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Laura Coates Live

Trump Trial Ends First Day Of Jury Deliberations; Trump Allies Believe Certain Juror Could Deliver A Mistrial; Former Makeup Artist For Diddy And Cassie Speaks Out; Justice Alito Refuses To Recuse From January 6, Trump Cases; MLB Adds Negro Leagues Stats To Its Records, Putting Josh Gibson On Top. Aired 11p-12a ET

Aired May 29, 2024 - 23:00   ET

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

(COMMERCIAL BREAK)

[23:01:01]

LAURA COATES, CNN HOST: Well, the jury in Trump's criminal trial asked to rewind all the way back to day number one. The questions they're asking and what it might mean for the deliberations. Plus, there's new reporting on why the Trump team thinks there might be one juror on their side. And there's new trouble for Diddy. What investigators are now doing that could lead to an indictment. Cassie's former makeup artist is with me in just a moment. What she says she saw, tonight on "Laura Coates Live."

Well, the legal drama that has been Donald Trump's criminal hush money trial is nearing its long-awaited finale. But before the jury can write the final script, it appears that they want to rewind and re- watch episode number one. Today, the 12 jurors ended their first day of deliberations by asking to review testimony from the very first witness who took the stand.

For those of you who cannot remember, allow me to help you. His name is David Pecker. Remember, he is the head of the National Enquirer, the one who said that he would catch and kill stories to help Trump's campaign, Trump's so-called eyes and ears. The jurors asked for three different parts of his testimony.

Now, one is about that 2015 Trump Tower meeting where Pecker says that he talked about how his magazine could possibly help Trump's campaign. The jurors, they want to hear more, though. They also want to get to Michael Cohen's testimony about that meeting. And the other is a phone call that Pecker had with Trump in which Pecker recommended that Trump buy that Karen McDougal story to keep it quiet. And the fourth one, because there are four separate ones they want to hear about, is Pecker's testimony about not finalizing that Karen McDougal deal.

And tomorrow morning, the jury will get at least a half-hour's worth of that testimony read back to them, again, at their request. They also want to hear the jury instructions again. Whew, the same ones that Judge Juan Merchan gave them this morning over a period of a few hours, by the way.

I want to bring in CNN's legal analyst and former federal prosecutor, Ellie Honig, also CNN legal analyst Karen Friedman Agnifilo. Karen is counsel for a firm representing Michael Cohen, but she does not have any contact with Michael Cohen and does not work on his case.

Okay. First of all, help me to unpack for a second, Karen, what it means to have this court reporter read everything. This is not a quick process. There are no cameras in the courtroom, no audio. It has to be really Pony Express style, right?

KAREN FRIEDMAN AGNIFILO, CNN LEGAL ANALYST: So, a court reporter is a live human being who sits in court with this little stenographer machine right in front of them, and they type in shorthand, literally. And what happens is it goes on this piece of paper, this long piece of paper, and into a computer. And the court reporter then reviews and edits the computer system and makes a final transcript that includes both admissible things that came into evidence and things that didn't come into evidence.

It's really a transcript of the sidebars, the bench conferences of if someone says objection, that's in there, and if the judge says sustained. It has everything in there, including testimony.

So, the reason the court reporter has to read back the information is when they find the portions of the testimony that are responsive to the note, they'll go through, and they will read that and then omit the parts if there's a bench conference or an objection. That's why they don't just send it back, because the transcript has all sorts of information in it.

COATES: So, they have to read it probably in a neutral way. They have to identify which aspect. And jurors are not going to be that specific in saying, I want to have the section when this happened. They have to give you a general space to have that in. And then who decides what they actually get? The lawyers?

ELIE HONIG, CNN SENIOR LEGAL ANALYST: Yeah. So, thankfully, the jurors were pretty specific in that first note, right? When they say we want to hear David Pecker's testimony about the August 2015 meeting, you can find that pretty quickly. But what's happening with some of the requests, one of the requests actually, is there's a little bit of a dispute because the prosecution usually just wants to put in the heart of the matter, the direct testimony.

