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Grand Jury Convened in Criminal Probe of Trump; GOP Rebukes, Dems Strive for Censure and Restraining Order on Greene; Woman Behind Bogus Arizona 'Audit' Defends Actions. Aired 6-6:30a ET

Aired May 26, 2021 - 06:00   ET


JOHN BERMAN, CNN ANCHOR: I'm John Berman alongside Brianna Keilar. On this NEW DAY, a dramatic new turn in the legal jeopardy facing Donald Trump. Reports that a special grand jury convenes to decide whether the former president and anyone around him will face criminal charges.


Plus, Trump tells the court he has absolute immunity and therefore can't be sued by House Democrats for the insurrection. Will that defense hold up?

BRIANNA KEILAR, CNN ANCHOR: And Republicans finally rebuking Marjorie Taylor Greene for her remarks about the Holocaust, but will she face any real consequences from Congress? There is talk of a restraining order.

And in Mexico, elected officials and political candidates keep showing up dead. CNN goes there as we cover the wave of assassinations.

BERMAN: Good morning to our viewers here in the United States and all around the world. It is Wednesday, May 26. The prosecutors are convinced they have a case, a case against Donald Trump. That's how one attorney reacted to a report in "The Washington Post."

The Manhattan's top prosecutor has convened a special grand jury, not just any grand jury, a special grand jury that could decide whether to indict the former president or anyone else associated with the Trump Organization. This is a major escalation in the legal jeopardy for the former president.

KEILAR: Investigators are looking at whether the company misled the lenders and insurance companies about the values of its properties as it sought loans and also if it devalued those same properties in an effort to pay more taxes. They're combing through millions of pages of documents, including Trump's tax returns. Those were obtained in February after the Supreme Court let a subpoena stand that sought the documents from Trump's long-time accounting firm.

BERMAN: All right. Joining us now, CNN senior legal analyst and former federal prosecutor Elie Honig.

Elie, great to see you this morning. What is this special grand jury, and what power does it have? ELIE HONIG, CNN LEGAL ANALYST: So the grand jury is one of the most

powerful tools that any prosecutor can have. Despite the name, it actually does not have that much in common with a trial jury. One of the few things they do have in common is they are both selected randomly from the general public, the same way you might get one of those dreaded jury notices in there. You can get a grand jury notice.

Now, this jury will be sitting for six months. That's what makes it a special grand jury. Usually, grand juries sit for one month. This one's going to be impaneled for up to six months. It could end earlier than that or the prosecutor can ask for permission to extend beyond that.

But that's a good ballpark figure for about how long this might take. The grand jury operates in secret. We will not know what's happening in that room. There is -- there will be no cameras if there. We will not get daily transcripts.

The hallmark of the grand jury is secrecy, and importantly, the grand jury has the power to issue subpoenas. Those require people to testify, require people to turn over documents. It's a very powerful aspect of what the grand jury does.

Now, a couple things about the grand jury. Of course, this grand jury has been impaneled by the Manhattan district attorney, Cy Vance. It is a one-sided presentation.

It's only the prosecutor, the grand jurors, and a court reporter. There's no judge. There's no defense lawyer. So it is extremely one- sided. You hear this expression the grand jury would indict a ham sandwich. There's some truth to that. It's not an adversarial process like you have at trial.

There are 20, up to 23 grand jurors in the room at a time, in contrast to a trial jury, which of course, is 12.

Now, in order to indict, you don't need all the grand jurors, right? You need a jury. A trial jury has to be unanimous to convict. All you need is the majority of the grand jury, 12 of the 23 grand jurors, and the standard of proof is way low, probable cause, that's down here, as opposed to beyond a reasonable doubt, which is the highest standard in our system.

BERMAN: So you have a lower bar to begin with. They're extremely persuadable by the prosecutor to begin with, and you only need a majority, which is why the saying goes, you could indict a ham sandwich. The special grand jury. Why would you call a special grand jury rather than just a grand jury?

