something that she can really control. But to your point, she's going to need to be prepared for everything.
BROWN: Because I remember--
MADDEN: I think it's hard to practice for Donald Trump.
CARDONA: Yes.
BROWN: I mean, even with 2016--
CARDONA: I agree.
MADDEN: Yes.
CARDONA: Yes.
MADDEN: Yes.
BROWN: --against Hillary Clinton, I think that the Clinton campaign thought they had it in the bag, that, right?
MADDEN: Yes.
BROWN: When they were going into the debate. And--
CARDONA: Well -- well -- well but for--
MADDEN: Right. And they thought the split-screen would work for them.
BROWN: Right.
CARDONA: Yes. But I think for the most part, Hillary won those debates. I mean, she did well in the debates. It's the election she didn't win, electorally, at least.
BROWN: Electorally. That's right.
MADDEN: Yes.
BROWN: But I do -- I mean, but it was still, right, the debates can make or break an election. I mean, again, look what happened with President Biden.
CARDONA: Absolutely. Especially this one.
BROWN: So, you have to ask like, who has more to lose or gain in this debate.
MITCHELL: So, that's why I really do think both candidates need this debate. And that's why all this kind of going back and forth, about the rules mask the fact that both of them need to show up.
On one hand, you got Donald Trump. He's the one, who's losing momentum and needs a moment. He needs the earned media that a debate can provide, especially if he does well in the debate. He also needs to be able to say, he was able to go toe to toe with Kamala Harris, and show that he can hang with her.
And then, of course, Kamala Harris, she's faced a lot of criticism, for being very scripted, on the teleprompter, at rallies. And I think she has to show people that she's willing to put some meat on the bones, when she's talking about her platform, talking about what she wants to do, that she's able to explain it, when journalists ask her to explain, not just what do you want to do, but how are you going to do it, and how are you going to pay for it? So she needs this debate as well.
BROWN: Well, and I think it's, we can safely assume that Donald Trump will hit her on her policy positions. I mean, he's obviously trying to now call her Comrade Kamala, saying that she's a leftist.
MADDEN: Yes.
BROWN: And he is going to, most likely, call out her positions in the past, and where her campaign says they are now.
I want to take a look at some of those past positions like these.
(BEGIN VIDEO CLIP)
HARRIS: That's why we need to have Medicare for All.
(CHEERING)
(APPLAUSE)
HARRIS: We have got to have Medicare for All.
So, I am offering a Green New Deal that has been described as one of the most aggressive and progressive.
Here's the thing. Defund the Police. The issue behind it is that we need to reimagine how we are creating safety.
(END VIDEO CLIP)
BROWN: How does Harris respond to her shifting policy positions? CARDONA: I think the way she responds is by saying, on all three of those issues, she has massive accomplishments, under the Biden-Harris administration.
On the issue of the Green New Deal, there, she can focus on the kind of energy production that they have been able to accomplish, under Biden-Harris. It has been historic, right? We have never been at this level of energy production, here in the United States.
She can talk about Defund the Police. She can turn that around, and say crime has gone down under the Biden-Harris administration, and focus on the numbers that it was when Trump was in office.
And so, she has an answer for everything. And she can turn it back around, and say, let's remember where things were four years ago. The economy was in the toilet. Americans were dying because you, Donald Trump denied the science of COVID.
MADDEN: So, the real benefit that Trump has in this debate is that for 90 minutes, he's going to be able to sort of fill in the blanks, for all these swing voters, out there, on all of those issues, and all those past statements, in a way that 30-second ads could never do. So that's why the -- that's the real stake, that's really what's at stake, I think, in this debate coming up, is--
CARDONA: But she can do the same.
MADDEN: Yes, absolutely.
CARDONA: Yes.
MADDEN: But, I mean, I think this is one of those things, where we have a concentrated audience of swing voters, and this is probably Trump's best chance.
BROWN: All right. Well, we have 15 days until the debate is supposed to start. We'll probably be talking about this.
MADDEN: It's going to feel like--
BROWN: We'll be debating the debate.
CARDONA: Absolutely.
MADDEN: It's going to -- it's going to feel like a year.