[23:05:03]

But the defense often wants to say, well, you have to include the cross-examination on it, which you do, and then some of the atmospherics around it. So, it's going to take -- this is for some reason we've now decided we're back in the 19th century, right? I mean, no cameras, no audio feed, where, you know, normally judges send the jury instructions, the written jury instructions, back with the jury rather than expecting them to somehow absorb 55 pages worth of material. In New York courts, they don't. They just read it to them. And now, the jury is saying, well, can we have it again, which is a remarkable request.

COATES: I got to tell you, I mean, when Karen was describing what it sounds like to read it all back, I'm thinking like little milk gallons delivered at your door --

HONIG: Yeah.

COATES: -- by a milkman somewhere, and little glass. It's very Andy Griffith. But Elie, read -- I mean, there's a portion, Karen, excuse me, of what will be a part of tomorrow's readback on this point, and it centers around Trump's phone call to Pecker during an investor meeting back in June of 2016. I'm going to do a dramatic reading.

HONIG: Oh, good.

COATES: Okay. So, he says, when I got off the phone, Mr. Trump said to me, I spoke to Michael. Karen is a nice girl. Is it true that a Mexican group is looking to buy her story for $8 million? I said -- I said, I absolutely don't believe that there is a Mexican group out there to buy a story for $8 million. And then he said, what do you think I should do? I said, I think you should buy the story and take it off the market.

Now, this is about Karen McDougal, not Stormy Daniels. But why is it significant, you think, to the jurors?

FRIEDMAN AGNIFILO: So, this is a conversation between Pecker and Trump. And later on, in that conversation, this is where Pecker -- I'm sorry, Trump actually deputizes Michael Cohen and says, essentially, I'm going to talk to Michael, let me get back to him, see what he says, and I will -- and he'll get back to you.

And that's a key piece of information because if you remember, what the defense is saying is they're saying Michael Cohen went rogue and Donald Trump didn't know. This is showing here -- this is critical information here because this is David Pecker now, not just Michael Cohen, saying, I was told by Donald Trump, talk to Michael, Michael knows, Michael is my deputy, if you will.

COATES: So, by deputizing him again, it makes him -- it makes him maybe more plausible for a juror that he would not be the direct communicator, but maybe a conduit in all these things.

Elie, the jury instructions that they're going to hear again, apparently, tomorrow, which, I mean, to each his own, there are allies of Trump who are complaining about the substance of what -- a lot of it was boilerplate language.

HONIG: Yeah.

COATES: Senator Marco Rubio actually took issue with Judge Merchan telling the jury that they may consider three different ways, three different sort of predicate crimes that could elevate it from a misdemeanor to a felony, and they need not at this point in time decide unanimously which one that is. He didn't like that.

HONIG: Right. This narrative is spinning a little bit out of control, right? The talking point that seems to be taking hold is, well, the judge said they can convict him less than unanimously. That's not accurate. Now, let me explain the way it works, and I think we have a visual that helps us. The actual charge that has been brought is falsification of business records under New York law. Now, part two, which raises that up to a felony, is in order to violate a state crime. Here, the state crime is state election fraud, which says you cannot try to interfere with an election through unlawful means. And that brings us to part three.

Now, the D.A. has argued there are one or two or three of three different unlawful means: federal campaign laws, tax fraud, and falsification of other business. Now, with that menu of three at the end, the judge has said, as long as there's a conspiracy to commit any one of them, and you don't have to agree which one, that's enough under New York law.

That's probably a correct version, a correct reading of New York law. We don't know exactly because we're in a little bit of uncharted territory. And this will be grounds for appeal if Donald Trump gets convicted. Not saying he's definitely going to win. We don't know. But it is fair to say part three of the crime here, what's the other -- other crime, they might not have to all agree.

But also, let's be real. The case here is federal campaign finance law. I mean, the D.A. barely mentioned tax in their case in chief or in their closing. The falsification of other records, to me, is sort of nonsensical. Ninety-eight percent of the focus has been on federal campaign finance law. So, if they convict, it's going to be on that basis.

COATES: Well, and again, they do have to be unanimous on the overall, each of the charges, but they don't need to prove as prosecutors that Trump committed the second predicate crime, but that there was an attempt to do so --

HONIG: Yeah.

COATES: -- or they were trying to hide a particular crime. It's hard to read the tea leaves. Elie Honig, Karen Friedman Agnifilo, thank you both so much because we're going to keep reading those tea leaves.

