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Facebook Oversight Board Upholds Trump's Suspension; Source Says, Rep. Liz Cheney (R-WY) Telling Allies She's Not Fighting Her Ousting; Judge Says, Barr Misled On His Decision Not To Charge Trump. Aired 1-1:30p ET

Aired May 5, 2021 - 13:00   ET


MAEVE RESTON, CNN NATIONAL POLITICAL REPORTER: It's a distraction from the pandemic and other big issues facing California, and that this is not the time for an expensive recall election, John.


JOHN KING, CNN HOST: This challenge as the incumbent is not to get caught up in this circus, but we'll watch as this one plays out. Maeve Reston, thanks for the reporting and insights. You'll stay on top of it.

Ana Cabrera picks up our coverage right now. Have a good afternoon.

ANA CABRERA, CNN HOST: Hello. I am Ana Cabrera in New York.

The ban stays. We begin with that long awaited decision from Facebook's oversight board and former President Donald Trump is still suspended from the world's biggest social media platform. Quote, the board has upheld Facebook's decision on January 7th, 2021 to restrict then-President Donald Trump's access to posting content on his Facebook page and Instagram account.

But there's a huge caveat. Facebook must review this move to permanently ban Trump within six of today's ruling. Remember, the social media giant made the initial decision to ban Trump the day after the Capitol attack, justifying it by saying he actively fomented the violent insurrection, spreading election misinformation, before, during and after the attack.

So let's bring in CNN's Donie O'Sullivan, who has been all over this story for weeks now. And so, Donie, for all the hype about this independent oversight board and for this massive first decision, haven't they just essentially kicked the can down the road here and punted the ultimate ruling back to Facebook? Doesn't that defeat the purpose?

DONIE O'SULLIVAN, CNN CORRESPONDENT: Absolutely. I mean, this, I think, is probably a nightmare for Facebook. Facebook went to all of these lengths to set up this board of purportedly independent experts, human rights lawyers, the former editor at The Guardian in London, a former prime minister of Denmark, and everybody was expecting them to either say Facebook was right or wrong in suspending Trump. But now, they came back and said, yes, you were right to do what you did in the immediate aftermath of January 6th, but in terms of suspending him forever, you guys have to figure that out.

So over the next six months, what we're going to see play out is a conversation and probably a lot of lobbying of Facebook from both Democrats and Republicans in terms of whether or not Trump would be allowed back on or not.

CABRERA: And let me add another voice to the conversation here, Assistant Law Professor at St. John's University Kate Klonick is with us as well. Kate, you called this decision elegant and excellent. I am intrigued. How do you see it that way?

KATE KLONICK, ASSISTANT LAW PROFFESOR, ST. JOHN'S UNIVERSITY: Yes. I mean, I just see this decision as such a breath of fresh air after the cacophony of only being able to talk about online speech through the media and through newsroom posts at Facebook.

And I just think that this is -- they set out a record. There are so much in this opinion from the way that they go through and apply international human rights standards and Facebook's own community standards. And the information that we get about the newsworthiness standard and public figure standards that seem to be kind of ad hoc measures, that we have known that for a long time inside of Facebook.

And so now Facebook is getting called out for that quite publicly and they are getting told to get their act together and I think that it is the best possible outcome for the world, honestly, and for talking about online speech and how sophisticated our conversations are going to be around online speech.

CABRERA: So what precedent did they actually set though, given that in a lot of ways, I think, people look at this and think that it's sort of just trying to have it both way, like, yes, the ban stays for now?

KLONICK: So the precedent here is -- I would call it almost a Marbury versus Madison type of moment for the board. They have made a number of decisions that are small and incremental but very important on user speech. But this is the first moment that we are seeing them really flex their muscles and say what their power as a board is going to be.

