all right, thank you very much for watching. it's time for the big show. don lemon tonight with its big star, d. lemon. >> and we've got a lot of news. >> you do have a lot of news. you have all the heavy aspects of the rittenhouse trial. the judge wouldn't let him be questioned about why he may be given -- >> can we talk about this judge? >> sure. >> so i've been sitting back -- >> longest serving judge on the wisconsin bench. >> okay, fine. just sitting back and watching just as a lay person, right, just kind of watching this, watching this, watching this. and i think the legal analysts because they are legal analysts and they want to keep, you know, their composure and they're used to being -- they're paying deference to the judge. he's ridiculous. his antics are absolutely ridiculous. and today, chris, saying that someone who writes for a biased publication that has been favorable to kyle rittenhouse and that has spoken out against black lives matter, that that should not be brought in so that the jurors can't make up their own minds about what is biased and what is not and what is relevant and what is not i think is -- i think for me i don't think it works that way legally, that's cause for a mistrial. what are you doing? this guy may be legally he's right about things. i've been listening to the legal folks. but certainly his demeanor, the way he speaks to the prosecution, the way he looks at kyle rittenhouse like he's his grandson, i mean come on, america. and then for people to -- i've heard right-wing pundits make him out to be this choir boy like he is some sort of hero. okay, he's a young kid. he's misguided, i'll give him that. maybe he was defending his life, i'll give him that. but to go across state lines with an illegal ar-15 weapon and insert himself into a situation that had nothing to do with him and you're going to make him a hero? now, that's outside of the courtroom. that's a public opinion. but in the courtroom i don't see how anybody can say that this judge is not biased and is not leaning in a certain direction. >> he has a reputation for being a tough guy, being tough on prosecutors -- >> there's a difference between tough -- >> i'm just saying, though, in terms of the mistrial, if he's right on the matters of law or they're within his ambent of discretion i think only the witness and his background i think that's something that could be problematic in terms of appeals of that. but i don't know it'll rise to that level. and for the judge's demeanor to be grounds for a mistile it has to be so egregious -- look, there's no question he's really pissing people off who are watching the trial. what i didn't like was pick your spots. everything you just mentioned is absolutely a legitimate ground for being upset by what we're seeing. how the guy talked about the lunch order, i don't get it. >> the asian joke? >> i don't get it. i don't even know he made an asian joke. i know i'm not allowed to judge it because i'm not asian. i'm just saying it sounded to me like he said we're going to be late for lunch, i don't know how long it's going to take, i hope the asian food isn't stuck in a supply chain problem -- >> something about a boat. >> yeah, he was talking about the supply chain. now he said something offensive to asians. the left is going after him. i just feel like the left is setting itself up for the right to -- >> well, i wouldn't necessarily call it that. if you have asian groups that find it offensive, i don't know they could be conservative asians. you never know, they could be republican asians. >> first of all, they're absolutely allowed to say whether or not something is found offensive to them. i didn't see it as an attempt, but now it's become part of the analysis. >> because you don't know. maybe he just doesn't know, and that ignorance is -- you can also be biased and bigoted and in your ignorance. isn't that what bigotry is? it's ignorance. >> it can be but also can be straight up hate. >> look, i'm not an asian-american, but if someone who's asian says they find it offensive then it is offensive. >> yeah, i know. >> and so perhaps as the longest serving judge one would think that he would be educated on these matters. you would think if you were deciding life and death cases, if people are going to go to jail, if they're going to spend time in prison, if you're deciding peoples freedom or not, shouldn't you be educated on these matters? >> i hear you. what i'm saying -- >> shouldn't you be aware of that the cameras are out there and there are people -- >> he's aware of the cameras. >> and your behavior -- >> he's aware the cameras are there. >> god bless the usa ring tone which is the trump rally theme song. >> there's no question he's aware the cameras are there. all i'm saying is this. you've got a lot of strong points to make about how this judge is conducting himself in this trial. and now it's all about what he said about lunch and asian food, and i think that it gives leverage to the people who are going to defend him. and say -- >> it's not all about that. look -- >> i mean today it's been all over the place and i just felt like oh, no, you're going to waste the good points. >> no, i think the thing today that's been all over the place is the thing about -- >> the witness. yes, it should be. he said i don't know how you could isolate how the guy's politics would affect how they process the evidence. >> how they process the evidence for the looters. >> seriously, if i like don and you ask me what happened when he shot someone or god forbid when he did whatever he did crossing the street i'm going to say it in a way that's good for don because i like don. >> yeah. >> come on, that really shocked me. >> i was speaking to one of our legal analysts tonight and they said -- i won't say who it was, but said if you put a mom on the stand and don't tell the jury it's a mom that -- it just makes no sense. >> i think what happened was, one, he's old. and i think, two -- age matters, okay? at 75 years of age that's not 55 years of age. it's not 35 years of age. i think age matters because he said two things that didn't make sense. that didn't make sense. and when prosecutor said, hey, look if i've got to follow your rulings so does the defense. and the judge said, hey, i was talking about -- >> the constitution. >> that's 50 years old that law. that's not what the prosecutor was talking about. the judge's ruling was on prior and inconsistent statements and not being able to bring in what rittenhouse said about being able to shoot looters. he wasn't even talking about the same thing. that could be age and therefore not being as sharp on the bench as you should be. >> i don't know. i hate to -- i don't want to be an agest because i know lots of sharp older people, but, houston, we have a problem and i think everybody can see it. and people are afraid to say it. there's a problem. and we also are seeing it in georgia as well. we don't want the black folks in the rooms, the pastors. we have a problem. >> well, that's a lawyer who i had on my show. >> yeah. >> who was absolutely a wild one. >> i've got to run but i've got to tell you this judge, there's an issue, say it. people speak out. >> there are multiple issues. >> there's an issue there. and the good thing is we're bringing light to it. people can see what happens in the legal system, in the court system. and perhaps there will be more energy and vigor for some sort of change when it comes to the criminal justice system. >> if there's a hung jury you're going to hear about all this again. >> yeah, got to go. >> love you, d. lemon. >> love you more. appreciate the conversation. i'll see you soon. this is don lemon tonight. i'm going to get to that. i've been holding this for a while. i've just been sitting here watching, talking to our legal people and i'm like okay, okay, okay on the legal matters it's this, it's this. we live in the real world. we see what's happening. imagine, though, if it was reversed. if it was a black kid with a gun. i have some huge news to tell you about, a dual fight between two presidents, between the sitting president and a former president. and make no mistake this is about protecting our democracy. late today a federal appeals court granted the president's last ditch request to stop a january 6th committee from seeing documents from his white house. a win but it's only a temporary win. and the pressure is biltuilding mark meadows to cooperate. the january 6th committee tonight demanding he appear for a deposition and turn over documents tomorrow morning. we've got a lot to come on all of this. now, back to what i was talking about, kenosha. what a day, right? what a up couple days it's been. defense resting its case in the trial of kyle rittenhouse who shot can killed anthony huber and joseph rosenbaum and wounded gaige grosskreutz. too young to legally carry that weapon. because he says he thought it looked cool. this time the 18-year-old defendant didn't take the stand, so there were no tears today. what we saw was really unbelievable. the judge asking the jury to leave the room twice for the second day in a row while he got into it with the prosecutor. >> it certainly was my impression that we were talking about video of the entire episode. and not it certainly in my mind was not limited to the specific numbers on this observation point list that you're talking about. i'm a little bit challenged when you say -- is there something i'm saying that draws the face you're making? >> i have to say, your honor, yesterday i was the target of your ire for disregarding your orders. today the defense is disregarding your order. yesterday as i said i was under the court's ire -- >> i don't want to talk about. >> i think it's a fundamental fairness issue. >> all right, say what you want to say. >> if i'm being held to obey the court's orders i'm asking the defense be held to that, too. we spent time on this. >> i am going to interrupt you and i'm going to let you talk again. but i was talking yesterday about the constitution of the united states and how the supreme court has interpreted it for 50 years. that's not what we're talking about here today. >> this is the second day of this. and then there was this moment. arguing over a witness' possible bias in painting a pretty rosy picture of kyle rittenhouse. >> does real america's voice have any sort of political bias or agenda or anything like that? >> what is the relevance? >> it goes to the bias of the witness, your honor. >> the bias in what respect? i assume that people -- this is not a political trial. and i don't know how you would isolate a person's particular politics and determine that that person is going to evaluate the evidence one way or another. >> i -- has he not done any background or research on this whole thing? it's not a political trial? okay, maybe in one sense. but if -- and some of this is on the prosecutor, too. look, i don't know what kind of pressure they're under but maybe the prosecutor should have been stronger against the judge in trying to make his case. but if you put a witness on the stand that has said favorable things about the defendant and biased things against the people who he's accused of injuring and killing, and then who gets -- the dead people can't tell their story. let's remember that this is a judge who told prosecutors before the trial began that he wouldn't allow them to call the rittenhouse -- the people rittenhouse shot victims, but he would allow the defense to call them arsonists and looters. >> let the