(LAUGHTER)

The defense, of course, is also banking on a mistrial to get Trump off the hook. There's actually new reporting that suggests that they're pinning their hopes on one juror in particular. So, why might that be? The answer, kind of, next.

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[23:14:25]

COATES: So, is it beware of the smiling juror or the poker face now reporting there has been reporting from "The Bulwark" signaling that Trump allies have set their eyes on one particular juror who allegedly made some kind of friendly eye contact with Trump, nodded and even smiled in the defense's direction. Maybe it was active listening. Maybe it was not.

So, it does beg the question, is one juror making eye contact to send some sort of signal to the defense, or has one Trump insider said -- quote -- "just doing that to 'F' with us before they vote to convict?" Not kind of a glass-half-full kind of person, huh?

[23:15:00]

Joining me now, the reporter behind that story for "The Bulwark," Marc Caputo, and jury consultant Richard Gabriel. Gentlemen, glad to have you both on. Let me begin with you, Marc, on this because I guess you've got to have hope at the end of the day if you're a defendant. And looking at one possible juror, knowing that it only takes one to try to acquit or maybe have a mistrial and beyond to influence others, but why is the Trump team so hopeful about the possibility of this one juror?

MARC CAPUTO, NATIONAL POLITICAL REPORTER, THE BULWARK: Well, I think it's not just the body language of the juror. When the jury would walk in, they would file past the defendant's table, past Donald Trump. And all the other jurors would basically look at their feet or look away and not make eye contact. This guy would. And when the various congressional surrogates for Trump would come into the courtroom, this juror's face would -- quote -- "light up," especially when he saw Ohio Senator J.D. Vance.

So, he seems to be, at least in the estimation of the Trump crew, plugged into who these various political figures are, and he appears to admire or like them. Now, again, he could just be being nice or showing good manners or who knows what.

But I think this also speaks to a certain level of almost desperation or worry, I should say, in the Trump campaign and in Trump's orbit that the best he could hope for is a hung jury. They're really bracing for a conviction. Who knows what happens then. But to the degree standing trial is sort of the stages of grief, looking at this one juror who makes sort of smiley eyes and thinking, well, maybe he's going to hang the whole jury and mis-try this, is sort of the bargaining stage of grief for the Trump operation at the moment.

COATES: Hmm. Richard, I mean, I happen to be an expert in smizing. That seems to be my forte, Richard. But I want to know from your perspective on these things. You know, what happens right now as the Monday morning quarterbacking and the woulda, coulda, shoulda, and should we have done this and did we do enough, that's all happening while the jurors are deliberating. And I'm wondering, do you think they're reading too much into this juror's behavior or mannerisms or could there really be something there?

RICHARD GABRIEL, JURY CONSULTANT: Well, a little bit of both. So yes, I think we're reading way too much into it. But the truth is that this is why jury selection is so important, because, you know, this is a prosecutor, he is a former prosecutor, you are looking for consensus. You have to have a unanimous verdict. So, looking for those outliers, looking for those -- one person who's going to somehow throw a wrench into the works and is going to fold their arms and say, I'm not going to convict, that becomes important. So, the personality dynamic that you're looking for in jury selection is important. Are these jurors going to get along? Are they going to work together? Whether they're smiling, whether they're a little more, excuse me, favorable toward one side or the other, that may come and go. You never know. A lot of jurors tend to try to be stoic in these cases --

COATES: Yeah.

GABRIEL: -- because they -- they know they're being watched.

COATES: Richard, do you put a lot of stock in the amount of time that a jury is out to determine how they might rule?

GABRIEL: Yes and no. I mean, the truth is a quick verdict typically favors an acquittal. But the truth is in a case like this, I don't put a lot of stock in it because it is a complicated case. It is unique legal theory. There are 34 counts and there's a lot of evidence. There are five weeks of evidence with 20 witnesses.

COATES: Hmm.

GABRIEL: That's a lot to go through, and you have very, very smart jurors who are going to take their time, I think, with this. So that's why I'm not putting a lot of stock in the timing, because I just think this jury wants to make sure they get it right.

COATES: Well, Marc, I mean, I want you to listen to what Trump said after court. Many are calling this spin. Listen.

