Videos

Transcript:

Brooke: More breaking news we’re following today, the top Democrat on the House Intelligence Committee says it is time to subpoena former Trump campaign manager, Corey Lewandowski, and to enforce the subpoena of the former White House Chief Strategist, Steve Bannon. I’m talking about Congressman Adam Schiff. He wants to compel both of these men to testify in this House Intel Investigation into Russian election meddling. Lewandowski reportedly, informing Schiff that he will not voluntarily return to appear before his committee. So, let’s talk it all over with CNN Legal Analyst, Page Pate. He’s also a criminal defense and constitutional attorney. Page Pate, nice to see you.

Page: Good to see you, Brooke.

Brooke: So, just your reaction to Bannon trying to save what he has to say from Mueller and Schiff basically saying, you know, not so fast. What happens if Bannon and Lewandowski resist?

Page: Well, it’s a great question because we’re now seeing the congressional investigations play out in many ways the way we’ve seen some of the Special Counsel’s investigation play out. Because subpoenas will now be served and presumably enforced on these witnesses if they do not come to terms and voluntarily appear in front of these committees and produce whatever documents are being requested. Now, once the subpoena has served, the lawyers for Bannon, they can file an objection to that and it would eventually go to court for a resolution as to whether or not they actually have to appear and provide whatever documents are being requested.

Brooke: Okay. That’s those two guys. Let’s talk about the President. Because the latest, you know, sort of strand on the story of will he, won’t he talk to, you know, Bob Mueller or Mueller’s team, the special council, when they ask, they haven’t yet. You know, his lawyers are trying to avoid that potentially. But to me, what’s being overlooked here is the rationale to why Trump wants to talk to him from our reporting page, it’s because the President thinks he is a master at these sorts of things because of his experience with lawsuits and the fact that he has been in so many depositions.

Page: Brooke, I have represented many people, high level executives, political figures, never the President. But many people who were targets of a criminal investigation or a subject of a criminal investigation, and they think if they just had the chance, they could go in there and explain it all to the investigators, they could talk themselves out of being charged. That makes absolutely no sense, especially in a case like this. This is not the beginning of the investigation where the Special Counsel’s Office is simply trying to gather facts. They already have a lot of facts. The purpose for interviewing the President is to confront him with those facts. The missing link here in an obstruction investigation is the intent of the President. And the only way the Special Counsel’s Office really gets to that intent is to interview the President. So there’s absolutely no legal reason for doing it. Any lawyer worth his salt or her salt would never let the President go into an interview like that.

Brooke: So, you talked about all your different kinds of client who thought that they could go in and talk themselves out of it. And in this case we’re talking about the President. What do you think it is? Is it hubris?

Page: I think it is, absolutely, because what are you gonna do? Convince the Special Counsel’s Office that they’re wrong about whatever conclusions they’ve made? We don’t know what conclusions they’ve made, but they have absolutely reviewed a lot of evidence, they know things that the President presumably does not know about what other witnesses like Michael Flynn may have said during his cooperation with a special council. So, you don’t go into an interview and think you can have a man to man showdown when you don’t know what the other side has. There’s just a no-win scenario here for the President by going into a meeting like that.

Brooke: Okay. Let me play one piece of sound. This is from Congressman Trey Gowdy. He is blaming the Deputy Attorney General, Rod Rosenstein, for what he sees as Bob Mueller’s overreach.

Trey: I have fear that jurisdiction may wander a bit. I think it already has. It’s already wandered a little bit, but I would not blame Bob Mueller. I would blame whoever drafted the jurisdiction and the charter that empowered him. And if you look at it, it says matters that may arise from the investigation. What in the heck does that mean? I mean, is that a bank robbery in Topeka, Kansas?

Martha: And that language came from Rod Rosenstein?

Trey: Yes, ma’am.

Brooke: So, what’s the root of the message there, Page? Is that just, again, another example of trying to get out ahead and weaken the Mueller investigation?

Page: I think so, Brooke. Because now, if there’s an obstruction charge or a money laundering charge or something that arises out of the investigation, but is not directly related to the Russia part of the investigation, then you may have Trump and some of his supporters in the White House and in Congress saying, “Wait a minute.” This was something the Special Council was not even supposed to look at and because his direction was so poorly drafted and vague, he was able to, as Representative Gowdy said, “wander into these areas.” But, Brooke, that’s necessary for an investigation like this. We don’t know what evidence the Special Council is going to uncover during the investigation until the investigation is over. So, you have to give the Special Council some leeway to pursue those leads. And there’s always a check, always a check by Deputy Attorney General who can say no, don’t go there.

Brooke: Page Pate, thank you so much.

Page: Thank you, Brooke.

Transcript:

Interviewer: Bringing in CNN Political Analyst and New York Times Deputy Culture Editor, Patrick Healy. CNN Legal Analyst and Criminal Defense Attorney, Danny Cevallos. CNN Political Commentator and Senior Columnist for The Daily Beast, Matt Lewis. And Criminal Defense Attorney and Constitutional Attorney, Page Pate. Wow. This is some panel, beautiful.