HONIG: If you want a longer-term grand jury that's going to be able to absorb and make sense of a lot of information that you couldn't give them in, say, a day or a week or even a month.

BERMAN: What charges are they looking at here?

HONIG: So a lot of different financial related charges here. The main gist of the investigation appears to be on how the Trump Organization valued its assets.

The allegation or the belief is that, at some point, it would deflate the value of the assets when it came tax time, claim that their assets, including these, were worth than they're actually worth to reduce the tax bill.

At other times, they would allegedly inflate the value of these assets. If they were trying to get a bank loan, they would say, Well, we're solvent. We have all these assets. So please give us a bigger bank loan.

The grand jury also, apparently, is looking at potential tax charges involving Ivanka Trump. There was this very large payment, $740,000, from the Trump Organization to Ivanka Trump as a, quote/unquote, "consultant." While she worked there, there could be tax implications. And Allen Weisselberg is being investigated for possible tax issues, as well.

BERMAN: Evidence. What evidence are they looking at?

HONIG: So Michael Cohen, we know that he's been talking to prosecutors. He himself has tweeted and said publicly, I will be the star witness. Let's see. It's Michael Cohen. We'll see if that pans out.

We know that the D.A. has the tax returns. They went all the way up to the U.S. Supreme Court to get those tax returns. Plus, millions of other financial documents. They subpoenaed through an earlier grand jury evidence from Deutsche Bank, the primary loan lender to the Trump Organization.

And then very importantly, this one, we don't know yet, so I'm going to put a -- that's a question mark. Allen Weisselberg. If they can flip him, he is -- there's no evidence he's flipped yet. If they can flip him, he's the longtime chief financial officer of the Trump Organization. That's going to be critical. Watch and see if this grand jury subpoenas Allen Weisselberg or indicts him. And then watch and see if he flips. That's going to be key.


BERMAN: This is hugely helpful, Elie. Thank you so much.

HONIG: Thanks, John.

BERMAN: Appreciate it -- Brianna.

KEILAR: Maggie Haberman is with us now to discuss. She is a CNN political analyst and Washington correspondent for "The New York Times."

And Maggie, you have covered Trump for years, so I wonder, how do you think he's viewing this?

MAGGIE HABERMAN, CNN POLITICAL ANALYST: I don't think happily, Brianna. I think that Trump has been very, very frustrated and concerned about these investigations for several months even before he left the White House, but I think that those concerns have lasted in the last few months.

I think -- you know, I'm aware that Trump has been spending a lot of time at Trump Tower over the last couple of weeks since he left Palm Beach and returned to, ostensibly to club at Bedminster, New Jersey. But where he has been spending a lot of time instead is Trump Tower, and there have been lots of meetings related to these investigations.

Now, we know that Trump has a specific playbook he relies on, which is that he claims that everything is a witch hunt, and everything is political, and he has been doing this for years, even before he got to the White House. Certainly did it a lot in the White House. I think you are going to hear more of that in the coming days.

But people close to him all say he is anxious about this.

KEILAR: How would this affect his influence in the party or a potential run for him, even, in 2024?

HABERMAN: I think it is going to increase the likelihood that at minimum, Brianna, he's going to talk about running. Whether he is going to actually run, I think, is still an open question, whether he will be able to. He has said conflicting things to people around him about that.

But he issued a lengthy statement yesterday. It's the second one that he's issued related to the Vance investigation in the last few weeks. And one of the things that he said was, you know, it can't -- I'm paraphrasing -- it can't be a coincidence that there's a new poll showing that I'm leading the Republican primary for 2024. And then he claimed, I think, falsely, to be leading the general election, although I -- I have not seen that data.

But, you know, that's what he's going to claim, is that -- is that these people are going after him, investigators are going after him because he is still in the political limelight. And again, you know, he's always running, right? He has been running for six years. And so when you're always running, you're going to claim that everything that's coming against you is political.