BROWN: Up until then, right? I know.
MADDEN: Right.
BROWN: All right. Kevin Madden. Maria Cardona. Tia Mitchell. Thank you all.
CARDONA: Thank you.
BROWN: Just ahead. Searing words from Donald Trump's former National Security Adviser, H.R. McMaster, describing what he witnessed, in the Trump White House, what he just told CNN moments ago.
[21:15:00]
Plus, could the Trump classified documents case be reopened? Special Counsel, Jack Smith's new move against the judge who dismissed it.
(COMMERCIAL BREAK)
BROWN: Well new blistering details from Donald Trump's former National Security Adviser, H.R. McMaster, on what it was like to work under the 45th President.
In his new book, he recalls meetings in the Oval Office as, quote, "Exercises in competitive sycophancy." And he noted Trump would also suggest outrageous ideas, like bombing the drugs in Mexico, or wiping out the whole North Korean army.
Tonight, McMaster told CNN, this.
[21:20:00]
(BEGIN VIDEO CLIP)
LT. GEN. H.R. MCMASTER (RET.), FORMER TRUMP NATIONAL SECURITY ADVISER: The President is quite often very offensive, brash, says things that are outlandish.
He's an extremely disruptive person. I saw it, as my job, you know, not to try to constrain him, but to help him disrupt what needed to be disrupted.
COOPER: Would you work for a Trump White House again?
MCMASTER: No, I think, Anderson, I will work in any administration, where I feel like I can make a difference. But I'm kind of used up with Donald Trump.
(END VIDEO CLIP)
BROWN: Well, joining us now.
Former Deputy Assistant Secretary of Defense for Russia, Ukraine and Eurasia, Evelyn Farkas.
And Washington Post columnist, Josh Rogin.
Thank you all for -- both, coming on.
I just want to note. You've known H.R. McMaster for many years, and you served on an advisory board with him. So, I am curious what your reaction is, to his description of what it was like working for Trump. This is really the first inside look we're getting from him.
EVELYN FARKAS, FORMER DEPUTY ASST. DEFENSE SECY. FOR RUSSIA/UKRAINE/EURASIA: Yes, from him. Though, of course, we've heard from Mark Esper, who's on the Board of the McCain institute. BROWN: Of course.
FARKAS: We've heard from John Bolton. We've heard from other advisers to the former President. I think 17 of them have said he's not fit to be president again. They've called him dangerous.
And so, we're just getting more examples of why he was dangerous, or how he was dangerous, at a given point in time, and how stubborn he was about Russia, and this weird relationship with Putin.
BROWN: So, it's interesting because he retired or left the administration in 2018.
JOSH ROGIN, COLUMNIST, THE WASHINGTON POST: Right.
BROWN: I mean, why now? Why is he sharing these candid details now?
ROGIN: Right. I think it'd be more accurate to say he was fired, after a series of mean tweets, like many others in the Trump administration, after 13 months. So, when he says he wouldn't work for another Trump administration? I don't think that offer's on the table for H.R. McMaster.
BROWN: Yes, right.
ROGIN: I don't think he's going to be invited. I don't think John Bolton is going to be invited either. I think the second Trump administration would have a lot more of the Kash Patel, Mike Flynn, My Pillow Guy, kind of national security officials.
And so, he could say, I won't serve. But anyway, I think the reason that he didn't do this before, is because he was trying to preserve his reputation as a non-partisan, non-political historian. And now, he's made the decision that that is not as important as him telling the truth, about what he saw. So, I think he should be commended for that.
But as Evelyn pointed out, this is not new. Bombing the Mexican drug sources, and killing North Korean soldiers for no reason or -- is not so much different than nuking the hurricanes or any other--
BROWN: Yes, I remember that, yes.
ROGIN: --crazy thing that he's said.
FARKAS: Shooting demonstrators in the legs.
ROGIN: Right.
BROWN: I remember that. Right.
ROGIN: So, this is just a lot more to the story of lots of crazy thing that Trump says.
