that the federal grand jury had handed up yesterday. he's been charged with two counts of contempt of congress, one of those charges relating to bannon's refusal to provide any documents to the committee and the other for refusing to provide any testimony to the committee. his attorney had said he would not cooperate because the former president, donald trump, didn't want him to. he wanted him to expert executive privilege even though bannon was not working at the white house at the time. they decided to hold him in content of court. attorney general merrick garland issued a statement in which he said since my first day in office, i have promised justice department employees that together we would show the american people by word and deed that the department adheres to the rule of law, follows the facts in the law, and pursues equal justice under the law. toda today's charges reflect the department's steadfast commitment to these principles. >> steeve bannon is not the onl one not complying. is there an expectation tigges that all the others who have been indicted or requested to testify will now change their tune? >> there have been, as you said, a number of people close to the president who have been subpoenaed for testimony including kayleigh mcenany, including mark meadows, his former chief of staff. and a number of those individuals have said they would not cooperate with the committee because of this issue of executive privilege. the fact that they brought these charges against bannon, something they haven't done in decades, really sends a significant message they're not messing around here, fred. >> kara scannell, thank you so much. let's discuss this more now with cnn analyst ben ginsberg. ben, good to see you. >> good to see you. >> so bannon appears on monday. what's your expectation of what will be said and done, and how soon after, then, would he actually be testifying? >> well, that's the great question for going forward. so he'll appear and, i think, say very lit the actual court proceeding. this is likely to be a trial without a jury before judge nichols in the district court for the district of columbia. judge nichols has great leeway when to schedule that trial, and that will really determine how quickly this moves forward. of course, it's a case that's likely to be appealed on up to the court of appeals and supreme court. on parallel track with the trump executive privilege claim for the documents in the national archive. there will be a lot of interplay. >> that's interesting, that parallel. trump and his attorneys have now gotten their issue right before the appellate court, and it will be what? november 30th before a decision might be rendered. if it means that the court says national archives, go ahead and share with the january 6th committee the white house documents, that could completely. but if it says no, right, then trump and his attorneys could very well take this to the supreme court? >> yes. i think it's likely that it does go to the supreme court either way. and so then you get into the timeline issue of all of this. but it is a significant step going forward to indict an individual, and it is a significant step forward to have the national archives document the case, which will render a decision of some sort on the strength of the trump executive privilege claim, and they will be interacting. >> so how else -- is there another avenue the january 6th committee can go to try to get the documents? >> well, the documents, i think, pretty much are wrapped up in what individual witnesses will provide. so going after the national archives documents in the way that they are will really send the signal. now, it's possible that some of the people who the committee says are cooperating with them have provided documents and have provided records of their communications with the president, but that's something we just don't know yet. >> let's say the committee also refers former white house chief of staff mark meadows to the justice department after he refused to show up. will prosecutors start, you know, from, you know, ground zero with mark meadows or because there's now precedent with steve bannon, they'll go a different route to try to get him, compel him to testify? >> i suspect they're going to have to go a slightly different route. of all the trump aides, bannon had the weakest executive privilege claim because he hadn't worked for the president since 2017. mark meadows and the other aides who have been subpoenaed were at the time of the activities in which they're interested government employees. so the executive privilege argument is going to be slightly different in their case because of their employment status. >> all right. then there's this new audio recording that was released this week. it's new to everyone's ears, that is, former president trump appearing to defend the threats made against then vice president mike pence during the insurrection. take a listen. >> were you worried about him during that siege? were you worried about his safety? >> no, i thought that he was well protected, and i had heard he was in good shape. no, because -- i had heard he was in very good shape. >> you heard those