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NEW DAY

Next Legal Steps in Michael Brown Case; Will Obama's Big Nominations Get Blocked?; Black Friday in Ferguson

Aired November 28, 2014 - 06:30   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.


(COMMERCIAL BREAK)

PAMELA BROWN, CNN ANCHOR: Welcome back. Nice to have you with us on this Friday.

Let's take a look at your headlines now.

Stores nationwide are seeing big Black Friday crowds. Some arriving as early as 5:00 Thanksgiving afternoon. Retailers are hoping to see a boost with signs of a stronger economy and gas prices at a four-year low. We'll discuss what gadgets you should be looking for and where you can find the best deals in our next hour.

Meantime, anger over the grand jury's failure to indict a Ferguson police officer in the Michael Brown shooting has triggered calls for a nationwide retail boycott on the busiest shopping day of the year. Police and National Guard troops in Ferguson, Missouri, are on alert for protests related to the Black Friday boycott. But the streets remained peaceful overnight.

A massive chain-reaction car crash shut down part of the I-90 thruway in Upstate New York. More than 50 cars were involved in the pileup near the North Grand Island Bridge. The accident shut down lanes for a couple of hours as emergency crews worked to clear the roadway. At least seven people were injured. Officials say speed and icy road conditions were a factor.

And get this -- just imagine being at Burger King and coming across, you know, $100,000 just sitting there in a backpack. Well, that's exactly what happened to the manager at this San Jose, California location. She found the backpack loaded with cash, abandoned in a booth. She alerted the store's owner, and called the police and they're working with the bank to find out who the cash belongs to.

JOHN BERMAN, CNN ANCHOR: They also found some pot apparently in the backpack. I mean when you find $100,000 in a backpack, it's not too sketchy, in a Burger King, not at all. Not at all.

(CROSSTALK)

MICHAELA PEREIRA, CNN ANCHOR: Because that happens.

BROWN: And leave it in a booth at a Burger King.

PEREIRA: She was honest. BROWN: I know I was thinking that. Good for her.

BERMAN: Football, turkey. More football, Andy Scholes has it all this morning. Three football games.

Good morning, Andy.

ANDY SCHOLES, BLEACHER REPORT: Hey. Good morning, guys.

Yes, you know, it's tradition every year. You got to stuff yourself with turkey and other great food items and you pass out on the couch watching football. At least that's what I do every Thanksgiving.

As you said, guys, NFL treating us to a tripleheader yesterday. The night cap featuring the 49ers hosting the Seahawks. Now, this is the first time Richard Sherman and Michael Crabtree squared off against each other since Sherman's epic rant after last year's NFC championship game. And Sherman, well, hey, he once again backed up all that smack talk, he had two interceptions in the game as the Seahawks dominated the 49ers, 19-3 was the final score.

Then, after the game, Sherman took a shot at the fans in San Frans.

(BEGIN VIDEO CLIP)

RICHARD SHERMAN, SEATTLE SEAHAWKS: Their fans threw a few jabs. Somebody threw a glass bottle at the end when we were jogging in. And, you know, you never have to resort to name-calling and some of the things they said.

And, you know, it really just helps you appreciate your fans, you know? Appreciate the 12th man and how classy of an organization we have and how classy our fans are. And, you know, they stayed through the game regardless of the outcome. That's huge. But not every fan can be a great 12th man. Thank you.

(END VIDEO CLIP)

SCHOLES: I love him carrying the turkey off the field like that. Now, 49ers CEO Jed York was not pleased with his team's performance. He tweeted after the game, "Thank you, 49ers faithful, for coming out strong tonight. This performance wasn't acceptable, I apologize for that." That seems to be a shot at head coach Jim Harbaugh who has been on the hot seat for months in San Francisco.

All right. Mark Sanchez making his return to Thanksgiving Day football on the two-year anniversary of the infamous butt fumble. There were no butt fumbles this time around for the Sanchise. He's led the Eagles to an easy 33-10 win over the Cowboys. Tony Romo, meanwhile, he had a rough day. For two interceptions for the game. The Eagles now in sole possession of first place in the NFC East.