And as for the allegation that everyone is just trying to compliment Trump to get him to do what they want. Yes, we knew that already too. That's what Putin does. That's what his officials do. That's what senators do. And that's the kind of warped policy process that happens in a Trump administration. You ended up appealing to Trump's self- interest rather than the national interest. And even H.R. McMaster is not immune from that.
BROWN: And it's interesting, because he sort of notes that Putin was doing that appealing, to Trump's self-interest, and trying to win him over that way.
ROGIN: Sure.
BROWN: And that--
ROGIN: And it works.
BROWN: --Trump sort of fell prey to that. What did you make of--
FARKAS: Yes.
BROWN: --what he said?
FARKAS: Yes, I thought it was interesting, because H.R. said, I told the President not to send a congratulatory note to Vladimir Putin, because when Putin was reelected, of course, we all knew it was a fraud. It wasn't a normal election.
So, he said, That would be embarrassing, and you really shouldn't do that. The President insisted. But H.R. McMaster held the letter. And later, he told the President, I didn't send the letter. And he said, I was trying to protect you.
And I think, there, I think that H.R. should have said, Actually I was trying to protect America. I mean, maybe he was trying to protect Trump, the man, from being embarrassed. But frankly, not sending a letter was good for America. We should not be congratulating Vladimir Putin, a bloody dictator, who stole an election, for winning an election, because he didn't.
BROWN: I want to ask because, as you look ahead. Look, Donald Trump could very well win this next election, and there are many national security crises on the horizon, right? I mean, you have the Ukraine war with Russia, right now, speaking of Vladimir Putin.
And just today, Donald Trump said that Ukraine could cause World War III, and that he's someone who could prevent that. What do you think?
ROGIN: Right?. I mean, Trump and J.D. Vance have been very clear that they don't support further U.S. aid to Ukraine, under most circumstances. And that's a totally different position from Kamala Harris. That's a totally different position from the Biden administration, and from H.R. McMaster.
And this is part of a long series of sagas, between Trump and Russia, and Ukraine and Zelenskyy that we can -- don't have really have time to get into. But what you can be sure of is in a second Trump administration, the anti-Ukraine people will have the ball, and the pro-Ukraine people will be on the sidelines. And that's the flip of the first Trump administration.
And H.R. McMaster was, if nothing else, an adult in the room, OK? And that's a low bar for a National Security Adviser. But that's where we were, in the first Trump administration.
[21:25:00]
In the second Trump administration. there's no guarantee of any of that. And I think that spells disaster for Ukraine. If you believe, like Evelyn does, and like I do, that actually the most dangerous thing would be to allow Vladimir Putin to win in Ukraine, then that actually has a much higher chance of sparking World War III, than the opposite, which is defending freedom, and democracy, and human rights in Ukraine, which is something that Trump and J.D. Vance don't seem to care about at all.
FARKAS: And there's a greater risk that we would have World War III, that is to say, war between Russia and NATO, if Putin gets his way in Ukraine. Because he will be emboldened. He doesn't want NATO. He'll try to test NATO allies. He'll try to test our commitment to one another.
So, I think it's much more dangerous if we -- if we were to have a Trump administration that would let Vladimir Putin somehow roll over Ukraine, and win in that war.
BROWN: Yes.
FARKAS: That's far more dangerous.
ROGIN: And if we stop aiding Ukraine, it's not as if the Ukrainians are just going to stop fighting. They're going to keep fighting--
BROWN: Yes.
ROGIN: --whether we help them or not.
BROWN: They're just asking--
ROGIN: And that's the problem with Trump's plan.
BROWN: Yes, just -- just recently Zelenskyy asked to--
ROGIN: Is it doesn't make any sense.
FARKAS: Yes.
BROWN: --allies, to lift the restrictions on using Western weapons--
ROGIN: That would be good too.
BROWN: --into Russian territory. So, lots to discuss there. We're out of time. But thank you both, Evelyn Farkas, Josh Rogin.
And Trump's former National Security Adviser, Lieutenant General H.R. McMaster, will join me live, tomorrow, right here on THE SOURCE, at 09:00 p.m.
And new tonight. Special Counsel Jack Smith appeals a judge's decision, to toss out the Trump classified documents case, challenging her ruling as, quote, "Nonsensical."