chants. that was terrible. >> he could have -- well, the people are very angry because it's common sense, jon, it's common sense you're supposed to protect. if you know a voter's fraudulent, right, how can you pass on a fraudulent vote to congress? >> so how do you see this impacting that house committee's investigation, with or without the cooperating witnesses or even documents? >> well, that tape's going to have a significant effect, i suspect. what the committee is really doing is constructing a mosaic. there are lots of different pieces that will go into a frame, and then you have to kind of tie them together at the end. and so donald trump saying what he was saying on the audio recording with jonathan karl is an attitude and a mind-set that will certainly play not only on the general public, but perhaps more importantly on the judges who hear this case will understand just a little bit more of the dynamics involved and the fact that they were dealing with an insurrection that was unprecedented in our history. >> all right. ben ginsberg, thank you so much. >> thanks, fred. steve bannon had no official role in the white house during the trump presidency, but in the days leading up to the january 6th riot, he was a vocal supporter of overturning the election. here's cnn's brian todd. >> reporter: this notorious 6 67-year-old political operative is one of the most embattled in washington as he's charged with colluding during the investigation of january 6. those who covered and worked with steve bannon are not surprised they're in the maelstrom. >> he believes the sheer source of fers analyst is enough to undo our structures. >> reporter: they're at the core of steve bannon's believes and goals, something he alluded to as he started working for the trump white house in 2017. >> deconstruction of the administrative state. >> reporter: at this time, bannon's power and problem empty to it had few rivals. credited with being the architect of donald trump's successful presidential run in 2016, bannon had gotten trump's attention partially because of his willingness to upend the gop. >> what we need to do is bitch-slap the republican party. >> reporter: trump tried to get him a seat on the national security council, was called at times the de facto president and at times was displayed as tough to live up to. >> i remember when he came into the de facto role in the white house. he had this board of all these things they were going to do. >> reporter: bannon found himself booted out of the job for, some say, committing one of the cardinal sins against donald trump. >> trump was is j jealous of th attention bannon was stealing. >> reporter: bannon eventually got back into trump's good graces by using his podcast. and he helped trump plan the stop the steal rally on january 6th and riling up the base the day before. >> it's all converging and now we're on the point of attack, right? the point of attack tomorrow. >> reporter: all of this from a man who, according to one of his representatives, was born into a family of democrats, got a masters at georgetown university, mba from harvard, and served as a u.s. naval officer. >> what do you think drove him so right? >> power, access, money, and fame. >> reporter: they believe he'll return to the axis of trump world especially if trump runs again in 2024. but there's just as good a chance they'll turn on each other once again. a representative for steve bannon did not comment for our story. brian todd, cnn, washington. coming up, we're waiting for the judge in the kyle rittenhouse trial to issue a ruling today after prosecutors asked him to instruct the jury on considering lesser charges in the case. how can that impact the trieal? well, that's next. if you don't have insurance, it's free. plus everyone saves 20% on their treatment plan with flexible payment solutions for every budget. we're here making smiles shine bright so you can start the new year feelin' alright. call 1-800-aspendental or book today at aspendental.com we're carvana, the company who invented car vending machines and buying a car 100% online. now we've created a brand-new way for you to sell your car. whether it's a year old or a few years old. we wanna buy your car. so go to carvana and enter your license plate answer a few questions. and our techno wizardry calculates your car's value and gives you a real offer in seconds. when you're ready, we'll come to you, pay you on the spot and pick up your car, that's it. so ditch the old way of selling your car, and say hello to the new way at carvana. feel stuck with student loan debt? 