And finally, Megatron ruled on Thanksgiving once again. Calvin Johnson caught two touchdowns for the Lions yesterday against the Bears. He now has eight touchdown receptions on Thanksgiving, which is the most ever. Detroit beat Chicago 34-17, Bears miserable season continues. They're now 5-7.

And, John, I know the game you were looking forward to this weekend, Patriots/Packers. That should be the game of the day on Sunday. As Brady versus Rodgers for the first time ironically.

PEREIRA: Are you going to grow a beard for that?

BERMAN: Just say Tom Brady again, just say that. Just say the name one more time. Say it. Just say it.

SCHOLES: Tom Brady.

BERMAN: Thank you, Andy.

PEREIRA: All right. Good to have with us.

SCHOLES: Have a good one, guys.

PEREIRA: You, too.

BERMAN: Thirty-six minutes after the hour.

Calls for people in Ferguson, Missouri, to protest with their pocketbooks by boycotting stores on Black Friday. So, will it work? And what are the next legal steps in this case?

Our panel breaks it all down next.

(COMMERCIAL BREAK)

PEREIRA: A night of quiet in Ferguson after violent protests rocked the Missouri community earlier in the week. Will the calm that existed overnight, will that last? And what are the next steps forward?

We want to bring in Danny Cevallos, CNN legal analyst and criminal defense attorney. Here in studio with me, Joey Jackson, HLN legal analyst and criminal defense attorney.

It's so good to have both of you on this post-Thanksgiving before you get your shop on with Black Friday.

And, actually, let me talk about that with you both, because we know the protests and the legal realities, we'll talk about that in a bit. There might be some disparities there, but I know that there is -- you know, people are all asking for change and asking for answers.

One of the avenues they're doing that is by saying, hey, we want to boycott Black Friday today, Joey Jackson. We have seen this before. This isn't a new tool in a protester's handbag.

Talk to me about effective you think this could be and how widespread you think it could be?

JOEY JACKSON, HLN LEGAL ANALYST: You know what, Michaela? I think it could be very effective. You remember 1955? You remember Rosa Parks. You remember Alabama and Montgomery and that bus system and her saying, you know what? I'm not getting up.

What did it lead to? It led to a Supreme Court decision the following year. It led to it being declared unconstitutional to have buses where you segregate. You have to give up your seat. So, certainly economic power has historically been used and it's been used very effectively. There's talk about the $1.5 trillion of African-American power.

PEREIRA: Tremendous buying power.

JACKSON: Yes. So, it depends upon how much, how unified it is. But it's a good thought. And it speaks to the larger issue that's not only limited, Michaela, to Ferguson, but is limited to the feeling throughout the country, in communities, about you know, look, police brutality, civil rights issues, mistreatment, injustice and so certainly I think if Michael Brown's death is going to mean anything, it has to bring about policy changes everywhere. So, I think it could be an effective strategy.

PEREIRA: And, Danny, that's where I want to ask you, two legal minds here looking at the video of the protesters, we hear the cries for justice. We hear the cries for reform. They're seeking changes for procedures and policies. Can this align with what legal avenues are available to the family, to investigators?

DANNY CEVALLOS, CNN LEGAL ANALYST: Yes, it can.

The Department of Justice is conducting two investigations. It's a two-pronged inquiry. One could result in criminal charges against Darren Wilson. But the other one could be a civil rights action against the agency, the police agency and the kind of relief sought could be injunctive relief. Maybe there's different training to be had.

Maybe there are different procedures to be instituted. And that is something the Department of Justice is investigating now, because civil rights charges can take two forms. The criminal charges against the individual officers and then a civil action against the agency for what is called a pattern or practice of discrimination.

PEREIRA: But you guys have talked about the fact that the threshold for legal action there is higher than what we saw with the grand jury. So, it would be harder to prove that those rights were violated, no, Danny?