A former Trump lawyer, who worked on the case, is here next.
[21:30:00]
(COMMERCIAL BREAK)
BROWN: Well tonight, Special Counsel, Jack Smith, is fighting back, after Judge Aileen Cannon dismissed the classified documents case, against former President Trump. Smith's team is asking to bring back the case, while defending the role of the Special Counsel.
Now remember, back in July, on the first day of the Republican National Convention, Cannon tossed out the case, ruling that Smith hadn't been appointed legally. On today's 81-page filing, Smith's team criticizes her decision.
My source, tonight, is Donald Trump's former attorney, in the classified documents case, Jim Trusty.
Hi, Jim. Thanks for coming on.
JIM TRUSTY, FORMER TRUMP ATTORNEY, FORMER DOJ PROSECUTOR: Sure.
BROWN: So, we should note, for our viewers. When you were Trump's attorney, you argued in defense of Trump, over the merits of that case.
But can you agree with Jack Smith's arguments, in his filing today, that Judge Cannon's decision, to dismiss the case, over his appointment, was quote, "Novel" and quote, "Lacked merit."
TRUSTY: Well, everything about the prosecution is novel. I wouldn't say it lacks merit.
Judge Cannon wrote about a 90-page opinion. It was very scholarly. I'm one of the few people that has no social life, so I read it. And when you look at it, it actually, it's a very interesting argument. It's very nuanced.
But it comes down to this idea that the appointments clause of the Constitution, which governs the idea of how Senate, the Senate, has to be involved in some of the appointments within the Executive branch, that that kind of trumps all other statutes.
And what we have with Jack Smith's brief, signed off on by nine different prosecutors, and probably the entire Appellate Division looked over it with a fine tooth comb. What they're relying on is U.S. v. Nixon from 1974 to say, Hey, there's a Supreme Court case that says it's OK for the attorney general to appoint an independent counsel, or they're saying Special Counsel. The problem is just that. The case involved independent counsel, which is a different bird, a different animal.
So, what we're looking at is essentially an argument by the defense that this is a legislative oversight. If they wanted to give permission, to the attorney general, to appoint a special counsel, all they had to do is have a statute.
And so, that's the difference between the 1970s and now. You don't have a statute that governs special counsel. I think it's a novel argument. It was actually former Attorney General Ed Meese that raised it, in an amicus brief, and it's finally getting some traction. And I don't think it's a laugher. I don't think it's an embarrassing argument.
BROWN: So, you mentioned the Nixon case. But Jack Smith and his filing made a broader argument. I mean, he mentioned that. He points to over a century of practice within the government, a 150 years of statutes passed by Congress that gives the attorney general, broad authority, to appoint special counsels.
Do you think, as you look at the broad evidence there, and the weight here, that it's more on Jack Smith's side here than Judge Cannon's side?
TRUSTY: Yes, look, I think it's a close call and it really, in real life, it comes down to your panel.
When you go before a circuit, like the Eleventh Circuit, in this case. And I think that argument will probably be towards the end of the year, early next year. You get three judges assigned randomly. And all of them bring different philosophies and different kind of attitudes to a case.
So, you're going to get three judges, that morning, basically, or soon before the argument, that are going to have the first whack at it. If you lose, you might ask for what's called an en banc, ask the entire Circuit, to rule on the same issue.
And I have to think, for something this momentous, this important to the case, and to history, that we're going right back up to good old SCOTUS, that the Supreme Court is going to get a petition, at least, and they'll probably hear this case eventually.
So, we're on a slower track than I think people imagine. But it starts with the briefing that began today. It will wrap up in about six weeks. And then, they'll set oral argument, and we'll see where it goes.
BROWN: Were you surprised that Jack Smith didn't ask for Judge Cannon to be dismissed from this case? TRUSTY: Well, what I've been surprised about is that they've had a really petulant tone, a really frustrated tone, in the pleadings, in the District Court. In other words, the things that they're filing with Judge Cannon, they've been increasingly nasty and belittling. And that suits the politics of the moment, pretty well, I suppose.
I don't remember them having any problem with judges that blew up executive privilege, or attorney-client privilege, when it came to President Trump. But when they have any scrutiny, and they start losing any of these battles, they've been pretty petulant.