evidence show what the evidence shows, and if the evidence shows that any or more than one of these people were engaged in -- in arson, rioting or looting, then i'm not going to tell the defense they can't call them that. victim is a loaded, loaded word. and i think alleged victim is a cousin to it. >> loot's not loaded, though. rioter's not loaded? what about alleged? what about the dead people who can't speak for themselves? during eight days of testimony in the trial jurors heard from 31 different witnesses. the judge told jurors that closing arguments and jury instructions in the trial are expected on monday. each side will have 2 1/2 hours total for their closing arguments. so i want to bring in kyung lah. and she's going to talk about this story. here's her story. >> we're in the final stretch. enjoy the weekend -- >> reporter: with that closing arguments are now set for monday, testimony ended in the trial of kyle rittenhouse. eight days of testimony with 31 witnesses. the last day of testimony ending as it did through much of the trial, leaning on video from that night. the first victim shot by rittenhouse, joseph rosenbaum, seen here in the red t-shirt. rosenbaum was among the protesters in kenosha, days and nights of unrest after police shot jacef blake. rosenbaum would collide with an armed rittenhouse. this video was taken by defense witness drew hernandez who described rosenbaum this way. >> rosenbaum was charging kyle rittenhouse from behind. here saw it in realtime, and rosenbaum is lunging towards him very clearly and kyle fires. >> reporter: the defense's goal by showing what led up to the shootings is to boost rittenhouse's self-defense claims that the then-17-year-old was cornered and feared for his life. he's pleaded not guilty. a moment his lawyers hoped humanize the defendant who faces a potential life sentence. the but the third man shot by rittenhouse gage grosskreutz whose bicep was blown off by rittenhouse's bullet said he didn't see an emotional man on the stand. >> to me it seemed like a child who got caught doing something more than he was supposed to. more upset he was caught and less upset about what he'd done and what he had taken and the numerous lives he'd affected through his actions that night. >> reporter: the eight day trial was wrought with tension not just from the witnesses but between the judge and the prosecutor after the judge lashed out yesterday. >> don't get brazen with me. >> reporter: another testy exchange. >> yesterday, as i said, i was under the court's ire. >> i don't want to talk about -- why don't we just -- >> i think it's a fundamental fairness issue. >> say what you want to say. >> if i'm being held to obey the court's orders i'm asking the defense be held to that, too. >> i was talking yesterday about the constitution of the united states and how the supreme court has interpreted it for 50 years. >> reporter: but the rittenhouse trial is most noteworthy for being a flashpoint in a battle far beyond kenosha. hernandez was just one of the many capturing the events on the kenosha street. he's an arizona based commentator who works for far right-wing outlet real america voice and posts frequently on social media. >> black lives matter is marxist organization. >> reporter: hernandez testified he was in kenosha to track antifa and blm when it happened. >> that was cnn's kyung lah reporting from kenosha, wisconsin. and by the way my colleague made a point of noting this to me earlier. so take this. the judge presiding over kyle rittenhouse's homicide trial made a strange and offensive joke inside the courtroom today. i want you to listen to what judge bruce shcroeder said as preparing to take a lunch break. >> let's hope for 1:00. >> he appears to be referring to the supply chain backlogs caused by congestion problems in california ports, but his comments were offensive and perceived as anti-asian by some and placing blame on asian people for a catastrophic event happening in this country. john yang told cnn that the joke, and i quote here,er harms our community and puts us in the cross hairs of micro-aggressions as well as actual physical violence. it was only last week tat a juror in the same case was dismissed over a joke about the police shooting of jacob blake, case in point, jokes have no place in or around the courtroom. and so let's just say he didn't mean to talk about asians. why is he talking about if he's saying this trial is not about politics, why is he bringing politics into it by talking about the supply chain? people are not stupid. closing arguments coming up on monday. then 12 of the 18 jurors will be picked to deliberate. i've got two lawyers here who have tried cases in this part of the country. they're dwgoing to tell me what they think is ahead after this. 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(dog whimpers) new vicks convenience pack. dayquil severe for you... and daily vicks super c for me. vicks super c is a daily supplement with vitamin c and b vitamins to help energize and replenish. dayquil severe is a max strength daytime, coughing, power through your day, medicine. new from vicks. the testimony phase of kyle rittenhouse's homicide trial now over. monday will be closing arguments and the judge's instructions to the jury before deliberations begin. so i want to discuss today with patrick cafferty, a criminal defense attorney who represented jacob blake and his shooting by kenosha police officers setoff the unrest that led to r rittenhouse fatally two men. back with us is paul buker. thank you both for joining. patrick, let me start with you because we could talk about all the questions of bias rolling around. one of the defense's witnesses was an arizona based commentator who works for a far right-wing media