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LEGAL VIEW WITH ASHLEIGH BANFIELD

Supreme Court Sidesteps Key Obamacare Ruling; Justices Seek Compromise In Birth-Control Case; Obama Knocks Trump, Saying "Ignorance Is Not a Virtue"; Clinton Campaigning In Kentucky Ahead Of Primary; Waco One Year After Massive Biker Shootout; "Outlaw Bikers" Open Up About Waco Shootout. Aired 12:30-1p ET

Aired May 16, 2016 - 12:30   ET

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


ASHLEIGH BANFIELD, CNN ANCHOR: The women and may be speaking out through their insurance, gone to the court and our Senior Legal Analyst, Jeffrey Toobin joins me now to explain this latest move by the Supreme Court which, if you want to give it really simplistic parlance is a punt.

[12:30:14] JEFFREY TOOBIN, CNN SENIOR LEGAL ANALYST: Exactly, a unanimous punt. All right, it's a little complicated, so let me just walk through it quickly. Basically, Obamacare says employers have to provide insurance that includes contraception at no cost to women.

However, there's an exception for religiously oriented groups which cannot provide contraception and they have to sign a form that says we are religiously affiliated, so we don't want to be part of that. Some of those groups, the most of famous of which is the little sisters of the poor, a religious order, have said signing the form is making us complicit in contraception. It's a violation of our rights to free religion.

BANFIELD: So, what I don't get is that the form, which allows them to opt out of providing the contraception to their employees, and then the insurance provider instead will do it which is not their action, that form was an accommodation because this had already been litigated and this was the accommodation that Obamacare put in. If you're signing a form and opting out, how is that making you complicit in getting women birth control?

TOOBIN: The Obama administration has made precisely that argument. They say it is not making you complicit. It is helping you get out of the obligation. But one appeals court ...

BANFIELD: And the provision.

TOOBIN: Right. And one appeals court rules in favor of those challenging the law. The other appeals court said, this is legitimate, what the Obama administration has done. And what the court did today was said, unanimously, please, you two groups, the administration and your religious organizations try to work out a deal. You're not that far apart. Try to work out a deal that satisfies both sides which accommodates religious concerns of the groups and allows the employees to get birth control.

BANFIELD: The compromise that the Supreme Court is asking that the parties to do in the lower court, correct?

TOOBIN: Well, work it out and so that the lawsuit goes away.

BANFIELD: And it is not going to go away because they've been able to work it on prior.

TOOBIN: That's what I think.

BANFIELD: But unanimous today. Does this tell us anything? I've got ten seconds. Does unanimous tell us anything if it ends up back under that ...

TOOBIN: Yes. Eight justices can't decide tough issues, so they basically said, look, try to work this thing out. We don't want to have to deal with this and decide it 4 to 4, another example of the significance of Justice Scalia's departure.

BANFIELD: Justice Scalia departure and no ninth justice on the bench.

Jeff Toobin, as always thank you. Appreciate it.

I'm sure Jeffrey would agree with me that in politics as in journalism and as in the law, words matter. Words are critical.

TOOBIN: I do.

BANFIELD: I knew you would. But the words that seem to matter this time don't quite sound like the words of campaigns past. You agree with me there, right? No matter what your policy.

TOOBIN: Absolutely.

BANFIELD: After our break, some of the best political words smith in the business are going to rate the rhetoric of the 2016 election and let me know if we will ever again hear things like, ask not what your country can do for you. What would we hear instead?

[12:34:27] That's next.

(COMMERCIAL BREAK)

BANFIELD: Without naming Donald Trump, president Obama is jumping in to the fray again and urging graduates of Rutgers University to tout their knowledge, not their lack of it. See if you notice a not so subtle dig at the presumptive GOP nominee.

(BEGIN VIDEO CLIP)

BARACK OBAMA, U.S. PRESIDENT: In politics and in life, ignorance is not a virtue. It's not cool and not know what you're talking about. That's not keeping it real or telling it like it is. That's not challenging political correctness, that's just not know what you're talking about.