I think they toned it down a bit, for this brief, because the circuits don't usually like to see that. They can be a little protective of the idea of a judge's impartiality. They're not going to be wild about a lot of kind of hyper-rhetoric. So, I think they've toned it down.
[21:35:00]
I don't know that there's going to be an avenue, for any sort of recusal, on this case, even if she rules against them again. But I think that would be brought up later, maybe back when it's in front of the Circuit, or once it clears the Circuit, when it goes to the Supreme Court. Or if the Circuit rules against Judge Cannon, they could inject it into the process, a little bit.
But I think they're going to have to take their lumps, for a little bit, with Judge Cannon, rather than think they have some sort of smoking gun bases to kick her off the case.
BROWN: I want to ask you, as a former attorney for Donald Trump's team, what you think about the fact that there are two federal cases, against Donald Trump, right, with the exact same constitutional argument.
Why hasn't the Trump team made this argument, to the other judge, in this case, Judge Chutkan? Do you think that they're judge-shopping here?
TRUSTY: Well, if they're judge-shopping, they need to get to a new grocery store, when it comes to D.C. I mean, look, you had Judge Chutkan, and Jack Smith, talking about a speedy trial, right, for the public, to hurry up and try this thing before the primaries were going -- or kicking in. So, no, they're not getting a lot of love in the D.C. court.
I think that motion will come. I'm not privy to what their strategies are. They obviously have this huge issue, lingering in D.C., on the question of immunity. And frankly, not to go too deep in this, but the ruling from the Supreme Court, about this idea of essentially official acts limited immunity, is really going to complicate Jack Smith's ability to go forward on the current indictment.
So, we're going to have this incredibly different unique kind of hearing--
BROWN: You're talking about the other case, correct? TRUSTY: --as to what stuff is immune?
BROWN: Yes. I mean, listen, and this is to say--
(CROSSTALK)
TRUSTY: Yes. Yes. The D.C. case, I think it could fall apart.
BROWN: Yes.
TRUSTY: Yes. But what I'm getting at is -- sorry, Pam. But, I mean, I think what I'm getting at is that case is snake-bit because of the immunity ruling.
It's got some real issues to deal with that's going to slow it down, possibly make Jack Smith go back to the grand jury, and re-indict, honestly. So, all of that bodes towards letting it play out, letting it die of its own weight, before you inject another argument about the special counsel authority.
I think it will come. They'll have to follow it at some point. But I think they've got other things that are keeping them busy.
BROWN: All right. Jim Trusty, thank you so much.
TRUSTY: Sure. Good to see you.
BROWN: And here with us, with more reaction to Jack Smith's filing, CNN Legal Analyst, and former federal prosecutor, Jennifer Rodgers.
So Jen, what do you make of what we just heard from Jim Trusty, and his viewpoint here?
JENNIFER RODGERS, CNN LEGAL ANALYST, FORMER FEDERAL PROSECUTOR: Well, listen, I like Jim. He's a former DOJ person too. But he was also a Trump lawyer. So, I'm not surprised to have him give so much credence to the Trump team's arguments here.
And I don't know that I disagree with him on all things. I mean, I don't know that this is a laughable position. But I don't think at the end of the day that Team Trump is going to win on appeal here.
There's just too much -- there's too much in what Jack Smith is saying, about the historical record here, about the statutory record, and about the Supreme Court's unanimous opinion in U.S. v. Nixon.
And I mean, Jim can say it's a difference between an independent counsel and a special counsel. But when you look at those actual positions, and the differences between them? There's really nothing there.
So, I think the unanimous Supreme Court finding that Congress did vest in the attorney general, the right to appoint a special counsel, in that case, the Watergate Special Prosecutor, I think that's going to carry the day. BROWN: It's interesting, because if you read through the Jack Smith filing, he also points out that the Trump team's argument, or Judge Aileen Cannon, for that matter, how it would -- it would raise questions about the hundreds of other appointments within the federal government, not -- right? Not just in this case, but in other departments as well the Executive branch, including the Departments of Defense, State, Treasury and Labor.