outlet. he testified he was in kenosha and track antifa and black lives matter when the shootings happened. that is political. the judge says he's trying to keep politics out of this case. you know this judge. i mean, what do you think of this decision or his comments? >> so, don, thanks for letting me join you tonight. as far as politics are concerned what i'm focused on as a trial lawyer observing this is what the potential political orientation of each of the jurors is going to be. so right now you have 18 jurors. it's going to be narrowed down to 12. kenosha county is very diverse, but it's pretty easy to identify what peoples political orientation is based on which part of the county they come from. so i-94 splits kenosha right up the middle. the west end of kenosha county votes the same way that utah does. the east wend basically votes the same way that chicago does. so it's blue, democrat. and eventually you're going to have this down to 12 people. right now you have 10 females. statistically females are -- lean toward being democrats. you have eight males one of whom is of color. statistically men lean toward being republican. so once they spin people out randomly, the gender break down here is going to be huge because of the likelihood that that will identify which political party the individual jurors are oriented toward. >> so what does that -- so as it relates to today then when he is saying this is not political and there is a witness who clearly works for a political organization who's there to track a group that has been part of political discussions, so what does that -- square that circle for me. >> so, again, from my perspective this is about what the jurors heard. there's been a lot of focus on things that have occurred outside the presence of the jury, so the judge talking to the prosecutor and what people perceive to be a harsh tone, things of that nature. the jury didn't hear any of that. so the likelihood is that will have no effect on the jury. as far as the judge excluding the bias of the news organization that this gentleman was from, he basically let the prosecutor get to the bias in a different way by basically asking or allowing him to ask whether this person had posted things that were pro-rittenhouse. so i think that he allowed for the prosecutor to get to that issue without actually identifying which party the witness is oriented toward. generally speaking judges don't want politics to be part of a criminal case. they want the jury to focus on the facts of the case, apply the law to the facts of the case and come up with a decision. >> but it's not like the prosecutor was asking if you're a republican or democrat. he was asking if you have said -- if you have written things or posted things that are favorable to kyle rittenhouse and that are not favorable towards another group. i don't see what -- he wasn't saying if you're republican, democrat, independent. he's just asking a straight out flat question and the judge stopped him. why? i don't understand that. paul, let me bring you in here because you know there's been a lot of back and forth between this judge and the prosecutor, and i want you to watch this from today where the judge brings up a face that he says the prosecutor was making when they got into it yesterday. watch this. >> i'm a little bit challenged when you say -- spl something i'm saying that draws the face you're making? go ahead. >> i have to say, your honor, yesterday i was the target of your ire, for disregarding your orders. today the defense is disregarding your order. yesterday, as i said, i was under the court's ire. >> i don't want to talk about -- >> i think it's fundamental fairness on the issue. >> all right, say what you you want to say. >> if i'm being held to obey the court's orders i'm asking the defense be held to that, too. >> i am going to interrupt you. i was talking yesterday about the constitution of the united states and how the supreme court has interpreted it for 50 years. >> so, paul, what is going on here? and maybe we just don't see that much what's happening in the courtrooms because there's cameras in there now. but it seems like the judge is inserting himself a lot here. >> well, he should. that's his role. i mean that happened all the time and i got dressed down many times. but i believe the government in this case really tried to do an end around. that's what the judge was talking about that he was referring to yesterday was trying to bring in other bad acts or other things mr. rittenhouse might have done. and he also was talking about him talking about the post-arrest silence. however, it's pretty clear that this prosecutor -- and i don't know the gentleman personally, but he's not -- he's not hearing what the judge was saying or he's ignoring it. and he's just pounding away, and i don't know if he's just tempting the judge or not, but he's just not getting the hint to back off. and the judge, i think, is tired. and i don't think -- i know this judge. i've practiced in front of him. he's not a racist. he's not biased. i didn't quite get the humor in the asian thing. i don't know what he meant by that. i don't think he meant anything mean by it, but i think you're right. he just didn't get it. >> finish your point and i want to ask you something else. go ahead. >> i think the prosecutor needs to read the tea leaves here, so to speak. i don't mean to be racist or anything, but to understand where the judge is coming from and adjust his approach to the case, which he has not done. >> listen, yes, the prosecutor could have done a lot of things. i think what most people can agree with that. do you think that the prosecutor -- there's a method to this? you said is he poking him, is he going for something by trying to get under the