(END VIDEO CLIP) BANFIELD: I want to bring in CNN Political Analyst, John Avlon, the editor-in-chief of the daily beast he was chief speech writer from there, Rudy Giuliani in New York. Also with me David Frum, senior editor for the Atlantic he was on earlier today and now you're on because you were a speech writer. One of the top speech writers for President George W. Bush and Michael Waldman director of speech writing for Bill Clinton from '95 to '99 and author of "The Fight To Vote." I'm so glad the three of you where here.

John, I'm going to begin with you. We've heard a lot of sort of crude populous message from Donald Trump. But it seems to resonate. It seems to be working. I'm curious if we are any different than we were, say, four, eight, twelve years ago that this is the kind of message that you guys need to start realizing, is what works.

JOHN AVLON, CNN POLITICAL ANALYST: Look, I mean we've had demagogues before and conservative populist demagogues in particular always try to outplay the base and throw a lot of red meat, yeah, and should we long do it, you know, and other folks. But I think for a nominee, Donald Trump, is defining presidential rhetoric down. And that's just a sad reality right now.

[12:40:01] You know, I don't think that means that indefinably that's the directional presidential discourse is going to go, but you got to fight back on it and realize it for some folks. It does sound like keeping it real rather than for aging ignorance loudly.

BANFIELD: So, David, I want to quote Donald Trump. He was interviewing with Joe and Mika on MSNBC in the morning and the question that came to him was about was who do you consult, you know, for advice, et cetera, and his response was, and I'm going to quote him word for word. "I'm speaking with myself, number one, because I have a very good brain and I've said a lot of things".

I mean, when John says that things are being dumbed down, that's not hyperbole at all that things are being ridiculously dumbed down to reality T.V. style talk.

DAVID FRUM, SENIOR EDITOR, THE ATLANTIC: Yeah, but that's a statement by this powerful and also disturbing, not because it's unintelligent or because it's not sufficiently flowery in its rhetoric. It's powerful and damaging because it's psychologically revealing that both maybe you haven't built a team or may be just can't bear to share credit with everybody.

One of the things that make a president effective is sharing credit as widely as possible because that mobilizes people. And also by the way, allows more people to blame if things go wrong.

BANFIELD: Michael, I have a list of things in front of me and I keep looking at them, ask not what you can do for your country ask what you can do for your country. The only thing we have to fear is fear itself.

Andrew Jackson is any man worth his thought will stick up for what he believes is right. But take -- it takes slightly better man to acknowledge instantly and without reservation that he is an error, these are words to live by. They make me proud to be a new American.

And then -- I'm listening to Hillary Clinton the other day when she was on the campaign trail and she said when it comes down to it, you can make all the speeches in the world. You can diagnose the problem. But what matters if you actually propose solutions that work to help the American people. So that's not dumbing things down or getting in a mud, but it is the kind of thing, Michael that Donald Trump would say, she's boring. And people tend to agree.

MICHAEL WALDMAN, FORMER SPEECHWRITER FOR PRESIDENT CLINTON: Well, remember that those eloquent lines that you just quoted were all delivered by the presidents after they had won.

BANFIELD: Amen. Amen for that.

WALDMAN: In their inaugural addresses. You always have some version of punchy populist rhetoric in any campaign. With Hillary Clinton, you know, everybody says though she should be more authentic and then when she talks as she wants to, you know, And kind of policy terms, people say well, you know, can you spice it up a little bit?

I think the challenge for her is twofold. One, is she's got really powerful policy arguments in a lot of respects and what she needs to do is to stitch them together in a way that points a brighter future and that holds together and of course, when she pivots, when she's able to pivot to the general election, that's really the moment to do that. The other thing is we heard in President Obama's speech, he said things are getting better.

You haven't heard that kind of language in either party very much in this election and whether the country is seeing itself as in the middle of an unacknowledged depression after the financial crash or actually making progress is going to be a big part of this story of this election.

BANFIELD: Because it's all about language, I'm going to throw a few more quotes out there. Ronald Reagan, -- his minds are not in government. If any were, businesses would hire them away.

Richard Nixon, the man is not finished when he's defeated, he is finished but when he quits.