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>> it's absolutely important for the prosecutor. the prosecutor doesn't have a slam-dunk in this case. not a smoking gun case where you pulled the trigger and three witnesses see that you did that. this case has a lot of overtones taking place, and the prosecutors realize that what a lesser included offense is, the jury can compromise, what we call compromised verdict. if it's just intentional homicide, the jury's either going to acquit or find him guilty, and the prosecutors believe there's some doubt here on intentional homicide. i was preaching that a couple of days. it's like a smorgasbord in vegas. if you want to give them a lot of choices, the jury, so they can pick another charge they can corn victory him of like reckless conduct, reckless -- what we in florida would call manslaughter where it's a reckless conduct, where he didn't have the intent to kill someone, but his conduct, all the factors surrounding this incident showed a recklessness. >> so it's the prosecutor's safety net. so it's surprising, is it not, that the defense would agree to it. >> well, the defense, they win when their client is not found guilty of the number one charge, the heaviest charge where he can get sentenced for life. a defense attorney feels they prevail when the prosecutor doesn't fit the dimensions of intentional homicide. so it would be a win for the defense attorney also. >> yeah. so you mentioned there have been a lot of overtones in this case, but, you know, you can't get past the fact that this was a 17-year-old who was already unlawfully walking around with an a.r. and now this 17-year-old is in a position where he's claiming self-defense, and that is really what this case is all about. but is the jury taking into consideration the offense that was already committed before two people died and another was injured, meaning he was walking around unlawfully as a teenager with an a.r.? >> that's the key for the prosecutor. if the judge reads the lesser included offenses, it allows the prosecutor on his closing statement to get into the totality of the circumstances that a 17-year-old boy leaves his state and travels to this town and is walking around with a rifle at the scene of a riot. those factors have to be considered. it also allows the prosecutor to say, okay, the defendant thinks he's defending himself, but is he really? would a reasonable person say he's self-defense? that allows the prosecutor to argue that. i think it's very fair and equitable for the judge to read lesser occluded offenses in this case. >> interesting. and then, judge, kyle rittenhouse's mom wants the jurors to consider this. i mean she actually went on television today after going on television earlier, she has not been on the stand, but this is how she sees it. >> it's in the hands of the jury, and watching them, they've been taking notes, listening to the truth, and i hope they take that into what the outcome's going to be, not from the media, not from the president of the united states, not from the celebrities, not from athletes. it's about the truth. >> is this unusual, strange, or customary that you would have in this case the mother of the defendant who didn't take the stand but she is going to the airwaves to express herself in this matter? >> they want to prevail upon a public forum. also, the jury's warned not to watch tv, not to read about this, but how do you really know that that's taking place? he didn't seclude the jury. he didn't secrete the jury, the judge. and th and, therefore, this jury might be affected by the mother's talking. we have so much political overtone in this case. it's vigilante justice that a boy who's 17 years old who has no training as being a police officer, just training as a cadet, he's a little puppy dog, does he have the right to travel to another state with a semi-automatic rifle? and then you have the other extreme that says he's a patriot. he's defending our property. he's stopping the riot. that's -- that's the other argument. unfortunately both sides, their arguments are very extreme, very unstable. america, the solid middle america doesn't want any of these events taking place. unfortunately the other two sides appeal to their bases and were left with a judge having to deal with all of these political overtones. >> it's an extraordinary case indeed. judge larry seidlin, thank you so much. >> well, thank you. as we mentioned, the judge in the rittenhouse case has been stirring up controversy right from the beginning of the trial. let's take a look with cnn's kyung lah. >> it makes no sense. you're out of luck. >> reporter: circuit court judge bruce schroeder as animated today as he's been throughout the high-profile murder trial of defendant kyle rittenhouse. wisconsin's longest serving circuit judge, schroeder is a known history buff, connecting with the jurors in a game of "jeopardy!." >> who is florence griffith joiner. >> reporter: he's trying to keep things light with this joke. >> i hope the asian food isn't tied up on a boat in the harbor. you should have come and asked. don't get brazen with me >> i've been yelled at. if you push the line, you will get judge schroeder yelling at you. if judge schroeder is yelling at you, you know you're still in the game. you're not going to get a mistrial. >> reporter: he said he's argued before the judge thousands of times. >> many a defendant have entered a plea bargain thinking they were going to get probation to end up in prison totally to their shock. >> reporter: schroeder's every word, decision, and behavior has come under intense scrutiny in this two-week trial. schroeder has not allowed to call the three men shot by rittenhouse victims, a long-standing rule of this judge, but could be described as rooters