And so, would also raise the question how that would apply, right, to vacancies, right, for an acting U.S. Attorney, how their argument would apply to something like that?
What do you think?
RODGERS: Yes, I thought that was really a good argument that Jack Smith's team made.
And it's the sort of argument that doesn't get a lot of traction, necessarily, in the District Court, which is so concerned about the case in front of it. But it gets a lot of play, in the higher courts, because they're thinking about how expansive is this ruling, if we do this, how impactful is this going to be?
And the notion that inferior officers cannot be appointed to do things that are even semi-independent, across the federal government, would be a disaster. As you said, in all of these departments, you have inferior officers, who are appointed, pursuant to these statutes without having to be affirmed by -- confirmed by the Senate.
And so, it's not just a Special Counsel, Jack Smith, problem. It's not just a DOJ problem. If the Eleventh Circuit, and ultimately the Supreme Court, does what Trump wants them to do, it's an entire Executive branch problem. So, I think that was a good argument, and I think the Eleventh Circuit will consider that seriously.
BROWN: All right. Jen Rodgers, thank you.
RODGERS: Thanks.
BROWN: And up next, right here, on THE SOURCE. Donald Trump trying to throw cold water on his opponent's momentum, tonight, as Vice President Kamala Harris makes gains in the polls, and her campaign war chest.
[21:40:00]
A political insider, on the state of play, just ahead.
(COMMERCIAL BREAK)
BROWN: Donald Trump, in battleground Michigan, today, offered his take on where this race stands.
(BEGIN VIDEO CLIP)
TRUMP: I think they're doing very poorly. I'm leading in the polls. They had their, what they call, their little period of time where, typically somebody goes up. They didn't go up at all. We went up.
(END VIDEO CLIP)
BROWN: Several things there. Objectively, the Harris campaign is not doing poorly. Donald Trump is not leading in the polls. All signs, nationally, and in swing states, point to a margin-of-error race, at this point.
[21:45:00]
And Vice President Harris did go up in the polls. It may still be Trump campaign is predicting a two- to three-point bump for Harris, in the first round of polling, after a rousing convention.
My source, tonight, Editor and Publisher of Inside Elections, Nathan Gonzales.
So, if the election was held today, who would win this race?
NATHAN GONZALES, EDITOR & PUBLISHER, INSIDE ELECTIONS: I actually think Vice President Harris would win.
BROWN: Really?
GONZALES: Now, I agree that it is a -- it's a very close race. But let's say, if we go backwards a little bit, I think that we had a very close race, where -- but Trump was leading before the debate, before the June 27 debate. He was leading in the swing states, and he was potentially expanding the map into Virginia, New Mexico, Minnesota.
Now, the Vice President, Harris, is at the top of the ticket, the core of the battleground is the same, but we're talking about different states. North Carolina looks like it's a battleground, where it looked like Trump was running away with it. Florida could be a battleground. There was a poll, right before the convention, USA Today, that had it neck-and-neck. We'll see if that's an outlier, or a trend.
But I think that the momentum is with Harris. And that's why I think you would rather be Harris right now than Trump. But we're an evenly divided country, and I expect it to be close.
BROWN: Yes, a lot can change, right? We have seen so many twists and turns in this election.
North Carolina, though, interesting. The mail-in ballots are going out in just a couple weeks there. I mean, that's where we are, in this election cycle. It is heating up.
And the Trump campaign put out this memo, saying that there would be a bump for Harris, in the polls, but that it wouldn't stick. It pointed to historically what happens. But could this moment be different, do you think?
GONZALES: Well, that's a little bit of expectation setting. Of course, they want to set the bar high, so that if there isn't a bump, then it looks like she has -- that she has failed. I think the problem with looking at any poll is identify -- any movement in a poll, is identifying exactly what is the cause of it. Because, of course, we just had the convention, but we also just had RFK Jr. dropping out. And so, the polls that are going to come out over the next week or so are going to reflect not just the convention, but RFK Jr.
And I think that RFK, he was on the downward slide, and Democrats who were just -- who said that they were voting for him, had already gone to Harris. And so, I think RFK's support was still pretty Trumpy. So, he might get a little bit, a couple of points from RFK Jr. dropping out, so.