John Avlon, these are -- I mean this is the kind of stuff I would put on my wall in my office. And I love what Michael just said. We're on the campaign trail and there is a difference between what you say on the campaign trail and when you are a president with a big staff, a very smart speechwriters like you three, is there any -- should I be assuaged in my fear that we're not going to have incredible pros like this when either one of these candidates is any oval office, John?

AVLON: You know, Ashleigh, I mean, one of the truisms in politics is that you campaign in the poetry and your governing pros. And while, you know, whoever is elected president is likely to work with speechwriters and presidents since Washington have done with Madison and Hamilton helped George Washington with those addresses. But, you know, those sorts of lines that are not just about -- living and the connection between the character of a president and character of a -- and that's what's in danger of being lost. It's not just sort of an aphorism that, you know, inspire, it's the idea that character itself matters when you're selecting a president, that's what endanger of being lost right now in the rush to reality T.V.

BANFIELD: It is why I have all of your books on my shelf, John Avlon. David you haven't sent me any of late, so I'm waiting for your next one and Michael same to you.

FRUM: I'm doing a lot depublishing they're hard to say.

BANFIELD: It's great because I read every thing on my iPhone these days to the three of you thank you I so appreciate it. And I feel like the words are just not enough but thanking you for your work today, but I do appreciate it, thanks guys.

[12:45:01] Tonight on AC360, John Kasich is going to join Anderson Cooper live. And his first interview since he left the presidential race. And what he thinks about Donald Trump and the Republican Party that he now is watching from a distance. It's on AC360 starting at 8:00 p.m. tonight.

In other news, one year, it's in one full year since the Waco biker gang shootout where more than 150 bikers ended up facing charges that could send some of them to prison for life. The video tape was nothing short of alarming. Yet, none has been given a trial date yet. What about that speedy justice thing, you know, constitutional thing. Still ahead on Legal View, stories and pictures from that gruesome day that you have not yet seen before.

(COMMERCIAL BREAK)

BANFIELD: Tonight at 9:00 p.m. eastern, CNN is traveling to the inner circles of the secret world of rival motorcycle clubs. It's for a special report, Biker Brawl, inside the Texas Shootout.

[12:50:06] We're doing this because it's been a year since that twin peaks restaurant in Waco became this. What you're seeing is the site of one of the deadly shootouts in American outlaw biker history and we've got graphic surveillance video. Some dramatic dash cam footage and some brand new interviews that you're only going to see right here on CNN. Here's a look at what you can expect tonight and you may be surprised to learn that this story is far from reaching any kind of legal resolution.

(BEGIN VIDEO CLIP)

PATRICK SWANTON, SGT., WACO TEXAS POLICE: At last count, we have 170 individuals that we have arrested.

ED LAVANDERA, CNN CORRESPONDENT: The count grows to an unprecedented 177 bikers arrested.

UNIDENTIFIED MALE: I believe it was 16 days. LAVANDERA: Including Matt Clendennen who says he took cover in the bathroom in the melee.

MATT CLENDENNEN, BIKER: Why would they feel the need to take over 170 people and put us behind bars just because we were there and we were riding a motorcycle, it makes no sense to me.

LAVANDERA: There were so many bikers arrested. They had to bring them here to the Waco Convention Center. Police divided rival bikers into separate rooms, where they were processed and held into the middle of the night.

UNIDENTIFIED MALE: First, zip tied and laid on the floor of the convention center, and stayed zip tied for 18 to 19 hours. That just was a shock.

LAVANDERA: Video and audio clips obtained by CNN capture a chaotic scene inside the convention center as police interrogate biker after biker.

UNIDENTIFIED MALE: Did you physically, yourself, see anybody shoot. No.

UNIDENTIFIED MALE: So there was no idea that this was all going to happen today. You think anybody knew.

(OFF-MIC)

LAVANDERA: Some bikers are belligerent. Others, it seems are in shock.

UNIDENTIFIED MALE: I rode in with Rick Kirschner. He's actually -- he's in the hospital at the moment.

UNIDENTIFIED MALE: Does he have a nickname?