or rioters, but schroeder is no stranger to this spotlight from a prior 2008 high-profile murder of a woman still brought up in court today as it was brought out. >> one of the things i read over and over andover again is how i messed up the state against jensen case, which is now pending downstairs. actually i had it 100% correct in the first place. >> reporter: schroeder was a first judge in an unusual state of a woman convicted for shoplifting while on parole. schroeder made her tell every store she walked into that she had been convicted of shoplifting, telling her, it was going to embarrass her. he was overruled saying it falls into the category of shaming. in the rittenhouse trial where national politics and race are clashing, even the judge's ring tone is being watched. that's "god bless the usa" by lee greenwood, one of donald trump's rally songs. >> this judge is political. if you tried to define judge schroeder on the basis of politics, you're going to get lost. what's important to him is if the defendant is found guilty, he's found guilty, and if he's not guilty, he another not be found guilty. >> reporter: closing arguments are scheduled to start on monday. still ahead, a funeral service today for astroworld concertgoer brianna rodriguez as new audio reveals how police responses to the tragedy. we're live in houston next. thew baja steak & jack tender, thicker-cut steak and. wait sooo you're not coming out of retirement? 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>> reporter: we're hearing more how the day unfolded with a time line of events from the houston fire department. first i want to tell you what's going on behind me, with a lot of people coming out for brianna rodriguez's funeral service, 16 years old. a lot of friends and family spoke inside about this teenager who was very talented and dancing and loved by people at her school. >> she was their favorite, and, of course, you've got to reinforce dancing because we don't know what her career, her future would have been, but her dancing got everyone's attention. it was natural, of course, but also you were touched by this warm and loving family. you can see the genuine affection and the genuine leadership that brianna gave. >> reporter: and the congresswoman also said this family as well as the families of nine people total who died at this event deserve answers as quickly as possible. and there are still a lot of questions. we are seeing a time line from the houston fire department that people were breaching barricades as early as 9:00 a.m. and medics were called to help with people's needs as early as 10:00 a.m. as well. this was all 12 hours before the worst of it. we're also hearing audio from the houston police department. take a listen to this as they're discussing how dangerous the conditions are. >> the crowd is superthick. you can't go in there. it's extremely dangerous for everyone. [ indiscernible ] >> if not, try your best to help out. other than that, be careful. >> reporter: it was so difficult for the concertgoers to be careful themselves. they were crushed from all sides. the last person who stied with brianna said the last thing she said was, i can't breathe. >> thank you so much. coming up, covid cases in the u.s. are holding steady. why that might mean we could see a surge in the virus this winter? the u.s. are holding steady. 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yes! heartiness? yes! living life to the flavor-fullest? heck yes. panera. live your yes. now $1 delivery. with mucinex all-in-one you've got unbeatable relief from your worst cold and flu symptoms. so when you need to show your cold who's boss, grab mucinex all-in-one... and get back to your rhythm. feel the power. beat the symptoms fast. a federal appeals court is putting a freeze on president biden's mandated vaccine. nationwide cases have hit a plateau over the last few weeks, but with the numbers leveling off where they are, health experts say there's an alarming potential for a new surge in the next couple of months. we have with us a professor of emergency medicine at oregon health & sciences university. good to see you. >> good to see you. >> this is all so exhausting, is it not? >> here we are again. >> here we are again. is the current case count likely to cause problems in your view this winter? >> well, going into the holidays, especially in cold weather, is always concerning. you may remember i was probably talking with you about this this time last year. cold weather drives people indoors. the holidays drives people together. and i really think at this point in the pandemic, we all feel that we deserve to get together with our friends and family for the holidays. >> that was a different issue last year. people were not vaccinated last year. in this case, more people are. one would think it would make a bit of a difference. >> i think it does honestly. if you have a family, even an extended family, everyone's vaccinated, people who need boosters have them, you know, you'll still be really careful to mask while traveling and it's important to test before gathering when you'll be indoors for a while. now we have all these tools that are very