BROWN: So, you think that that can make an actual difference?
GONZALES: I think, in terms of there was some -- for voters that didn't like the two choices, that were just using RFK as a vehicle, for another candidate, that now that he's not an option, I think that Trump could benefit.
But I don't think RFK's endorsement really means, I don't think there are a sizable population out there who are just looking around saying, All right, I'm going to wait for RFK Jr. to tell me who to vote for. I think those people are those -- very small.
BROWN: I'm going to take a deeper look at this latest poll. We have the CBS/YouGov poll as the most recent look into the state of the race, before the DNC. They showed Harris with a very slight three- point lead over Trump, 51 to 48.
But as we expect to see this traditional post-convention bump for Harris, as we were just talking about the momentum she has, you're also hearing some concern from Democratic pollsters. Why is that?
GONZALES: Well, first of all, we have to be very concerned when we're looking at national polls. We do not have a national election in this country. We have an Electoral College--
BROWN: That's very important.
GONZALES: --state by state. It's part of what got everyone in trouble, in 2016. The national polls showed that Hillary Clinton was leading Donald Trump, and she won the national election. But that's not the election that we have. So, we have to remember not to redo that.
I think that some pollsters are concerned that, once again, Trump's support is being understated in the polls. The people, who say they're supporting Trump, are not -- either, they're not answering pollsters' calls, or they're not telling pollsters exactly what they are going to do. And that, once again, he will be -- he'll over perform where he is in the polls. It's possible. But I think pollsters have tried to, methodologically, try to handle that.
BROWN: I was going to ask that, because there's still a lot of skepticism, from people, about the polls, right, and whether they're accurate, because they saw what happened in 2016. Have pollsters been able to sort of remedy that?
GONZALES: Well, we'll find out in two-and-a-half months.
BROWN: We sure will.
GONZALES: Well, I think that they're trying, you know, they're trying to, it's not just live caller, get someone on the phone, because people aren't responding to calls. So, they're shifting some methodology to text-to-web. They're sending a text, and then have you answer a survey online, in order to get more of the population.
I think the best thing to do is to try to get as many data points as possible, and not just -- not just focus on any single poll, but look as many points as possible, in as many of the battleground states as possible, to analyze the trend, rather than just sticking with one poll.
BROWN: Speaking of, looking at the trend, and looking at all the data points, and also looking at 2020, right, what we saw then compared to now. At this point, in the 2020 election cycle, Biden was beating Trump by eight points, 51 to 43. And it was a very close race.
How concerned would you be if Harris returns a smaller lead than that in her post-convention bump?
GONZALES: Well, I think comparing Harris to Biden or Hillary Clinton, at this point, is difficult, because she's the Vice President, but she's still a fairly unknown quantity. She still has room to grow, in terms of being able to introduce herself to voters. We -- you know, Hillary Clinton had universal name ID. Joe Biden had universal name ID. So, they didn't have as much room to grow.
[21:50:00]
Harris, I think one thing we're learning about the polling, going back a few months, is it looked like Harris was unpopular, when in reality, people just didn't really know her, didn't know what job she was doing.
And now, the race is to define her. Democrats, last week, wanted to define her in a certain way. Republicans are trying to define her, as a California liberal. And that's really what the race is for voters, who were unfamiliar with who she was, and what she was doing.
BROWN: How many are undecided voters, are there still, at this point? I mean, how many voters are still on the fence, about who they're going to go for? And that--
GONZALES: I think we're talking--
BROWN: --and that note, how important is the debate?
GONZALES: I think we're talking about a very small number of people. A lot of people say that they're independent, but they really already know who they're going to vote for. So, I would put it in the still in the single digits, high single digits, potential people, who are truly up for grabs. And they probably are looking at the debate, or they'll get a look much closer to Election Day, say, How do I feel? Do I feel secure? Do I feel -- how do I feel about the economy? And do I want a candidate that is for change -- that is a change agent.
And right now, Harris is that change agent, because it's such a stark contrast to former President Trump.
BROWN: All right. Nathan Gonzales, thank you so much.