judge's skin possibly? >> well, that was suggested by one individual that they're trying to throw the case, but i don't believe that to be the situation. they could have easily have done that. i just feel like he's listening. for instance, i would have come back after the noon hour yesterday and appalls anded to the judge, not in front of the jury. but obviously he did something the judge didn't like. and the judge is the judge and he's the one that runs the courtroom. so i just don't see that zeal, if you will, in the prosecutor's presentation of the case. and i just don't think they're hearing this judge is not happy with the government. and you need to adjust. and i've done it and i'm sure patrick has done it. and when things -- you can kind of see that this isn't working very well, i better try another tact. >> can i -- i want to play -- i know you guys want to move on but i want to play kyle rittenhouse's mother tonight on another network. let's watch this. >> the judge is very fair. people that i talk to that lives in kenosha all their lives, they told me that the judge is a very fair judge and he doesn't allow no nonsense in his courtroom. >> patrick, just your response, please, to that. >> well, i can tell you that i've tried cases in front of judge shroeder. he is a no nonsense judge. when he has people he believes or lawyers he believes are undermining his rulings he reacts swiftly, and he's certainly not shy about letting people know when he's upset with them. he's done that in this case. there's only bip a few issues he's folkt sed on. the public has reacted dramatically to those rulings, but again the jury hasn't heard those things. i don't think a lot of these things we're focused on now are going to make a difference to the jury buzz they just won't go about them. >> apparently, though, it was so loud yesterday reporters were saying they were near the jury room or wherever and you could hear the interaction between the judge and the prosecutor. and if they could hear it so the jury can -- >> having tried cases in that courtroom multiple times i can tell you it's a very strange jury room. it's actually on another floor, one floor up from the courtroom. so i think it's unlikely that the jurors heard what the judge was saying. >> they were in the library. >> if they were in the library, that's closer. >> yeah. >> if they were in the jury room they were much further away. >> no, they were in the library. okay, patrick, paul. thank you both. we'll see i'm sure tomorrow and then next week as this continues on. next call logs, poospeech, draft, memos and hand written notes. looks like the committee investigating the january 6th insurrection won't be getting those trump documents tomorrow. e you work with, together in one place. slack. where the future works. 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(vo) buy your next car 100% online. with carvana. this is elodia. she's a recording artist. 1 of 10 million people that comcast has connected to affordable internet in the last 10 years. and this is emmanuel, a future recording artist, and one of the millions of students we're connecting throughout the next 10. through projectup, comcast is committing $1 billion so millions more students, past... and present, can continue to get the tools they need to build a future of unlimited possibilities. so a federal appeals court granting a request to hold off on releasing trump administration records to the january 6th committee. i want to bring in now cnn contributor john dean. and kim whaley is a professor of law at the university baltimore school of law. she's the author of "how to read the constitution and why." good evening to both of you. let's start with kim. so the three-judge panel in this executive privilege case, they won't hear oral arguments until november 30th. for now trump is getting what he wants, delay, delay, delay. but what happens if they rule against him? can trump go to the december circuit court for an appeal to the supreme court? >> exactly, i think that's what will happen if he loses. i think he will given this panel and the weakness of his case. he's essentially saying that his view overrides a sitting president's view as to what to do about presidential records. i think what he'll do is ask for rehearing en banc by the entire panel of judges on the december circuit. that requires a motion to get rehearing en banc. if that's granted then there'll be another round of motions on the merits of the case by the full d.c. circuit. and if he loses there i think he'll go up to the united states supreme court. so this could drag on even though as i said i really think his case is weak. >> wow. this is why i didn't go to law school. so trump's lawyers are saying without judicial intervention trump will suffer irreparable harm, john. what about the harm to our democracy by not getting to the bottom of his attempted coup? >> well, that was one of the arguments that the trial judge blew away, that there was no real harm. in fact, she quizzed trump's counsel during oral argument and wanted to know what was the harm. and he couldn't say this could send my client to jail as potential harm or ruin his reputation, so he really couldn't come up with a good explanation for what kind of harm there was. so i think there is the only harm is as you suggest to the system and the investigation in getting this information out. >> all right. i need to take a quick break. can you guys stick around and we'll come back on the other side? we'll be right back. ordinary tissues burn when theo blows. so dad bought puffs plus lotion, and rescued his nose. with up to 50% more lotion puffs bring soothing softness and relief. a nose in need deserves puffs indeed. 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