familiar in our arsenal to prevent spread. but when people get together, that means everybody. even people who aren't vaccinated feel the prohibition is lifted, that it's about fatigue, which is totally valid, but it doesn't make the virus any less likely to spread. >> hence why many of us still have to remain very cautious. federal data shows about 910,000 kids. are you expecting the rate of increase will kick in soon, or do you believe, you know, the first week or so is an indicator of the pacing on weeks or months to come? >> i think we still have a lot of barriers to getting kids shots early on. i mean there weren't as many slots as people wanted. i still know a lot of people highly motivated to get their kids shots. i haven't gotten my kids in yet. we're scheduled for later on this week, but we haven't gotten there yet. there's still early interest, and we need to let people connect to shots. but i do think we saw people expressing they would be more hesitant with their children than for themselves. so there are only a third of parents who thought, yes, i'm going to be in the first wave. i think a lot of parents are going to wait and see. we'll get a lot more data as this effort rolls across with house 5- through 11-year-olds are doing. if they do that, that means the kids will be able to enjoy the holidays without as many worries, which would be a wonderful thing. >> right do. you also think it's a shipment or availability thing where pediatricians are expecting to get their supplies by a certain time and they haven't gotten that yet and that also explains, you know, the deficiency of availability for kids' appointments? >> and i think some of it, too, is a work force issue. everybody is overloaded with care right now. i know offices are doing the best they can. remember, we have a huge work force shortage. it was hard enough to get people in for routine primary care and other health care issues. on top of that, we've got this massive vaccination effort. i think people are doing the best with the space and bodies and the work force and the equipment that they have. i think that's part of the bottleneck here. >> right. europe is in a far worse situation. we're seeing it right here in this chart. they're being called the epicenter of the global pandemic again, so mow concerned should we be about, you know, people traveling? how concerned are we to be about what's trending in europe and what could potentially come down the line here in the u.s.? >> yeah. certainly we've all got eyes on europe because they've been a bellwether for the next phase of the pandemic for us and also as people feel more comfortable traveling, i think we really need to be sensitive about case rates here not only where we live but where we're traveling to. of course, part of that is if there are emerging variants, a lot of travel is what encourages spread early. worry, for sure. all of these things kind of converging, seeing increased case rates there as well as in the united states, heading into winter, the holidays, all of these things, make us feel nervous on the health care end. >> let's all hold hands. virtually i'm holding your hand. we're going to get through this. i'm going to stay positive. we're almost there, i can feel it. >> i can too. >> all right. thank you, dr. esesther choo. also good to see you. a school is under scrutiny again after a 10-year-old girl with autism allegedly bullied by classmates dies by suicide. ♪ there's heather on the hedges ♪ ♪ and kenny on the koi ♪ ♪ and your truck's been demolished by the peterson boy ♪ ♪ yes -- ♪ wait, what was that? 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>> reporter: yeah. they're revisiting that report. her family laid her to rest today. at the same time they're also demanding answers from their child's school district, essentially accusing them of not stepping in as their little girl was basically bullied to death as she took her own life about a week ago. now, according to the family speaking through her parents, they first became aware that their little girl was being called the n-word and was repeatedly being bullied by klattmates. they found out about a month ago. they turned to the teacher. they allege that didn't go anywhere. they turned their attention to school officials. in the end according to their attorney they felt disregarded and unheard. we took this to the school district in salt lake city. they refused to comment citing privacy reasons, but they're going to look into it to prevent it from happening again. there was the doj report issued a few months ago, and in it, the doj civil rights investigators basically uncovered what they believed was this widespread disregard by school officials in their attempt to really not address this kind of racial harassment that was happening on campus here, and so now school officials are going to have to take another look after the department of justice said more needed to be done to keep things like this from happening again. >> terrible. of course, it won't bring that little 10-year-old girl back. polo sandoval, thank you so much. the top ten cnn heroes of 2021 have been announced, and one of them will be named cnn hero of the