CEVALLOS: Well, so in the criminal, the criminal case against Officer Wilson. That like any other criminal case would be beyond a reasonable doubt-type standard. But the civil action is a mere preponderance against the agency if they've had a pattern or practice of discriminatory practices.

The Department of Justice, two ways of looking at this -- they might say, well, there was no indictment. There was no true bill, maybe this is a lost cause. Or they may take the view that, look, we've investigated this so much. We've invested so much. We think there's something there and they may proceed with those -- the Department of Justice may proceed with those civil charges.

PEREIRA: Joey, here I want to talk to you, because -- you know, that 70 hours of testimony, people are coming over it more and more as time goes. They got a change to dig into it and there's some revelations coming out of that. For example, Wilson's weapon wasn't tested for fingerprints, because according to investigator testimony, he never lost control of the gun, which directly contradicts Wilson's own statement that he feared he would be shot and Brown was trying to commandeer the weapon. And it also tells us one of the things we've gleaned as well is that Wilson was allowed to drive away from the scene and wash his hands --

JACKSON: Yes.

PEREIRA: Hello? That seems egregious.

JACKSON: These are very significant things, Michaela. And let's talk about why. Listen, in a grand jury, what happens is that grand jury has spoken and there's no such thing as a mistrial. There's no such thing as an appeal in a grand jury.

(CROSSTALK)

PEREIRA: What kind of recourse is there?

JACKSON: As a representation, what does that mean? It means you impanel another grand jury and you evaluate it. Now, is that likely? Is it not? It depends. And I'm going to tell you why it depends.

When you have an instance, forgetting about fingerprints, Michaela, what about DNA evidence on that gun? There are oftentimes where, example, where I may touch something, I may not leave prints, but I could leave skin cell DNA.

PEREIRA: Sure.

JACKSON: And when you have an incident which is so significant to the story of Darren Wilson, he touched my gun to the extent it wasn't tested, that's problematic. To the extent, he's allowed to leave the scene by himself, it's problematic. Wash his hands, problematic.

Voucher his own gun, meaning he puts it in a plastic bag or paper bag, gives it to the authorities. Those things are something that shouldn't happen. And as we continue to move forward and as Dan and I continue to speak about this, I guarantee you as we pour over it, there will be other what you call --

PEREIRA: Other revelation, yes.

JACKSON: -- revelation which is will be problematic. And to the Feds, to the issues Danny was speaking about, in terms of the civil rights investigation --

PEREIRA: It will play into all of this.

JACKSON: They're going to be looking at everything done in that grand jury. I have a lot of other concerns about the grand jury presentation that we're not talking about now. But I think that you could see a representation to a grand jury, because no double jeopardy attaches to that proceeding. It means the grand jury rules, Michaela, but that doesn't mean it's over.

PEREIRA: So, I was just about to say that, this means that we'll be talking to the two of you again in the very near feature as this continues on.

We thank you both for joining us on the day after Thanksgiving.

JACKSON: Always look for it. Take care, Danny.

PEREIRA: Joey, Danny, thank you.

JACKSON: Thanks, Michaela.

PEREIRA: Ahead, President Obama facing tough decisions after the holiday weekend, including finding himself a defense secretary, nominating someone is the first step. Getting them confirmed through Congress is a whole other story. We'll have more on that ahead.

(COMMERCIAL BREAK)

BERMAN: Welcome back to NEW DAY, everyone.

If the president had any kind of break over Thanksgiving, it's now over. He's got a lot to do, starting with trying to figure out who is going to take over as secretary of defense. And if he can find anyone who even wants the job. Two candidates have withdrawn themselves from consideration and this comes as a prominent Republican is turning to block nearly all nominations, anyway unless the president lifts his executive actions on immigration.

So, let's talk more about this with Matt Lewis and Marc Lamont Hill. Matt is a senior contributor for "The Daily Caller". Marc is a CNN political commentator and a professor at Morehouse College.

Gentlemen, thank you so much for being with us.