All right, let’s first look at what can happen going forward, all right? Page, we have… They can appeal to and bank full bench, 11 judges, the full Ninth Circuit, they can do that. They can go back to the district court and try to have a hearing on the merits here and see how that goes. They could go to the Supreme Court and they’re gonna be some issues there, I want you to tell us about in terms of whether the court would accept this appeal or they could redraft the order. How do you prioritize those?

Page: Well, there are a lot of different options they can take, but in my opinion, there’s only one smart option. And I don’t know if the White House is really considering smart versus not so smart. But, the right legal move here is to simply let the case go back to the district court, to have a full evidentiary proceeding, go through some limited discovery, and really flesh out these issues, so that there can be a full opinion, not just on the standing issue, not just on whether the court has a right to review an executive branch’s decisions in this area, but also on the constitutional arguments.

Once you have a full district court order then you can appeal that. You can go through the process, go back to the Ninth Circuit, and then eventually up to the Supreme Court. If they try to take it to the Supreme Court now, I think that court will be reluctant to accept it because this case is in a very preliminary stage. All we had at the district court level was a temporary restraining order. It was treated like a permanent injunction, but that’s still intermediate. It’s not a final decision. So, I really think the case should go back to the district court, then let it work its way up through the system.

Allison: Okay. So, Page, do you think that that’s what the Ninth Circuit Court decided was where it sort of fell apart for them?

Page: Well, Allison, I certainly think that’s part of it, and I’m just amazed that that lawyer was not prepared for that question. It is the most basic part of their argument that they have to convince the court that this executive order should not be carefully reviewed by a court. But, the answer was somewhat inconsistent. First, he said the president should not have his orders reviewed by a court, but then recognized that there are constitutional limitations to a president’s power even in the area of immigration, even if the reason is national security. Obviously, that was an important issue for the court, we read about it in the 29-page opinion, and I think now, even back at the district court or wherever this case ends up, these judges have told them the way to win the case on standing.

Allison: Gentleman, thank you very much for all of the analysis. It’s really helpful. Great to talk to you.

Page: Thank you.

Transcript –

Christi: CNN Legal Analyst Page Pate is here. He’s a Criminal Defense and Constitutional Attorney. And this is important because there is a lot of gray area here. When does hate speech cross the line into a hate crime?

Page: I mean, we’re going to see, right? I mean, with all these protests across the country, we’re seeing that conflict in real time. The First Amendment protects hate speech, so a group can protest, they can talk about how they hate the Jews, they can talk about how they hate African Americans, entirely protected by the First Amendment. What is not protected is either violent conduct, like we just saw on the screen, people hitting each other, or threats of violent conduct. So, when speech crosses the line into a threat of some sort of imminent harm or danger, then you’ve got a potential problem and a potential crime.

Christi: Okay, so let me ask you this. There was an image last week that we saw of some the white supremacists that were getting ready to rally. They were holding guns and they were marching into, you know, their space there at the rally. Does holding a gun, which is their Second Amendment right, does that move into a criminal area in some sort as you talk about a threat?

Page: I think it can. When we talk about protecting freedom of speech, we’re talking about protecting the expression of an idea. Even if the idea is something we reject as the majority of Americans, you’ve got a right to express that idea. But what idea are you expressing when you’re giving hate speech? When you’re saying these things and you’re carrying a firearm? Are you really expressing a threat to the individuals around you who may disagree with your ideas? So if what you’re doing is threatening people, either directly or indirectly, that can possibly be a crime. It’s not something the Supreme Court has looked at before. They’ve protected cross burners. They’ve protected flag burners. But when someone has a firearm and at least says words that indicate they’re willing to use that firearm at that location at that time, that can be a crime.

Christi: That’s something different. You know, it’s interesting because the mayor of Boston had stated yesterday at a press conference he didn’t want to approve this and give this two-hour permit, but by law, he had to.

Page: That’s right. You know you have to, you can make them comply with the requirements of a permit, local ordinances, make sure it’s located in a particular area, it doesn’t disturb traffic kind of things of that nature. But you cannot discriminate based on the content of the message. So, if he’s going to give a permit to the counter protestors, he’s got to give a permit to the people who are with the alt-right or the neo-nazi’s as well.

Christi: So let me ask you this. If we would see a repeat in Boston like we saw in Charlottesville, is there at any point where the law would come in and say, “Listen, this particular group that is causing this problem.” Can they ban them from any sort of rallies for a specific time period or is it…look, it’s their free speech?

Page: RIght. I think that’s a possibility. I think if law enforcement and municipalities, if they can show a pattern of conduct, this particular group is not there to simply express an idea, they are there to cause violence. They are there to incite people to riot. If you can show a pattern of that type of activity, even though it’s very difficult to do under the First Amendment because you’re stopping speech before it happens. And that is always frowned upon by the Supreme Court. But if you can show one particular group is really bent on violence, bent on threatening people, and causing the type of problems that we saw in Charlottesville, then yes. I think a law that’s tailored to that type of activity would pass constitutional muster.

Christi: All right, Page Pate. Always appreciate boy, your insight in all of this. Thank you.

Page: Thank you, Christi.