UNIDENTIFIED MALE: Bear.

UNIDENTIFIED MALE: Bear.

UNIDENTIFIED MALE: Yeah. Could you tell me how he's doing?

UNIDENTIFIED MALE: Do you want me to tell you how he's doing.

UNIDENTIFIED MALE: Yeah.

UNIDENTIFIED MALE: He's dead.

LAVANDERA: The story of this biker tells is about his own son.

UNIDENTIFIED MALE: When I shoved him off me, as soon as the gun stopped, I started going back because my son got shot in the head and bleeding out next to me. And I started trying to deal with him.

UNIDENTIFIED MALE: And was that one of your brothers?

UNIDENTIFIED MALE: My son. UNIDENTIFIED MALE: Your son? Your son got shot. I'm sorry, man. I did not know that. I did not know.

LAVANDERA: After the interrogations, a sea of mug shots are released. Then bikers are taken to jail and slap with $1 million bonds.

(END VIDEO CLIP)

BANFIELD: And that's where this story gets good, believe it or not.

Ed Lavandera, live with me now.

So what I can't believe is the constitutional right to a speedy trial, we're a year into this thing and what 154 of these guys don't have trial dates yet.

LAVANDERA: No, it is not exactly clear when it's going to happen. So that's a cause of a lot of frustration, a lot of anger for these bikers.

BANFIELD: But three of them who weren't even present. And this is where it gets good. Three of them who weren't even present at that scene, in Twin Peaks, they have trial dates and they're being charged by the feds.

LAVANDERA: Right. So this shootout happens in May and we wake up in January to find out that there's been an early morning raid on the three top leaders of the Banditos Motorcycle Club. But two guys in San Antonio and the national president, Jeff Pike, in Houston they come -- there's a federal indictment it's a racketeering case with a bunch of underlying charges in that case.

Those guys are slated for trial later this year. But it opens up a whole new round of questions about was this in the works before Waco happened?

BANFIELD: Bang.

LAVANDERA: You know, there's like just a lot of intrigue.

BANFIELD: So here are those underlying things you talked about because when you hear about racketeering you might think mob or you might think money. But this is murder, attempted murder, assault, intimidation, extortion, drug trafficking. And I think the list may go on from there.

Here's my question. You have a lot of sources in the story but with 177 people arrested, there's a lot of lawyers on the case. Is anyone suggesting that this one massive squeeze like you take the group of 154 state cases and squeeze them and you terrify them that they're going to face the same, they're going to go down for as long as the guy might have planned it or as supposed to them coming in for a latte that day?

LAVANDERA: There are a number of lawyers on the Waco cases who believe that there -- none of these cases will ever see the light of day in a Waco courtroom.

BANFIELD: Really?

LAVANDERA: And that they're -- essentially being held on bond while the feds do their work, you know, and eventually, there'll be a super ceding indictment out of the federal investigation which is being done out of San Antonio, Texas.

[12:55:04] And when that's complete, we'll figure out how many more people the feds may or may not be interested in and they'll go from there and maybe all these cases will eventually just kind of go away.

BANFIELD: I just wonder how big the evidence lock-up was because if you got 154 cases that are that serious, you've got to have a big evidence room.

LAVANDERA: As you saw they needed the convention center and buses to handle everything that day.

BANFIELD: Such a great story. I'm so glad you're back on this because, you know, we get busy in election season and forget about these cases.

LAVANDERA: Oh, it's fascinating.

BANFIELD: Ed, great stuff. Thank you. Appreciate it. Don't miss the special, tonight. This special report Biker Brawl inside the Texas Shootout, 9:00 p.m. eastern right here on CNN.

Thanks for watching, everyone, great to have you with us on "Legal View."

Stay right here, you're watching on CNN or you can go online to watch live at cnn.com as well. Whatever you do, stick to it though because Wolf starts right after this quick break.

(COMMERCIAL BREAK)

[13:00:06] WOLF BLITZER, CNN ANCHOR: Hello. I'm Wolf Blitzer. It's 1:00 p.m. here in Washington, wherever you're watching from around the world, thanks very much for joining us.