Well, history is about to be made, when four civilians blast off into space, for the first ever private spacewalk. And we just learned that launch was pushed back 24 hours.
An astronaut, who made history, with her space travel, is here with us next. You won't want to miss this segment. I've been looking forward to it all night.
[21:55:00]
(COMMERCIAL BREAK)
BROWN: New tonight. A private mission to space has just been postponed 24 hours. SpaceX pushed back the launch of Polaris Dawn to early Wednesday morning. Liftoff was supposed to be in just a few hours. The teams are now taking a closer look at some equipment.
Well, the mission is risky and it's historic. A billionaire, and three other private citizens, are attempting to travel further into space than any astronaut, since the Apollo missions, to reach the highest orbit around Earth ever, and also become the first civilians to take a high-risk spacewalk.
My source, tonight, is one of the few humans, who have been to space. Former NASA astronaut, Dr. Mae Jemison, who was the first Black woman in space.
Honored to have you on tonight.
Why do you think Wednesday's mission is highly ambitious and risky, especially for four private citizens?
MAE JEMISON, FORMER NASA ASTRONAUT, FIRST BLACK WOMAN IN SPACE: So, good evening.
There's a lot in that question. All space exploration, almost by definition, with humans, has a level of risk in it. And we can sort of see how that risk can be calculated, how you try to minimize it.
What's really exciting about what's happening with the Polaris mission, is the amount of information that's being taken, some updates in the EVA or Extravehicular Activity, or spacewalk suits. So, those are things that are incredibly interesting. And some of the things that are happening, when you talk about risk, are the fact that they're going through the, you know, one of this very high orbit, going through the Van Allen belt, and the radiation that they may receive, and really, really trying to understand how is that mitigated. There were a number of things that I understand had to be done to the vehicle itself, to sort of harden it to the radiation.
They're doing a spacewalk. It's going to use the same sort of means that happened in Gemini, where they're going to stay, have an umbilical and get all their life support system through that. So, it's a different kind of spacesuit than you see with the spacewalks that with the -- on Space Station, where you carry your own life support with you.
So, there are a lot of different avenues that are happening. So the risk is, hopefully, not to the crew, right? But perhaps to the amount of science that can be done. And so, it's going to be pretty exciting.
BROWN: Certainly. And you mentioned, going into space is risky, in and of itself. And we're seeing this play out with these two NASA astronauts, the ones who just found out they aren't coming home until February now.
They've already been stuck there for months. They've been there since June, I believe, at the International Space Station. And the Boeing Starliner can't bring them home now. Instead, they're going to have to wait for the rival SpaceX ship.
Do you think that NASA made the right call? And what do you think that's like for them up there?
JEMISON: So, the first thing, let's be really clear, they're up there with other astronauts, and the International Space Station have food, water (ph), and shelter, even ability to contact their family back and forth. So, it's not as though you're stranded on an island, with no communications, no way to get home.
So the difference is, is they thought they were going up, for an eight-day mission, and coming back down after doing sort of a testing out of this vehicle, the Starliner, as a first crewed mission on the Starliner. So that's a complete change of plans.
So, I can't really tell you how they're feeling. There's, you know, I think every day you're able to be in space, is probably a good day. Both Suni and Butch, Sunita Williams and Butch Wilmore, have been on the Space Station before. So, it's very interesting for them. We're going to see what will happen. But it's a really interesting time. I think--
BROWN: I want to ask you quick about--
JEMISON: --when you ask about the--
BROWN: Oh. I want to ask you quickly. My 6-year-old son asked, What's the food like up there? You got 10 seconds.
[22:00:00]
JEMISON: It's OK. It's freeze-dried. And you put water in it to plump it up.
But in terms of what's happening. The right call. The management looked at, what are the risks of what could happen with the vehicle. You never put the crew's life at risk--
BROWN: Yes.
JEMISON: --if you think there might be something they can't control
BROWN: All right.
JEMISON: So, of course, it's a right call.
BROWN: Mae Jemison, thank you. And thanks for answering my son's question.
Thank you for joining us.
"CNN NEWSNIGHT WITH ABBY PHILLIP" starts right now.