But I do think you are going to hear him escalate his political behavior, in part because of this investigation.

KEILAR: How does this affect the business and also the rest of the family?

HABERMAN: It's a really good question, and I think in terms of the business, look, it certainly does not help their brand. And I think that's one of the things that the former president is frustrated by, to have the specter of this investigation and other investigations hovering over it.

I think, you know, he has talked repeatedly, and he said when he was in office, he says that his business took a hit when he was in office. So I think this is unhelpful to them. In terms of the family, look, his sons had been running the company

while he was president. He is now back. He is more involved. I think that the entire Trump family is concerned about these investigations and what it could mean, which is not to say, by the way, we have a sense of what -- what the investigations actually mean legally for his family. But certainly, it is of concern, because they are all involved in this enterprise.

KEILAR: Politico, and I know you've seen this report -- reporting, is saying that Trump is teaming up with House Speaker Newt Gingrich to try to win back House seats in the midterms. What do you think that they've been cooking up?

HABERMAN: So, Brianna, Newt Gingrich and Lindsey Graham, in particular, have been trying to get Trump to focus on something policy-related, something kind of, you know -- something along the lines of the Contract with America, which is what Newt Gingrich did in the 1990s, something that, essentially, Republican voters can point to and look at as a map for 2022.

And part of why they're focused on that is because they want to try to get Trump to stop focusing on the 2020 election. You know, half the statements that Trump issues, still in the last few days, have been about his false claims that the election was stolen from him or on these controversial, you know, audits that they are not showing what he claims they're showing and so forth.

And so I think this is an effort to try to move him past that, because it will help other Republicans in the midterms in 2022. Whether they will be successful, I think, is a real open question. Graham, in particular, has tried many different times to focus Trump's energy on policy, on something other than himself and on his sense of grievance, and he has been, you know, met with mixed success at best. We'll see how this one works.

KEILAR: Yes, look forward, not backward. Looking forward [SIC] may satisfy Donald Trump emotionally, but it's certainly very bad for his party. Maggie, it's great to see you this morning. Thanks for being on.

HABERMAN: You, too.

BERMAN: All right. Joining me now, New York Law School professor and former Manhattan district attorney Rebecca Roiphe.

Professor, you're quoted in "The Washington Post" as saying the fact of this special grand jury tells you, you think the prosecution thinks they have a case. Why?


REBECCA ROIPHE, FORMER MANHATTAN ASSISTANT DISTRICT ATTORNEY: Well, as Elie told you just a bit earlier, the standard of proof in the grand jury is quite (AUDIO GAP) -- you know, people joke about that ham sandwich. But prosecutors have a higher obligation. They have an ethical obligation to make sure that they're doing justice. And one of the things that that means is you don't get to that stage

unless you really believe you have a case. And especially in Cy Vance's office, Cy Vance has come out and said, We don't prosecute cases unless we think we have sufficient evidence to prove a case beyond a reasonable doubt to a jury.

So even though the standard of proof is low, the prosecutors themselves, I'm inferring, must have a sense that they've got a case against someone. And we should emphasize that we don't know who, but against someone.

BERMAN: The against someone part is key, and I hope people pick this up here. Daniel Goldman, who we're going to have on later on the show, pointed out, you know, it's hard to make this kind of a tax case against an individual like Donald Trump, who doesn't use email, you know, who could say, Look, my lawyers told me this was all OK.

So it could be a case against the organization, is that what you're saying?

ROIPHE: It totally could. And one other thing that I just wanted to point out is the New York grand jury is different from the federal grand jury in a couple of important ways.

One way is that you can't present hearsay evidence. Which means that the evidence you have to present is basically the same quality evidence you have to present at trial. That makes it harder.

Also, witnesses get immunity. So you really have to kind of build your case before you go in and be pretty sure. So that's another reason that I think that the office itself is fairly convinced that it has a case.