Marc, secretary of defense is a big job. It's a job that presumably a lot of people want because you're very, very powerful. However, people seem to be running away from the chance to take over this job. Senator Jack Reece says, no, I don't want to do it. Michelle Flournoy said, no, I don't want to do it.

Why is the president having such a hard time finding anyone who wants to take this position and what does it say about the administration?

MARC LAMONT HILL, CNN POLITICAL COMMENTATOR: Well, there's a few problems. One, whoever secretary of defense, is inheriting a boatload of problems. Number two, whoever the secretary of defense becomes, has to move into an administration with which they may have extraordinary disagreement. Many of the most prominent contenders have strong foreign policy disagreements with the president. And third, nobody wants the kind of undermining and back-stab that the White House is accused of engaging in against the previous secretaries of defense.

And so, I think there is a very interesting and complex range of problems the White House has when trying to decide someone.

BERMAN: It's a tough environment to say the least, Matt. Presumably the Senate says, even Republicans say they wouldn't get in the way or block a secretary of defense nomination for other reasons, namely, the executive actions on immigration.

However, Senator Ted Cruz from Texas has said he will block any judicial nominations and the like. Let's listen quickly to what he said.

(BEGIN VIDEO CLIP)

SEN. TED CRUZ (R), TEXAS: The incoming majority leader should announce that if the president implements this lawless amnesty, that the Senate will not confirm any executive or judicial nominees, other than vital national security positions for the next two years.

(END VIDEO CLIP)

BERMAN: Now, that includes, Matt, presumably the nomination of Loretta Lynch, who has been picked to be the next attorney general. Is it a good move for Republicans to stand in the way of that nomination? Given how important right now, I mean, the Justice Department is always important, obviously, but right now, with everything going on in Ferguson, is it a good idea to get in the way of that nomination?

MATT LEWIS, THE DAILY CALLER: I don't think so. Look, I think there might be some occasions, someone like a Jeh Johnson who is involved directly in advising President Obama over the immigration order. Maybe you make an argument that that would be a deal-breaker.

But for somebody who wasn't directly involved with that. When it comes to an attorney general, I just don't think how it would be a smart move for Republicans to try to block that. Unless of course, I mean, there are occasions where a nominee has egregious problems, obviously the Senate has the responsibility to vet the nominees. But just to do did for revenge or to get back at the president for what he's doing on immigration, whether you agree with it or not, I think that will be a political mistake. And I don't think it's going to happen.

If you actually parse what Senator Cruz said, he has a lot of caveats in there. And so, I don't expect that to actually happen.

BERMAN: No, Ted Cruz is a good lawyer right there. He did leave himself plenty of outs.

Marc, I want to talk about Ferguson and about President Obama and Ferguson, because, you know, he has been criticized some for his reaction over the last week and his responses over the last week. I want to play some sound from Cornel West who on CNN International has some pretty scathing comments about President Obama. Let's listen.

(BEGIN VIDEO CLIP)

CORNEL WEST, PROF, PHILOSOPHY & CHRISTIAN PRACTICE, UNION THEOLOGICAL SEMINARY: I think Ferguson signifies the end of the age of Obama. It's a very sad end. We began with tremendous hope and we end with great despair.

(END VIDEO CLIP)

BERMAN: What do you make of those comments, Marc?

HILL: Well, I think what Cornel West is speaking to is the profound sense of hope that some people had invested in the Obama administration, that it will be a turn toward racial justice, economic justice, social justice more broadly, and many people are profoundly disappointed at the way that President Obama has engaged issues of race, not to mention public policy around poverty, and other things that Cornel West is criticizing for, for the last six years.

But I think in regard to Ferguson in particular, there's been a critique about the way President Obama has came out and preached calmness and fairness to both sides. Many people saw it as not attempting to be above the fray. But really trying to calm down what many saw as righteous indignation and outrage at the injustice. Now, I would agree with that.

More recently, people wanted the president to be in Ferguson before the grand jury decision, to calm people down, to speak to the need for justice, et cetera. When that didn't happen, people feel that President Obama failed on this issue.