(BEGIN VIDEO CLIP)

DONALD TRUMP, FORMER PRESIDENT OF THE UNITED STATES, PRESIDENTIAL CANDIDATE: Mother Teresa could not beat these charges. These charges are rigged. The whole thing is rigged. Nobody knows what the crime is because there's no crime. Nobody knows what the crime is. The D.A. didn't name the crime.

(END VIDEO CLIP)

COATES: I mean, lawyers know to manage expectations, but that's quite the managing of expectations to suggest that Mother Teresa can't beat these charges, which means if he beats the charges, is he better than Mother Teresa? I mean, there's a whole lot going on there. What's the political message that you think he's trying to convey? Is he hedging? And what will it be if he is acquitted?

CAPUTO: I think Donald Trump is actually expressing how he actually feels --

COATES: Hmm.

CAPUTO: -- which is that he's probably going to lose this one. And he's also looking at the future. He has to message and say, this was rigged, this was a political show trial, et cetera, et cetera, et cetera, in the hopes that the nation or a majority of voters buy that or believe him. One of the things that surprised the Trump campaign so far and a lot of his advisors is that they've gone through this entire trial, it has been in the news quite a bit, and yet Trump's ballot share is still higher than Joe Biden's.

[23:20:00]

That is, Donald Trump is still winning by an inside-the-air margin amount in various polls. So, so far, from the Trump campaign's perspective, so good. But no one knows what happens when you actually have a guy convicted of a felony.

And so, he's going to start messaging on that to try to lessen that impact in case he does get convicted. And again, my reporting strongly suggests he believes he's going to get convicted, and the best he can hope for is a hung jury and a mistrial.

COATES: Well, look, if a presidential election comes down to how many smiling eyes are looking at people as they go into the ballot box, we've got a whole another issue on our hands. Gentlemen, Marc Caputo, Richard Gabriel, thank you both so much.

CAPUTO: Thanks.

COATES: Ahead, big developments in the ongoing federal investigation into Diddy. CNN is learning a grand jury may soon hear from his accusers. Plus, a former makeup artist for Diddy and Cassie Ventura is speaking up, saying that she heard Cassie being abused. She's my guest, and she's next.

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[23:25:26]

COATES: Well, tonight, the Justice Department could be closing in on Sean "Diddy" Combs. According to two sources familiar with the probe, investigators are preparing to bring a number of Diddy's accusers before a federal grand jury and it could happen very soon. CNN's Elizabeth Wagmeister has the very latest.

(BEGIN VIDEOTAPE)

ELIZABETH WAGMEISTER, CNN ENTERTAINMENT CORRESPONDENT (voice-over): Federal raids.

UNKNOWN (voice-over): Agents were spotted carrying a cardboard box and several bags.

WAGMEISTER (voice-over): A flood of civil lawsuits.

UNKNOWN: I should be celebrating, but the truth is I'm not.

WAGMEISTER (voice-over): And an ongoing criminal investigation of music mogul Sean "Diddy" Combs.

JOEY JACKSON, CNN LEGAL ANALYST: It's a faulty assumption to presume that he's out of the woods.

WAGMEISTER (voice-over): Now, sources tell CNN that a federal grand jury may soon hear from Combs' accusers, signaling the U.S. Justice Department could be moving towards seeking an indictment. So far, eight people have filed civil lawsuits against Combs, seven alleging sexual assault. CNN has learned that some of those plaintiffs have been interviewed by federal investigators.

In March, Homeland Security conducted raids on Diddy's Los Angeles and Miami homes. Law enforcement sources confirming then that the investigation included a focus on sex trafficking. Now, CNN has learned the probe is much wider, including an investigation into money laundering and illegal drug charges, sources say.

JACKSON: Was there consent? Was there forcible compulsion? Were there issues involving illegality in terms of drugs or drugging, et cetera, right? We don't know. That's something prosecutors will look at.

CRYSTAL MCKINNEY, MODEL: Hi, I'm Crystal McKinney from Savannah, Georgia.

WAGMEISTER (voice-over): Model Crystal McKinney is among the plaintiffs alleging Combs drugged her. McKinney says, in 2003, she was then forced to perform oral sex. And Joi Dickerson-Neal, seen in this music video with Combs, alleges she was drugged and sexually assaulted by Combs in 1991, an allegation Combs called false and offensive in court records.