And so it actually has established that they have fact finding ability, that they can go to Facebookand demand and give Facebook a timeline in which they have to meet their demands, that they can audit basically the process around what Facebook does in taking down anyone, but even world leaders. And in I think that sense, it's not kicking the can down the road at all. It is very much starting to set up, slowly but surely, a procedure of how all of this is governed.

CABRERA: Donie, Trump has, of course, continued to push the election lie in interviews at Mar-a-Lago this week on his new message board. Do you think that factored into this decision?

O'SULLIVAN: Well, I think -- and first thing, I think Kate is right that the oversight board. [13:05:00]

It certainly does elevate the conversation in some way about what -- these are difficult decisions, right? These are -- on one side, you have Trump, who people say used the platform to incite a violent insurrection and never should be returned, at the other end, you have people who say, well, Mark Zuckerberg and Facebook should not have the power to deplatform the then-sitting president of the United States, no matter what he says. So this certainly, I think, elevates the conversation, but ultimately it puts the decision back on to Facebook.

And in terms of Trump last night, he did launch what Fox News called a communications platform. It is essentially just a blog page on his website. But Trump has threatened to set up his own social media platform but I think undoubtedly it would be better for Trump personally and politically to be on Facebook because he can also fundraise so much money through that platform.

CABRERA: On the other hand, Donie, does this just make Trump look even more like a martyr in the eyes of his supporters and further embolden them and elevate himself among them?

O'SULLIVAN: Well, yes. I think this is a lose/lose for Facebook, because no matter what they decide, they're going to get attacked from either end here, and it's a win/win for Trump, because if he's left off the platform, he can continue to cry censorship, fundraise off that. And, obviously, if he's let back on, then he can loom even larger in the Republican Party.

CABRERA: All right. Donie O'Sullivan, I appreciate that, as well as Kate Klonick, thank you for being with us.

Kate, before I let you go, do you see this going anywhere in terms of like legally being challenged?

KLONICK: Not particularly. I mean, it's not as if former President Trump has not been known to be litigious. And so there's always the possibility that if something gets challenged legally, but at least if he brings something like this in a U.S. court, I don't see a U.S. court deciding that Facebook can't just determine for themselves who gets to stay on their platform and who doesn't. And so I don't think this will go anywhere legally, but he can always try.

CABRERA: Yes. All right, Kate, thank you. Donie, thank you as well.

Now, let's turn to the dramatic leadership flight playing out in the House that prove that even without a social media platform, Donald Trump is still the leader of the Republican Party. The former president has just endorsed Congresswoman Elise Stefanik, a Trump loyalist, to replace Liz Cheney as the third ranking House Republican, calling Stefanik a, quote, far superior choice.

This comes as we learn that Trump has been directly involved in discussions about efforts to oust Cheney, which now seem likely to succeed. Two sources tell CNN Cheney will not fight the very public attempt to remove her. They say her calculations goes something like this, quote, it's not worth trying to keep the leadership position if it requires lying about the election or the events that transpired leading up to January 6th.

CNN Chief Congressional Correspondent Manu Raju is covering all of this for us live from the Capitol. Manu, what are you learning?

MANU RAJU, CNN CHIEF CONGRESSIONAL CORRESPONDENT: Yes, no question about it. Elise Stefanik is locking down support from all corners of the House Republican conference. She has privately told her colleagues in multiple phone calls that have happened over the past day or so that she has support from the moderates and the Tuesday group, the conservatives in the House Freedom Caucus, as well as the top two Republican leaders who are behind Cheney's ouster and are supporting the rise of Elise Stefanik.

Those leaders, of course, House Republican Kevin McCarthy and the House GOP whip, Steve Scalies, both of them have aligned themselves with Donald Trump amid the feud that Trump has had with Liz Cheney. Cheney herself calling out Donald Trump's lie that he won the election, something that Republican leaders believe her feud with Trump is a distraction in their efforts to take back the House majority.

An overwhelming sentiment among the House Republican Conference agrees with McCarthy, agrees with Scalise, and now is almost certain to endorse her, Stefanik's rise.