year by you. growing up in maine, linda doughty developed a passion for the array of marine mammals living along its beautiful coast, so when state and government funding vanished and local organizations working to protect these animals closed their doors, she dove in to fill the care gap. releasing a seal is really bittersweet, and as much as i'm excited to see that animal be released, it's also hard in the sense of seeing the animal now gone. >> guys, do you know you're going back to the ocean? >> any animal released from the ocean, the ultimate goal is to release it back into the ocean. i feel a sense of responsibility to help these animals and really it's what i was put on this earth to do. >> wow, what a moment. so since 2011, linda and her team have provided response efforts, assistance, and medical care for more than 3,000 marine animals. go cnnheroes.com right now to vote for her as cnn hero of the year or any of the other favorite top ten heroes. at fidelity, your dedicated advisor will help you create a comprehensive wealth plan for your full financial picture. with the right balance of risk and reward. so you can enjoy more of...this. this is the planning effect. i just became eligible for medicare, and i'm already confused. i just called humana; i talked one-on-one with an agent who suggested a plan that fit my life. you should call too! so i did. turns out an all-in-one humana medicare advantage plan includes coverage for hospital stays, doctor visits and prescription drugs. most plans include dental, vision and hearing too. my agent told me i could save money on prescription drugs. oh! and these humana plans offer telehealth coverage. so i can connect with a doctor from my couch. and humana has a large network of doctors and hospitals. my doctor was already in their network. oh! a humana medicare advantage plan can give me all that coverage for as low as a $0 monthly plan premium. i'm so glad i called humana. humana really makes medicare worth talking about. call and talk to a licensed humana sales agent about how you could benefit from a humana medicare advantage plan. call today. humana, a more human way to healthcare. so i'd like to introduce you to someone. this is congressman richie torres. >> hi, nice to meet you. >> it's nice to meet you. >> you live in a better time than my dad did, right? >> i know a better world than your father knew. i'm part of a long history and many people had to suffer deeply and senselessly, and i'm just grateful i am who i am, i can be a member of congress because of sacrikkcrifices made by people your father. >> i think my dad would be extremely surprised and proud of what's going on right now. >> we've made progress, but we also have a distance to travel. the mission is far from acco accomplished. we have to tell the story of the lgbtq community. >> don't miss a brand-new episode of "this is life" tomorrow at 10:00 p.m. it's taken years but now britney spears is able to take complete control of her life. here now is cnn's stephanie elam. >> reporter: after 13 long years, fred, britney spears is once again in control of her destiny. think about this. this is just before she turns 40 years old next month. this was widely expected to happen in court. of course, the free britney fans celebrating outside of the courthouse here in l.a. as soon as news broke that she was free to control her own destiny, effective immediately. you can see there was pink confetti being thrown, dancers, performers, people hugging with tears in their eyes here. very emotional and a very long journey, and a lot of it because of her free britney fans who have pushed to see the end of this conservatorship. here's something to know. there will be two more court dates to work out the tech technicaliti technicalities, but the judge said she can make her own decisions in her life. her lawyer said safety guards will be put in place to protect herself and her assets moving forward. also in court rosengard saying the time has come to end conservatorship. he went on to thank the judge for making this decision here. it's noteworthy, too, to say there was no objection from any of the lawyers, from britney spears' mother, britney spears' father. remember in september jamie spears said he wanted the conservatorship to be terminated completely, this after those two explosive testimonies from britney spears herself whether where she called in to court to say what her life had been like. the first time we had really heard from her. she said she was forced to be on birth control, forced to perform, and she wanted her father charged with strirship abuse. very serious allegations there. that conservatorship was not terminated a that point, but jamie spears was removed as co-conspirator. everyone expected this could be the outcome. what's also noteworthy is britney spears herself has taken to instagram to celebrate this and celebrate her free britney fans writing, good god, i love my fans so much, crazy. i think i g'm going to cry the rest of the day, can i get an amen. praise the lord. the supporters of free britney very excited to know britney once again can control what sh

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