CNN can't confirm which plaintiffs have been interviewed by federal authorities, but sources familiar with the investigation say the majority have been questioned, and some have been interviewed numerous times as investigators are digging deeper.

It's much bigger than just these lawsuits, one source familiar with the case tells CNN. A male sex worker, who claims to be victimized by Combs, has also been interviewed. A source saying the worker was seen in footage that's in the possession of federal investigators. It's unclear if that footage was seized during the March raids.

Combs's attorney previously called the federal raids "a gross overuse of military-level force" and "a witch hunt based on meritless accusations." Combs has denied many of the allegations in the civil lawsuits.

SEAN "DIDDY" COMBS, RAPPER, RECORD PRODUCER, RECORD EXECUTIVE, MUSIC MOGUL: I hit rock bottom.

WAGMEISTER (voice-over): Though his only public comment since the raids came in response to disturbing video from 2016 uncovered by CNN, showing Combs throwing his then-girlfriend, Cassie Ventura, to the ground, kicking her, and throwing a vase at her.

COMBS: I'm so sorry. But I'm committed to be a better man each and every day.

WAGMEISTER (voice-over): But the Los Angeles County District Attorney's Office has said that incident won't lead to criminal charges because it's outside of the statute of limitations on assault. But Ventura, like the other plaintiffs, also alleged rape and other crimes in a lawsuit that has since been settled, possibly supporting federal investigators in seeking stronger charges to pursue.

(END VIDEOTAPE)

WAGMEISTER (on camera): Now, Laura, while we do hear that a federal grand jury may soon hear from Combs's accusers, it may not be too soon. A source tells me that investigators are taking their time with this investigation because should there be an indictment, they want to ensure that it's bulletproof. That's the word that a source used when I spoke to them. Laura?

COATES: Elizabeth, thank you so much. And now I want to bring in Mylah Morales. She's a former makeup artist for Diddy and also Cassie Ventura, working for Diddy for years and eventually becoming a friend of Cassie's. In 2010, Mylah alleges that she heard Cassie being physically abused and was a witness to the aftermath of the alleged attack. She joins me now.

Mylah, thank you so much for being here. This has been, for so many people, illuminating, infuriating, troubling, devastating.

MYLAH MORALES, FORMER MAKE-UP ARTIST: Uh-hmm.

COATES: You can go down the list of things. But it's so difficult to speak about --

MORALES: I know.

COATES: -- being a witness of anything. Tell me how you must be feeling just knowing that this has even come to light.

[23:30:00]

MORALES: Well, I have kept this secret for like 14 years. I mean, the first time I experienced it was 2010. And I was in the hotel room when Puff, you know, came in, and I had no idea Cassie left. And when I woke up, I just saw his presence come into the room. They went into the bedroom and shut the door, and all I could hear is screaming and yelling. And whatever was going on in there, I don't know. But all I could think of was to grab Cassie's things and start packing it up and just getting her out to safety and bringing her to my house. So that's kind of like what transpired from that night. And once she came out of the room, she was badly, you know, beaten.

COATES: Oh, my God. What did her physical appearance look like?

MORALES: I mean, it was knots on her -- knots on her head, black eye, busted lip, but a lot of knots all over her head.

COATES: Did she go to the police at that point or anything?

MORALES: No. No, we didn't know what to do at that point because, you know, Puffy is a very powerful person, and we were quite terrified. So, I just, you know, brought her to my house. And my friend, who is a doctor, I called her, and she was -- thank God she was in town because we didn't know what to do. And she treated her for, you know, just to make sure she didn't have a concussion or anything like that.

But it was really -- it was painful to see Cassie like that because she's such a, you know, a beautiful human being. And for a man to or a man to just hurt any sort of woman or child or animal, it doesn't matter, but Cass is a good friend of mine, and I just felt, you know, so -- I just didn't know what to do. I felt like -- I don't even know how to describe how I felt that night.

COATES: Did she describe how she was feeling about having that happen? Did you get a sense that this was the first time?

MORALES: Well, it didn't feel like it, because it wasn't -- it was almost like -- you know, I feel like she might have been embarrassed that that happened in front of me.