Now, what is critical going forward is that this vote almost certainly is going to happen on Wednesday. And what under procedure that House Republicans are going to move forward, I'm told, is to ensure that Cheney could be ousted by a simple majority via the secret ballot.

Now, the simple majority is important because the current process of the rank and file member were to force a vote, it would require two- thirds majority of the 212-member House Republican Conference, but a simple majority makes it almost certain that Cheney will not be able to have enough support to hang on.

And what we are told from multiple sources is that Cheney, indeed, is not whipping her colleagues to vote and support her. In fact, as she has told her colleagues, she's not worth lying about this. And, Ana, one source familiar with the matter told me that she is fighting this larger battle that is for the soul of the party and preserving the foundations of our democracy, not this leadership fight. Ana?


CABRERA: Oh, it just sounds like if that's the case, the majority of Republican leaders are going all in on the big lie. They are choosing lying over facts, and truth and democracy. Manu Raju, thank you for that report.

Let's dig in more on who Congresswoman Elise Stefanik is. CNN Congressional Correspondent Lauren Fox is in Washington. Lauren, what do we know about Stefanik, what appears to be the leading choice to replace Cheney? LAUREN FOX, CNN CONGRESSIONAL CORRESPONDENT: Well, I really think, Ana, she kind of embodies where the Republican Party has moved over the last several years. Early on in Trump's presidency and when he was campaigning to win the White House in 2016, she was someone who was not necessarily enthusiastic about Trump.

Instead, she often she said she would support the nominee for the Republican Party, but she was not an early someone you would consider a Trumper or an early Trump supporter. In fact, she was very closely aligned at that time with former House Speaker Paul Ryan.

Then when Ryan stepped down and McCarthy took the helm as the Republican leader for the conference, he really became close to McCarthy. And as you know, McCarthy and Trump are very close to one another, and Stefanik sort of became this figure during the very first impeachment trial that would often go out with members of the freedom caucus, like Jim Jordan, like Lee Zeldin, and really argue on behalf of Trump at every turn that she could. That's when she became much more aligned with Trump than she had previously. So she's really sort of had this larger transformation.

And what you have seen here is that she's not necessarily a textbook conservative in the same way that Liz Cheney is but she iss someone who currently has the support of Scalise in a public statement earlier today. Of course, that's the Republican WHIP. She also has the support of people like McCarthy, and now what you have seen of President Trump -- excuse me, former President Trump.

Next week, we expect that that is when this vote would occur. I'm also learning that Virginia Fox, who is a Republican congresswoman, is likely to bring that resolution in the private GOP conference meeting to oust Cheney. When exactly Stefanik would be put in her spot if Cheney is ousted, of course, it's still something that leadership is discussing, I'm told by multiple sources, Ana.

CABRERA: Lauren Fox, you're all over it, thank you.

President Biden was asked about the attempt to remove Cheney just a few moments ago. Listen.


REPORTER: Mr. President, do you have any comments on the efforts to oust Liz Cheney from the House Republican leadership post?

JOE BIDEN, U.S. PRESIDENT: I don't understand the Republicans.


CABRERA: I don't understand the Republicans, he says.

I want to bring in our Chief Political Analyst Gloria Borger. It's hard to make sense of politics most of the time, Gloria, but this is and especially a strange, I guess, situation that's developing. Let's just talk about where these women stand on conservative credentials for a moment, because you can't say Cheney doesn't really walk the party line the vast majority of the time.

The Conservative Union Foundation -- American Conservative Union Foundation is a group that sponsors CPAC, gives Cheney a lifetime rating of 78, while Stefanik gets a 43.5. So is there any doubt, Gloria, that this is about anything other than Cheney's very vocal rejection of Trump's big lie?

GLORIA BORGER, CNN CHIEF POLITICAL ANALYST: No. That is what this is about. I mean, I have talked to a bunch of House Republicans and they try and sort of take you off track and say, look, we let her stay the first vote we took on her, but now she's really annoying us because she's not being a team player.