But, again, right, we don't know. It could be against an organization. It could be against some other individuals within the organization. We really don't know. And we won't know because of that grand jury secrecy.

BERMAN: The witnesses have to get immunity before the grand jury. What does that tell us about Allen Weisselberg, the CFO who has, we were told, all the knowledge of all the workings of the Trump Organization? If he testifies before the grand jury, then --

ROIPHE: Right. I mean, well, unless he's waived. I mean, of course, you could have a witness waive that transactional immunity, but transactional immunity is pretty big. It means you just can't prosecute that person for anything, the subject that he's testified about.

So if we see him testify -- I mean, we're not going to see, because it's secret.

BERMAN: Right.

ROIPHE: But you know, if that -- if that comes out in some way, I think that's a hint, possibly. BERMAN: We know that he, in theory, has taken the immunity and then

has something on someone.

ROIPHE: Right, right, exactly.

BERMAN: All right. Professor Roiphe, thanks for helping us understand this. Really appreciate it.

ROIPHE: Thank you.

BERMAN: So much more on this, including reaction from someone who's followed the Trump money trail for years and uncovered some of his taxes. Hear what he says about this news.

KEILAR: Plus, Democratic leadership talking about a restraining order against Marjorie Taylor Greene as she likens all kinds of minor inconveniences to the Holocaust.

BERMAN: And CNN confronts the person in charge of Arizona's bogus election audits.


KAREN FANN (R), ARIZONA STATE SENATE PRESIDENT: I don't know what's legit, what isn't legit, but why wouldn't we want to answer those questions?

KYUNG LAH, CNN CORRESPONDENT: You're just questioning democracy.




KEILAR: For five days it was crickets, and now the House Republican leadership is finally condemning Marjorie Taylor Greene's comments comparing mask rules to the Holocaust. There are also calls for Greene to be expelled from the conference, not from Republican leaders, to be certain, though.

CNN's Lauren Fox is here with the latest.

I mean, Lauren, yes, Republicans have said things here. Republican leaders have said things, but this is lukewarm, and it's late to the game.

LAUREN FOX, CNN CORRESPONDENT: Well, that's exactly right. I mean, it's been five days before they spoke out against what she had said.

And, you know, she doubled down yesterday. I think that's a really important factor. She went on Twitter, and she did not apologize in the morning about what she had said last week.

And this is what we saw from Kevin McCarthy. This is the statement. I want to read part of it. It says, "Marjorie is wrong, and her intentional decision to compare the horrors of the Holocaust with wearing masks is appalling. The Holocaust is the greatest atrocity committed in history. The fact that this needs to be stated today is deeply troubling."

He went on, of course, to call out House Speaker Nancy Pelosi for not calling out some of her Democratic members he argued were promoting anti-Semitism.

I think that, basically, what you saw yesterday was Scalise, Elise Stefano, McCarthy, McConnell all trying to clean this up. Because things have gone on for several days, and this was not going away, especially because, like I said, Greene doubled down.

KEILAR: It was wild that she -- which is what we've come to respect -- wild that she tweeted again about this. So what was it? I mean, that many days had passed. McCarthy seemed fine letting it stand. What was it that prompted him to finally say something?

FOX: Well, our colleague Jamie Gangel has some new reporting, Brianna, that sheds a little bit of light onto this. And one of the pieces of her reporting is that donors were calling McCarthy, asking him to do something.

And if you remember, McCarthy wants to be the speaker of the House in a couple of years, and the bread and butter for a speaker is raising money for your conference. If you can't do that or if donors get mad at you, that becomes a problem.

But he is walking a tightrope, because Marjorie Taylor Greene, of course, is closely aligned to the former president, Donald Trump, who is also key to McCarthy becoming speaker. So I think that there's a little bit of a balancing act. And that, I think, is why you are seeing Republican leaders really try to navigate this carefully.

But it's really tough when you have a member of your conference saying things when they are current members of Congress.