COATES: Hmm. But the incident that you're talking about even predates what we saw in this horrific video from a hotel floor.

MORALES: Yes.

COATES: When that video came out, what did it feel like knowing that that had now been public?

MORALES: No, I was devastated when I saw that video because it was like I actually -- I witnessed what could have happened in that room --

COATES: Hmm.

MORALES: -- and more, you know. So, that was a hallway incident. Who knows what happened, you know, in that room when I was outside of there? And I was devastated. I actually have been devastated since the court cases came out and how, you know, he mistreated Cassie.

COATES: He has settled the suit involving her specifically. But there are others. And there are sources that are telling CNN that the majority of the people currently suing Diddy are actually speaking to federal investigators, which indicates the Justice Department might be moving close to an indictment. Do you think that Cassie would testify against him if federal investigators asked her to or compelled her to?

MORALES: I'm really not sure. Like I said, I can't speak for Cass, but I hope she does. I hope she does because she's the only one that would know all the information --

COATES: Hmm.

MORALES: -- that's going on over the years. So --

COATES: Myla, why do you think -- I mean, we've heard certainly, you know, a lot of people in the industry condemn Diddy for what they saw on that video. But it hasn't been a universal outcry within the industry specifically. Why do you think that is? MORALES: Because it's a very small industry, we all know each other, and I feel like people are afraid to, like, speak up about it. And the only reason why I am is because I'm a friend of Cass's, and I really care about her very much so. And I'm outraged and very, very like heartbroken about like how he has been treating her. It just -- it breaks my heart, and I just can't imagine like a man -- a man treating a woman that way. And not just a woman, but a friend of mine that I've known since she was a teenager.

[23:35:03]

So, you know, I've known Cassie before all of this. So, it's just -- it disgusts me.

COATES: I can only imagine, of all the women that you have worked with and people who are eager to be in the industry, what they are exposed to, how they could be exploited and abused in a variety of ways, and that's why the idea that not hearing so many more people speak up is very frustrating and hurtful for so many people.

MORALES: It is. It is. It is. It is frustrating and hurtful, even for me, because I -- I just -- I watch. I -- you know, I know what goes on behind the scenes, and it -- I just can't imagine why nobody is speaking up. I mean, everyone is just hush-hush and quiet. I don't know. Maybe they're scared. I mean, we've all been scared. So, you know.

COATES: I hope this is a turning point, Mylah Morales.

MORALES: I think so.

COATES: I really hope it is. Thank you so much for joining me tonight.

MORALES: I hope so. Thank you so much, Laura, for having me.

COATES: It's important to note, we did reach out to Diddy's team in regard to Mylah's allegations, but we have not heard back. But if you or someone you know is a victim of domestic violence and needs help, you can call the Domestic Violence Hotline. That number, 800-799-SAFE. That's 800-799-7233.

And ahead, Supreme Court Justice Samuel Alito rejecting calls to recuse himself over two separate flag controversies. Now, Trump is weighing in. I'll tell you what he's saying, next.

(COMMERCIAL BREAK)

[23:41:12]

COATES: Tomorrow could bring a fresh round of decisions from the Supreme Court. But tonight, Democratic lawmakers are mounting a new push to have Justice Samuel Alito recuse himself from some cases, even after he already said he wasn't going to do that.

The reason? These two flags. Symbol used by the "Stop the Steal" movement. The upside-down American flag spotted flying days after the insurrection at Alito's home in Virginia. Then you have the "Appeal to Heaven" flag seen flying last year at Alito's beach house in New Jersey.

Now, tonight, Democrats on the House Judiciary Committee sent a letter to the chief justice, John Roberts, urging him to request that Alito recuse himself.

Earlier today, Alito took the unusual step of responding directly to senators who want him to step aside from the cases involving Donald Trump on January 6. His message? He's not recusing himself. But he did confirm that his wife hoisted the upside-down flag -- quote -- "in large part to a very nasty neighborhood dispute in which I had no involvement." There was the bus that went over her. There you go.

The "Times" reports that the dispute actually did happen. But a text message and a police call confirmed by Virginia authorities indicated it happened in February of 2021. That'd be a month after the flag was spotted at Alito's home.