And they talk about her in terms of team sports. And you have to, you know, go along and get along. And I think that's absurd particularly when the team doesn't want to acknowledge that there was a former president who still says the election was rigged and that is a threat to democracy.

She is playing on a larger tableau here. She is playing to history and playing about the future of the country and the constitution, and what she is to Republicans is inconvenient. She is telling them an inconvenient truth that they need in order to be a serious political party.

They need to deal with what happened in 2020 and say that is not what we believe. And they just want to go past it, because they want to believe -- they want to be in power, they want to win the House in 2022, so this is about power and not democracy.

CABRERA: Does tripling down on the big lie help them win the House? Like why does that give them an advantage in their minds?

BORGER: Well, in some parts of the country, it will, and in some parts of the country, it won't. And I am sure they have war-gamed all of this about how taking on Donald Trump, who does believe in the big lie and who talks about it every opportunity, taking on Donald Trump does not help them.

Paying fealty to Donald Trump does help them. So that is what they are going to do. That is why reporting is that McCarthy has spoken with Donald Trump about this, Donald Trump is trying to get rid of Liz Cheney in the leadership.


And so they're going to do whatever he wants them to do, because right now, this is his party and so they're going to listen to him and Liz Cheney is saying, you know what, I don't think we can afford to do that and survive as a serious conservative political party devoted to the Constitution.

CABRERA: I mean given that Liz Cheney was able to get the majority of support backing her, you know, a few months ago or weeks ago after the initial impeachment vote and now she's the odd man out and the circumstances have all changed, it almost feels like Trump out of office, off social media is more powerful now than he was back then.

BORGER: Well, he is certainly powerful. Whether it's more or less, it's kind of hard to say. But what I have been told -- I was just looking at some notes from a conversation I had yesterday, this person said to me, look, we are tired of this. She keeps reminding us about this and we don't want to talk about it anymore. We want to talk about Joe Biden. We want to talk about his agenda. She keeps bringing us back to a place where we don't want to go.

And she is saying, look, in order to be taken seriously as a political party, you have to say that was a lie. This is a lie. And people who believe that should be disqualified from running for president and should potentially be disqualified from running for political office. Except she serves with those people in the House and so her position has become more and more untenable because it is threatening them, it is threatening the people she served with.

CABRERA: What do you think? Is it possible we see Cheney pull a Justin Amash and headed to becoming an independent?

BORGER: I think she's way too conservative. She's not a libertarian. She is a conservative Republican, as those numbers you've showed prove, and she is a good spokesman, as a conservative, for conservatives in the party. So I don't see her, really, going in that direction.

CABRERA: Gloria Borger, good to see you. Thank you.

BORGER: Thanks, Ana.

CABRERA: A federal judge issuing a damning ruling against the Justice Department under former Attorney General Bill Barr. Why this judge is calling him out for withholding a key document concerning former President Trump.

Plus, President Biden announces his ambitious plan to have at least 70 percent of adults at least partially vaccinated by July 4th. Is that realistic with falling vaccination rates?

And an out-of-control piece of space junk is racing towards Earth, and experts don't know where it will land.



CABRERA: A secret memo from then-Attorney General Bill Barr protecting President Trump from obstruction charges is about to be made public. The federal judge says the DOJ document about the decision not to charge Trump with obstruction after the Mueller probe was misleading.

Judge Amy Berman Jackson writes, the agency's redactions and incomplete explanations obfuscate the true purpose of the memorandum. The fact that Trump would not be prosecuted was a given.

Let's get CNN Senior Legal Analyst and former Federal Prosecutor Elie Honig in here. Elie, it's well known by now how Barr distorted Robert Mueller's findings, but this is something new. Can you explain how this memo figures into the bigger picture?

