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00:00 Donald Trump's attorney doubling down on his argument
00:02 that Trump's request to then-Vice President Mike Pence
00:06 to overturn the election is within his rights of free speech,
00:10 saying it all comes down to the way he asked.
00:15 -When it comes to political speech,
00:16 you can not only advocate for a position,
00:19 but you can take action.
00:21 You can petition.
00:22 You can ask even your vice president
00:24 to pause the vote for a period of time in order to allow the states to recertify.
00:28 -But you can't break the law, which is what this indictment alleges.
00:29 -What was it? -It alleges that he caused actions
00:33 like approving fake -- -What was it that was fraudulent?
00:36 -I'll tell you what the indictment says.
00:40 The indictment says that he attempted to cause actions
00:44 like approving fake electors,
00:46 opening sham fraud investigations,
00:48 and obstructing the certification of the election.
00:51 Whether he can prove that, that's gonna happen in the trial.
00:54 I'm just saying what's in the indictment.
00:56 -Yeah, but let's -- Right.
00:58 And let me take the first thing, the question about electors, okay?
01:02 Alternate electors are used in every four-year cycles, okay?
01:06 The Senate parliamentarian acknowledged to Vice President Pence
01:09 that they always receive protest alternate electors.
01:13 None of those electors were counted.
01:16 Vice President Pence was completely aware of the nature of the --
01:20 -They weren't counted because Mike Pence rejected the scheme.
01:24 That's why they weren't counted. -Absolutely.
01:25 And that's how the -- Of course.
01:28 And that's how the political process works.
01:30 But there was no defrauding. -No, it doesn't.
01:31 -There was no trickery.
01:33 There was no deceit because everybody knew it was all out in the open.
01:34 -Because if Mike Pence had said yes,
01:37 then that's exactly what would have happened.
01:38 -No, because -- -And that's only one --
01:41 -No, because thankfully, with freedom of the press,
01:43 you have to let me finish, though, because, you know --
01:47 No, but you asked me a question,
01:48 and I hope you can let me finish.
01:50 Because the government alleges deceit or trickery,
01:54 and all of this played out in the open.
01:57 It's all free speech.
01:58 There was a Supreme Court decision, Hammerschmidt,
02:01 which is right on point,
02:02 that says when you're exercising free speech,
02:05 you're not engaging in a fraud on the government.
02:08 And that's what, unfortunately, most people don't understand.
02:11 -That's just one example of the actions.
02:13 -It's very political.
02:14 -That's just one example of the actions in this indictment.
02:16 -Absolutely, but you're entitled.
02:18 -And this is a long list that we've compiled from the indictment.
02:22 I mean, there are -- It's more than a dozen --
02:25 not speech -- actions that the former president
02:29 allegedly took. -Like what?
02:30 Like what? -I mean, where do I even start?
02:32 -Like what? Tell me. What action?
02:33 -Asking the Arizona speaker to interfere
02:35 with ascertaining Arizona's electors.
02:38 The Justice Department -- -Asking.
02:40 Asking is speech.
02:42 -But any alleged -- -That's the point.
02:44 Asking is speech. -But any alleged --
02:46 -It's not action. -Any alleged --
02:48 Almost all alleged criminal activity
02:50 has to do with using words and is speech.
02:53 And that's -- Listen. -But you don't --
02:55 -This is obviously the defense that you're gonna use,
02:57 and it will be fascinating to see
02:59 how it works out in a court of law.
03:01 I want to move on to another issue.
03:04 -No, no, I got to tell you, though.
03:05 But you make an interesting point,
03:07 because you're saying that asking is action.
03:10 No, asking is aspirational.
03:12 Asking is not action.
03:14 It's core free speech.
03:15 The press should be defending free speech in this case.
03:18 -Let's talk about something else
03:19 that you have repeatedly said. -Speech is the most protected speech.
03:21 -And that is that the former president --
03:23 -Anything. -Ultimately asked his vice president
03:25 only for a pause in the electoral count.
03:29 -Right. -But it followed weeks.
03:30 -That was one of the things, ultimately.
03:32 The final ask -- Right.
03:34 The final ask in the ellipse speech was that,
03:37 which was President Trump
03:39 was following the advice of his lawyer.
03:41 -Okay. The word "ultimately"
03:42 I've heard you use many times.
03:44 The word "ultimately" is doing a lot of work in that sentence.
03:47 I know you're intentionally using the word "ultimately"
03:50 because that point --
03:52 -I'm using "ultimately" because it's the truth.
03:54 -I know. You're right.
03:55 It is the truth, because at that point,
03:57 he was asking for a pause. -Right.
03:58 -But it's only because -- -And I'm entitled to advocate
04:00 on behalf of a client. -It's only because --
04:02 It's only because for many, many, many other asks before that,
04:06 what the former president was asking Mike Pence to do
04:10 was to completely stop it and reject it.
04:14 And that is the point that Mike Pence is making.
04:17 It's that it got to the point where he said,
04:20 "Pause," because Mike Pence says,
04:21 "I'm not gonna reject it." -Can I respond?
04:22 -Sure. -Okay. Okay.
04:26 So, what we have, and many people don't understand this,
04:29 is a memo from John Eastman,
04:32 an esteemed constitutional scholar,
04:34 laying out a number of scenarios.
04:37 Those scenarios were presented to Vice President Pence.