As for the "Appeal to Heaven" flag, Alito insists he was -- quote -- "not aware of any connection between this historic flag and the "Stop the Steal movement" and neither was my wife."

With me now, former Obama White House senior director, Nayyera Haq, and former Republican congressman, Joe Walsh. Okay, so, this idea that, Joe, he is going to say, one, it was his wife, which I want to be a fly on the wall in that room --

NAYYERA HAQ, FORMER OBAMA WHITE HOUSE SENIOR DIRECTOR: How would that go for you if you did that?

JOE WALSH, FORMER ILLINOIS REPRESENTATIVE: Oh, my gosh.

(LAUGHTER)

Well, you doubled down on that. I mean --

COATES: That's the only question we have. How would that go? That's number one. Number two, on this point, is there -- is there an idea that he is thinking about the optics of this? I mean, would this backfire that he would force Alito to recuse himself based on the optics of these flags? Is this a good or a bad thing for the political messaging?

WALSH: I think it's a good thing, political messaging, for Democrats. He's not going to recuse himself. But this notion that this court is so overtly political will only just politically help energize Democrats as it should.

Look, Laura, let's just say what Alito did is wrong here, and we may spend three hours debating the difference between the two flags. The "Appeal to Heaven" flag, different story, historical significance, groups across the political spectrum have used that flag. But to hang an upside-down American flag in your yard a few days after January 6th, that's like hanging -- putting a Trump or Biden sign in your yard, and Supreme Court justices cannot give the appearance of being political.

HAQ: Well, apparently, they can. That's part of the problem because there is no independent body, independent oversight.

WALSH: Right.

HAQ: That entire idea of checks and balances on a system, who's checking the Supreme Court when they decide to get overt on their politics, when they decide to start tackling day-to-day issues and not looking at the long-term health of the country? The idea that Alito would or would not recuse himself as opposed to somebody else coming in and saying, there's an ethical boundary here, you should not be part of this, it goes further. It goes with Clarence Thomas, Justice Thomas. I mean, his wife was part of planning January 6th. And it no longer seems to be a question of him sticking around for these cases either.

COATES: Listen to what president -- former President Trump had to say. He is weighing in on this issue tonight. Listen.

[23:45:00]

(BEGIN VIDEO CLIP)

TRUMP: Well, they're trying to play the ref. Alito is a tough guy and he's strong and very, very smart and he put out a great statement. I gave him a lot of credit for it, but they play the ref. You know, they intimidate him."

(END VIDEO CLIP)

COATES: Do you think that Alito is intimidated? He came out and talked about it. First of all, he has got the benefit of having lifetime tenure. And like Nayyera's point, unlike even the other Article III judges who also have lifetime tenure at the federal bench, there is not that requirement to recuse. There is, you know, it's good to be the king, and the buck stops with them.

WALSH: He feels like he's untouchable. Clarence Thomas feels like he's untouchable. This is a dangerous place for this court to be in. Laura, I don't know where the chief justice is. Roberts has got to step in. I know. You should roll your eyes at me. But should step in and do something here because they're not going to police themselves.

COATES: One thing to keep in mind is even though he has held the chief justice, it's not as if he's the most senior --

WALSH: Yeah.

COATES: -- member of the Supreme Court. That position is filled by the next person. If he were to not be there any longer, that next person would become the chief justice. There is a kind of democratizing of that particular position.

WALSH: Uh-hmm. COATES: But he knows he's in trouble, which is often why he has a swing vote trying to cancel that perception that they are a political entity. But also, the idea -- you mentioned the wives here. You know, to say that it was the wife of Alito or it was the wife of Thomas, these are separate, independent persons. Should the justices be held to account for what their spouses are doing?

WALSH: Yes.

HAQ: Well, they certainly --

COATES: No, think about the answer first. And I want you to give it to me again. Should they be responsible? Hmm.

HAQ: Which may be different than should they throw their wives under the bus.

WALSH: I'll be --

HAQ: Okay, there you go. Different question. Different answer.

(LAUGHTER)

WALSH: I'll be quiet. I'll be quiet.

HAQ: There is that challenge of being a public figure, like the President of the United States, where the first lady does reflect on the institution of the White House. There's also the option of not having put up any flags or not having planned any insurrection events. That could have been a path that the spouses could have taken as well.