Remember, Marjorie Taylor Greene has gotten in trouble in the past, and some of the comments that she had made previously were before she was in office. That's when Democrats wanted to, you know, remove her from committees earlier this year.

This is Marjorie Taylor Greene making comments while she is an elected member. And I think that that is a clear distinction and something that Republican leaders are going to have to grapple with, Brianna.


KEILAR: So here's one for you that I have never seen before. Overnight, she retweets and then deletes one of her followers, who had called McCarthy a moron and a feckless "C" word. This must be the most humiliating job in Washington, the one that Kevin McCarthy holds. At what point is the humiliation of it just too much?

FOX: Well, I think we're going to have to wait and see when members come back how much backlash there is to Marjorie Taylor Greene. They're not here right now.

And I think that's making a little bit of a difference, because if they were, every reporter would be going up to every Republican member, asking them, What do you think? What do you want to say in response?

And I think the more Republicans stand up to Marjorie Taylor Greene, the more you're going to see her fight back, because she feels like she has the backing of the Republican base in some ways, and she probably does. Right? She's an elected member of Congress. There are people in her district who voted her into office. And I think that that is going to be the really tough balance when members return to Washington.

And I think we just don't know yet whether or not McCarthy might have to make a different decision. The options are semi-limited. There are Democrats who are moving to try to censure Marjorie Taylor Greene. And that is one potential option.

You could also expel her from the conference. That takes a two-thirds majority of the conference, however. I don't see that happening, Brianna.

KEILAR: Well, she's currently living in this kind of self-reinforcing bubble of Twitter, while she is away, but we'll see when she comes back to Washington if perhaps it's more of a rude awakening.

Lauren, great to see you this morning. Thank you so much.

BERMAN: A feckless "C" word?

KEILAR: Right? My goodness. Can you imagine anyone's boss putting up with someone endorsing that kind of comment? It is ridiculous.

BERMAN: Who works for whom? I mean --

KEILAR: That's a very good question.

BERMAN: If Kevin McCarthy, you know, in the grips of Marjorie Taylor Greene? It does beg that question.

KEILAR: Who's in charge?

BERMAN: Right. I mean, who's in charge? It seems that she is. And one other point I want to make, you know, Lauren was talking about expelling her from the conference. It requires a two-thirds vote. They only have those kind of numbers for throwing out someone who refuses to lie about the election.

KEILAR: Yes, exactly. Right? I was going to say, but it -- you're not going to get that when you look at the Liz Cheney vote. No way.

BERMAN: All right. Along those lines, this morning a deeply revealing interview that shines new light on the sham election audit in Maricopa County, Arizona. This is currently ground zero for people trying to promote the big lie about the last election. This "audit," air quotes, is being driven by the Arizona Senate president, Karen Fann, a Republican. She declined a dozen requests for an interview, but CNN's Kyung Lah caught up with her in the Senate parking lot.


FANN: I don't what's legit, what isn't legit, but why wouldn't we answer those questions?

LAH: You're just questioning democracy.

FANN: No. I'm questioning the integrity of the election system.

LAH: Which is about the backbone of democracy.

FANN: That's right. Which means we should have full, 100 percent confidence in our democracy and in our election system.

LAH: But we're talking about trying to disprove conspiracies.

FANN: If I have to, yes, why wouldn't we? If somebody says that something is out there, I would love to be able to say, That's not true, guys.

LAH: Aren't you raising more questions by giving rise to these conspiracy theories?

FANN: No. I'm answering questions. OK, so let me ask you a question.

LAH: Mm-hmm.

FANN: Are you 100 percent confident that every vote that came in in Arizona or any other state, or can you say emphatically 100 percent that no dead people voted, that ballots weren't filled out by other people, that the chain of custody from the minute people voted, their ballots, that the chain of custody was accurate and on target the entire time? Can you tell me that?

LAH: I can say that what the data shows us --

FANN: No, no, no.

LAH: -- is there was no widespread fraud.

FANN: No, no. I didn't say there was fraud.