04:41 He considered them, and as a constitutional matter,
04:45 he rejected them.
04:46 One of the last and the ultimate requests
04:49 that President Trump made was to pause the voting for 10 days
04:54 to allow the states to recertify or certify or audit,
04:58 and Mr. Pence rejected that, as well.
05:01 After that, there was a peaceful transition of power.
05:04 So, that's how the Constitutional works.
05:07 -What happened on January 6th was not peaceful.
05:09 I want to ask you something about John Eastman
05:11 because you talked a lot about how he's a respected
05:15 constitutional attorney. -Right.
05:18 The transfer of power was certainly peaceful.
05:21 -Did you see what happened on January 6th?
05:23 Did that look peaceful to you? -And, by the way, did you --
05:27 I'm not saying that that was in any way inappropriate,
05:31 but the ultimate power of the presidency
05:34 was transferred to Mr. Biden.
05:36 We all know that.
05:38 -All right, let's talk further now.
05:39 I want to discuss this with CNN contributor
05:41 and former Nixon White House counsel, John Dean.
05:44 John, great to see you.
05:45 I mean, I'd love to get your reaction to now,
05:48 is this a window into Trump's defense?
05:53 -Well, it's hard to believe they're going to really
05:55 push this defense in a courtroom.
05:57 First of all, the judge could well put some limits on it.
06:00 There's a lot of case law.
06:02 These kinds of arguments have been in court many times,
06:07 but they've tried to say that the crime really was speech
06:10 and the speech was protected by the First Amendment.
06:14 It is not.
06:15 They have so carefully drafted this indictment
06:19 to avoid the First Amendment problems
06:21 that I think it's bulletproof.
06:24 So I don't think this approach is going to work.
06:27 It works publicly.
06:29 He can get out and debate with news people
06:32 as to what the president was or was not doing.
06:36 And it's not a courtroom.
06:37 It's a very different situation.
06:39 Also, he's taking the story out of context,
06:42 where in court it'll be presented
06:44 in a flow of facts and witnesses.
06:47 And it's going to look very different when Mike Pence says
06:52 he, in essence, was being told what to do and refused to do it.
06:57 -Laurel, you know, in that interview, you heard him.
06:58 He says, you know, "Asking is aspirational, not action."
07:05 Is that what the law says, especially if it pertains to --
07:08 I mean, there are attempted obstruction,
07:11 you know, charges in this indictment here.
07:15 Why is attempted robbery, attempted obstruction,
07:19 why are those crimes?
07:23 -People like Trump and like my former boss, Mr.
07:27 Nixon, often pose their commands as questions.
07:34 At one point in the Watergate cover-up,
07:36 Nixon said to me, "Don't you think it would be a good idea
07:39 to pay Hunt the money he's demanding?"
07:42 That was aspirational?
07:44 Not at all.
07:46 I didn't do anything in that particular instance,
07:48 but you find that sort of thing with mob bosses often.
07:53 Trump's suggestions, as Michael Cohen has explained,
07:57 were often code language for what he wanted done,
08:00 and people who were around him understood that.
08:03 Everybody understood what Trump wanted.
08:05 He wasn't fishing for, "Would the vice president do this?"
08:10 And the vice president didn't read it that way.
08:13 So he might try to cast this as aspirational
08:16 as a public-relations argument.
08:18 It's not gonna work in court.
08:19 -In fact, as it pertains to Mike Pence,
08:23 the former vice president, just this morning,
08:24 he left open the possibility
08:26 that he would testify if necessary.
08:28 Take a listen.
08:31 -I have no plans to testify,
08:33 but, look, we'll always comply with the law.
08:37 But, look, I want to tell you,
08:39 I don't know what the path of this indictment will be.
08:44 The president's entitled to a presumption of innocence.
08:47 He's entitled to make his defense in court.
08:49 There actually are profound issues around this,
08:52 pertaining to the First Amendment,
08:54 freedom of speech, and the rest.
08:56 I'm confident he and his lawyers
08:58 will litigate all of those things.
09:00 -So how might Pence's testimony undermine Trump's claims
09:04 that he, you know, was asking, not demanding?
09:09 -Well, in many ways.
09:10 And Mike Pence will not volunteer to come in.
09:14 He'll get a subpoena that will request he show up
09:18 at the courthouse on a given day and time.
09:21 So his, you know, no intention to testify,
09:26 he knows very well he's gonna be requested to testify
09:29 based on the indictment,
09:31 and he's gonna be an important witness.
09:33 And his testimony will help to sink and convict
09:39 if any jury is fair-minded and looks at the facts.
09:43 -We also learned from this week's indictment
09:46 that Trump accused Pence of being too honest
09:49 when the vice president said he, you know,
09:52 lacked the authority to change the election results.
09:55 So that was an admission, is it not, from Trump,
09:58 that he actually did know what was right,
10:00 that people around him were telling him, "You lost,"
10:05 even though now he, through his defense,
10:07 is saying it's what he believed.
10:09 He believed that he won.
10:13 -Well, of course, Trump has denied
10:15 that he made that statement.
10:17 What he wasn't aware of at the time he blurted that reaction
10:22 out was that Mr. Pence was making notes.
10:27 And so he has a contemporaneous note of what the president said.
10:32 That's pretty persuasive and very admissible
10:37 if they indeed contest his testimony.
10:40 -John Dean, great to see you.
10:41 Thank you so much.