COATES: And, of course, we talk about the Supreme Court more broadly. Before Roe v. Wade was overturned, this was a very big election issue. There were many Republicans who said they're going to compartmentalize their feelings about Donald Trump and their visceral reactions to him personally because of the promise of being able to overturn Roe v. Wade.

And really, it remains a campaign issue, the composition of the court and who might decide who's on it. Just ask the former leader of the Senate, Mitch McConnell. But the first lady, Jill Biden, was talking about how the election could actually impact the court. Listen to this.

(BEGIN VIDEO CLIP)

DR. JILL BIDEN, FIRST LADY OF THE UNITED STATES: Think of the Supreme Court.

UNKNOWN (voice-over): Oh.

BIDEN: for God's sake, talk about things getting worse.

UNKNOWN (voice-over): Yeah.

BIDEN: Can you imagine if we put any more Republicans on the Supreme Court?

UNKNOWN: No. No.

BIDEN: No. We will lose all of our rights. So, we're talking about women's rights, gay rights.

(END VIDEO CLIP)

COATES: Should they be leaning into this messaging more about the Supreme Court composition?

WALSH: Yes, and I say this as a political conservative. It's perfectly okay to use the Supreme Court to your political advantage. I just worry. I don't want anyone to question the legitimacy of the court.

COATES: Hmm.

WALSH: But yeah, call them out politically all day long.

HAQ: That's part of the challenge, right? That the court is questioning its own legitimacy and providing fodder for these conversations by acting and behaving in unethical ways, by making decisions that go contrary to what they said they would do in their confirmation hearings. That's part of the challenge of there being no check on the Supreme Court.

And listen, we didn't start with a Constitution that had nine Supreme Court justices. The court has been expanded. It will be interesting to see if there is another Biden term, how they address this challenge of the imbalance in the court.

WALSH: We've got one side, Laura, that has been talking about rigged elections.

COATES: Uh-hmm.

WALSH: I don't want the Democrats to be the party that talks about rigged rulings, but go after them politically.

HAQ: The challenge we have with the Supreme Court is they're not elected at the end of the day.

WALSH: Yeah.

HAQ: And that lifetime appointment is something very unique in the modern landscape, considering how long people are living these days.

COATES: And they are very savvy about how to answer the questions. At the end of the day, If I hold my breath long enough and bite my tongue long enough, you'll call me justice. Joe Walsh, Nayyerah Haq, thank you so much.

Well, move over, Babe Ruth and Ty Cobb, and say hello to the greatest hitter in baseball history. The legend of Josh Gibson is next.

(COMMERCIAL BREAK) [23:54:10]

COATES: Hey, you know the phrase, records are meant to be broken? Well, that's happening in Major League Baseball. But the thing is they're records that have been broken for a very long time. The MLB is now taking in to account stats from the Negro Leagues, recognizing thousands of Black athletes excluded from the MLB during segregation. And with that, several players are taking their rightful place in history.

Among them, Hall of Fame catcher Josh Gibson. He was one of the most feared hitters ever. And that's not now going to be reflected by Gibson by topping the career batting average list. He has moved ahead of Ty Cobb. And that's not the only record that he is shattering. He has also surpassed Babe Ruth in career slugging percentage.

[23:55:00]

Gibson's great-grandson said this was a long time coming, and Gibson is now finally getting the attention he deserves.

(BEGIN VIDEO CLIP)

SEAN GIBSON, GREAT GRANDSON OF JOSH GIBSON: I believe that Josh is in heaven right now with Satchel Paige and Rube Foster and cool Papa Bell and Buck Leonard and all the other great Negro League baseball players celebrating. You know, they're probably up there talking about why did it take so long. Right? Finally, you know, we knew we could compete with these other guys in the major leagues. Everything that Josh Gibson has done in the Negro Leagues, everything that Satchel Paige and the rest of them have done, they earned it. They earned it.

(END VIDEO CLIP)

COATES: Well, it may have taken nearly a century to get where we are. In the words of Martin Luther King Jr., the arc of the moral universe is long, but it bends toward justice.

Thank you all for watching. "Anderson Cooper 360" is next.

(COMMERCIAL BREAK)