LAH: But you just said chain of custody.

FANN: yes, chain of custody.

LAH: Dead people, these things are all fraud.

FANN: Well, I've asked you a question.

LAH: Uh-huh. FANN: Can you honestly tell me in all the states that no ballots from

people that are already deceased were not filled out and sent in?

LAH: I can tell you that what the data has shown, overwhelmingly, is that election -- this was the most secure election in American history.

FANN: OK. But you can't answer that question, either, can you?

LAH: I'm answering it. I'm telling you that --

FANN: No. You're telling me what the data says. I asked --

LAH: The data is what we should be driven by.

FANN: First of all, when we talk about transparency, from day one the entire process has been livestreaming. So anybody --

LAH: On OAN, with cameras controlled by OAN.

FANN: Are you saying that OAN is not a credible news source?

LAH: Yes.

FANN: Are you saying that? OK. I'll remember that. CNN is saying that OAN is not a credible one.

LAH: Yes.

FANN: OK. Well, we are paying $150,000. We are paying for some of the security, and we are paying for the cost of the Coliseum. Well, we're paying for our fair share. Anything above that is being covered by others. I do not know who they are, but I know from the get-go there was a lot of grassroots people. I have been told that there are people sending in $10, $50 checks, $100, because they want to see this audit done.


LAH: Do you believe this is helping democracy?

FANN: Absolutely, absolutely.

LAH: Will you do this every election?

FANN: It will be a lesson in democracy that we answer people's questions, and I want the people -- I don't care if you're in Arizona or any state across the nation, if we have those kind of doubts, we owe it to them to answer the question.

This will be the basis of a gold standard.


KEILAR: What a report by our Kyung Lah with all of those questions and catching up with Karen Fann, who's very much behind this bogus audit in Arizona. But I mean, she's like a walking infomercial for conspiracy theory news.

BERMAN: I mean, first of all, Kyung Lah for president.

KEILAR: Right?

BERMAN: I mean -- I mean, I'll chair that committee right now. That was a terrific interview.

You know, she with -- Karen Fann was like, Are you telling me that OAN isn't credible?

Yes, uh-huh, exactly.

Karen Fann's argument is intellectually dishonest, and it's one of the oldest dishonest arguments in the books. You know, Burton Russell, the British philosopher, called it Russell's teapot.

He says, if someone's going to, you know, claim that there's a teapot rotating around the sun, it's not my job to prove there's not. If someone's going to make a bogus, ridiculous statement, it's not my job to prove there's not a teapot rotating around the sun. It's hers to present actual real evidence in the case.

I don't have to prove there's not a goblin standing outside the door right now, just because some crazy says there's a goblin outside the door. No, there's not. I don't have to go check to see if there's a goblin there just because some crazy makes that claim.

It's intellectually dishonest. And you heard her making that case to Kyung there, and Kyung, frankly, wasn't having it.

KEILAR: Yes. I mean, the thing is, though, I mean, listening to her, and I wonder if you took this away. She seems very convinced of this. Yes, it is intellectually dishonest, but as she is seeing this, it makes complete sense.

And there's so many people who support that point of view who are in support of this audit that you're seeing in Arizona, which she also seemed to be previewing as something that will happen again in the future.

I mean, how do you project that this is going to be something that happen -- it's like you're projecting that you're going to challenge the outcome of every election you don't like.

BERMAN: Yes. It's chasing Bigfoot. You know, prove to me Bigfoot doesn't exist. I don't have to.

KEILAR: Bigfoot doesn't exist?

BERMAN: You see? There you go.

So a special grand jury reportedly convened as part of the Trump Organization probe. What could have been uncovered in the former president's taxes? We're going to speak to a reporter who has seen some of the returns, next. KEILAR: Also we have some chilling new details about the alleged

rioter who was found with an arsenal of weapons; also a cooler full of homemade bombs near the Capitol. The senator that he tried to meet with before the insurrection.