I think the White House's position is a little bit different. I think that White House position in general has been, if we can't fix, if we can't address something, we don't want to speak out about it. For example, we don't want to talk Ebola if we can't fix problem. We don't want to talk Ferguson until the grand jury comes in. And in doing so, I think it makes the White House seem as if there's an empathy gap and maybe a racial consciousness gap.

BERMAN: Matt, last word, should he go? Should the president go to Ferguson?

LEWIS: I think he should. Look, Ron Fournier wrote a piece for the "National Journal" where he said, President Obama has failed to be a uniter between the left and the right, blue America and red America. But he's still can be a uniter between black America and white America.

And that in and of itself would be a huge legacy. He has the power of the bully pulpit. He has great at rhetoric. And that's not nothing -- I'm a believer that words matter and I think he probably should have gone and inspired and united.

BERMAN: He can still go over the next week. Let's wait and see what happens.

Matt Lewis, Marc Lamont Hill, great to have you with us this morning. Happy Thanksgiving to both of you.

HILL: Pleasure.

LEWIS: Thank you.

BERMAN: Following a lot of news this morning. Let's get right to it.

(BEGIN VIDEOTAPE)

UNIDENTIFIED FEMALE: The hunt for bargains across the nation --

UNIDENTIFIED MALE: There is one line only.

UNIDENTIFIED FEMALE: It's really just the anticipation. Kind of like an adrenaline rush.

UNIDENTIFIED MALE: People on Black Friday go crazy.

UNIDENTIFIED FEMALE: This painful photo of their first holiday without him. Plans for a nationwide retail boycott on the biggest shopping day of the year --

UNIDENTIFIED MALE: I am not a threat to you. I am not doing anything.

UNIDENTIFIED MALE: Economic power is as powerful as political power.

UNIDENTIFIED FEMALE: With ISIS at Turkey's border, Pope Francis makes one of the most challenging trips of his papacy.

(END VIDEOTAPE)

PEREIRA: Good morning, and welcome back to NEW DAY.

Are you ready over there?

BERMAN: Oh, I'm ready.

PEREIRA: I'm Michaela Pereira and that's John Berman. Pamela Brown joins us.

Good to have you here.

BROWN: Great to be here.

PEREIRA: On this day after Thanksgiving, we hope had you a safe and wonderful one.

Of course, after the feast comes Black Friday madness. Stores nationwide are seeing big crowds, some of them rushing out to stores as early as 5:00 on Thanksgiving afternoon trying to get some of those great deals. BERMAN: Yes, retailers, they want to see a boost and with improving

economy and gas prices at a four-year low, they could see it. But as we see every year, all excitement over the hottest gadget or toy can turn into mayhem.

Our Deborah Feyerick bravely and graciously taking a break from her own holiday shopping to give us an update from Jersey City.

Good morning, Deborah.

DEBORAH FEYERICK, CNN NATIONAL CORRESPONDENT: Yes, well, good morning.

You know, you're right. The stores -- some of the stores opened at 5:00 p.m. yesterday Thanksgiving Day. We're trying to get a read over whether people came for the discounts or whether they simply wanted to get out of the house and away from their families. So, still, trying to do the research on that.

We can tell you this mall here in Jersey City was opened overnight, it was crowded, really crowded. Up until about midnight when the crowds started to go away. But there were some intrepid folks who made it through the night. Now it is filling up. It's filling up a lot.

And the stores are really making a huge push to get people in. I mean, you can see here, look, buy one, get one $5. You got 50 percent discounts. You got buy three, get one free. There's coupons, there's giveaways, there's everything.

And a lot of people are taking advantage of it. Some in fact, it's getting a little bit hairy out there.

(BEGIN VIDEOTAPE)

FEYERICK (voice-over): Overnight, the hunt for bargains across the nation -- becoming a contact sport. Police prying the shoppers off the floor at this Walmart in Houston, Texas, refusing to let go of a discounted TV.