ELIE HONIG, CNN SENIOR LEGAL ANALYST: Yes, Ana. So, two important things here, like you said, this judge joined the chorus of people who have publicly called out Bill Barr for distorting the Mueller report. That's significant, we already knew that.

Here's what is new. If you remember, Bill Barr received the Mueller report on a Friday, March 22nd, 2019, and two days, on a Sunday, he came out with his decision that he apparently had reviewed the entire 448-page, single-spaced, heavily footnoted document and concluded that Donald Trump was free and clear on obstruction of justice.

Now, a lot of people, myself included, looked at that and thought, no way. There's no way he possibly could have absorbed the whole memo, made a recent decision, this was already in the bag, Bill Barr did what we knew he was going to do all along.

It turns out there was a memo from the DOJ and DOJ tried to convince this judge that that not memo was actually the research that Bill Barr used and relied on. So he actually did, they argued, reaching sort of reasoned, careful conclusion. But it turned out that memo wasn't done until after Bill Barr had already reached his conclusion. It was really just an after-the-fact rationalization of what Bill Barr, the judge did not appreciate that. The judge said that DOJ was being disingenuous and misleading in the way it presented that memo. That's a big deal.

CABRERA: And I think the bigger issue here is what it says about the Department of Justice. They are supposed to be independent, right?

HONIG: Yes. Ana, I was always taught, even as a young prosecutor, that's all you have, is your independence, your credibility. I was taught every time you stand up in the well of the courtroom and have the privilege to say, Elie Honig, representing the United States, you carry the entire DOJ reputation in your hands.

Now, we're talking about -- forget about some young prosecutor like I was, the attorney general, who has now been repeatedly called out by federal judges, not just this one, for being dishonest with the American public, that's really hard to get my head around.

CABRERA: I have to do call (ph). You have your book that's all about Bill Barr and what he has done to the Justice Department during his time there, which is coming out in July, so everybody look for that.

But let me pivot now, Elie, to the FBI raid on Rudy Giuliani, because prosecutors are now seeking a special master to review the materials seized by the FBI agents who went in and used a search warrant on Giuliani's properties last week.


How is this process going to work and who benefits? HONIG: Yes. So, really, Rudy Giuliani benefits. He can't complain about this process. He will, I'm sure, but he doesn't have a legitimate complaint. What it means now is a person, probably a retired judge, will now review all the documents, all of the information that the feds pulled off of Rudy's phone, and that person will decide are these materials privileged, are they communications between Rudy as an attorney and some client.

And if they are privileged, then the prosecutors won't get that material and Rudy will have the right and the ability to object, so he will have his day in court, so to speak. That's the best way to do it. That's the fairest way to do it.

CABRERA: Elie, I have to ask you about a new development also in the Derek Chauvin case, the man convicted of murdering George Floyd. Chauvin's attorney has now filed a motion for a new trial claiming there was prosecutorial and jury misconduct in this case, as well as errors of law at trial and a verdict that is contrary to law. Those are quotes. Does this have any merit?

HONIG: I don't write this off as a frivolous or ridiculous motion. It's fairly standard stuff but it also does not strike me as a potential winner for Derek Chauvin. It doesn't strike that this is a real threat to the verdict.

To me, the biggest threat actually is the new information about the juror, which is not yet included in Derek Chauvin's motion. I guess it could be added. But that juror, the defense will argue, well, he lied. He said he never protested police violence but here we have this photo of him at this demonstration in D.C.

I think the prosecution's response there is a good one. They'll say, that is a Martin Luther King commemoration. That's not a same thing as a protest against police violence. And both sides had a chance to question this juror deeply and you, the defense, decided you were fine with him. So he really had nothing to hide and this is not a basis I would argue to overturn the verdict. So I don't think there's much of a chance of that happening.

CABRERA: Okay. Elie Honig, as always, I appreciate it. Thank you.

Now to the race to vaccinate, what if you already got your shots? Now what? If you are unclear about what you should or shouldn't be doing, you're not alone. We will break it down for you.