storms are still going in the morning. a bumpy overnight in tallahassee. wind, 80 miles per hour. those powerlines are going to be coming down for you, tallahassee, all the way down to jacksonville by tomorrow afternoon. and then by the time we wake up tomorrow afternoon into tomorrow night, we start to see the potential for more tornados in the plains. so, yes, big, big weather tonight, tomorrow and evening into the weekend. six tornados on the ground already. and flash flooding is going to be a possibility. and if that's not enough for you, by the weekend, there will be some smoke in the air for all of the northeast, not as much as last time, but smoke in the air, nonetheless. >> not looking forward to that. to our viewers, thanks very much for watching. i'm wolf blitzer in "the situation room." "erin burnett outfront" starts right now.

"outfront" next, sources close to trump say they're preparing for yet another indictment. this as the attorney general fights back against trump's attacks. plus, exclusive cnn reporting from the front lines. ukraine making significant gains across the south. our crew on the scene taking cover as a russian plane dropped bombs nearby. our fred pleitgen is there. and a spoiler alert, the white house trying to squash a possible bid by the group no labels. how much could a third-party candidate hurt biden? let's go "outfront." good evening, i'm erin burnett. "outfront" tonight, team trump bracing for the former president to be indicted, again, this time in georgia. sources close to the former president tell cnn they believe the former president will be indicted there for trying to overturn the 2020 election in georgia. it's a new development, it comes as the attorney general merrick garland is breaking his silence speaking for the first time after the historic indictment of former president trump in miami. garland wasted no time to defend the special counsel jack smith

who, of course, has been at the center of trump's withering attacks. >> mr. smith is a veteran career prosecutor. he has assembled a group of experienced and talented prosecutors and agents who share his commitment to integrity and the rule of law. >> garland's comments come less than 24 hours, of course, after trump had a fundraiser just hours after his arrest and arraignment. trump calling jack smith a thug, the tone pretty consistent with what he generally does. but called the special counsel a thug. the former president also dug in even deeper to falsely claim that he had the right to keep classified documents at mar-a-lago. >> i had every right to have these documents. whatever documents a president decides to take with him, he has the right to do so. it's an absolute right.

this is the law. >> of course, the doj in its indictment lays out how trump allegedly arranged to move boxes and hide them from his own lawyers so that they'd attest under oath returning them all. there is no right for a president to take whatever documents he wants. that is absolutely false. now, of course, wethese were no trump's personal belongings, they were classified documents on nuclear programs, intelligence on foreign adversaries, pentagon battle plans, other highly sensitive documents. and knowing that, this is what trump's former vice president, now 2024 rival mike pence, is saying today. >> i had a chance to review the indictment over the weekend. and this indictment contains serious charges. and i cannot defend what is alleged. >> now that's an important statement from pence. now he's had a chance to think, to read through this. he's saying he cannot defend it. we are covering multiple angles of this story tonight.

evan perez is in miami. nick valencia is in atlanta. trump's team is expecting an indictment there. evan, the big question tonight in the current indictment in mar-a-lago in the classified documents case that trump possessed, obstructed justice on, and disseminated according to the department of justice, is what's next in the case. what are you learning? >> reporter: well, erin, there's a lot of legal fighting that is about to begin. you certainly heard that from the former president. and we expect that that's now going to shift into the courthouse behind us. we know that his codefendant is facing his own arraignment in a couple of weeks. and then there's a lot of complicated issues about these national security documents that are at issue in this case. the judge who is overseeing this, aileen cannon, is going to have to oversee the access to those documents, discovery by the justice department, is going to have to start turning over documents to the former

president's legal team. and, of course, once the former president finalizes his legal team, again, remember, he's still looking for lawyers to represent him in this case, they're going to have to go get security clearances. we know that judge cannon, obviously we know she's very new to the bench. but here's how new she is. the "new york times" went through the "bloomberg" database and found 224 cases that have been assigned to her since she's been on the bench just in the last three years. four cases of all of those 224, only four went to trial. for those four cases, 14 days in total of trial. we know that the government is anticipating that their case alone, erin, is going to take about a month to present before this judge and this jury. the new judge is obviously going to have to wrangle with a lot of issues that she has never had to deal with before in her

courthouse. erin? >> evan, thank you very much. and that's, of course, what's happening in the current indictment. but sources close to trump, as we said, are telling cnn they believe he'll be indicted, again, they believe the next time most likely in georgia. we are learning tonight that law enforcement officials there are actually taking steps to prepare. we're actually on the ground in miami. nick, you had a chance to speak with the sheriff there. what did you learn? >> reporter: it's no secret that there's been months of anticipation about the potential charges against the former president here in fulton county in atlanta. i spoke to the fulton county sheriff who told me he was going to look at the safety and security situation should the former president be indicted here in atlanta. and it's interesting because in the days after trump's court appearance in new york, i spoke to the sheriff, and he told me he had sent a team up to new york to assess the safety and security situation. we now know that he did the same in miami. this is what the sheriff's office is saying in a statement to cnn. saying, based on notice provided

by the fulton county district attorney's office regarding the intent to announce charging decisions this summer related to the criminal investigation into attempts to influence administration of the 2020 georgia general election, the fulton county sheriff's office is coordinating with local state and federal agencies to ensure that our law enforcement community is equipped and prepared to protect the public. and it was in april that the district attorney here in fulton county, fani willis, sent a letter to law enforcement officials which included the sheriff pat labat telling them that she anticipates to make her decision about charges between july 11th and september 1st. we now know this has been a long-running investigation. she started in january 2021 in a now infamous phone call between the former president and georgia secretary of state brad raffensperger. this has been broad in scope. looking at the potential of charges of racketeering as well as obstruction, potentially against the former president donald trump. >> nick, thank you very much. ryan goodman is with with me now, the former my is counsel of the department of defense and

alyssa sarah griffith. let me just start with you, ryan, with what nick's talking about, sources close to trump say they do believe that he'll be indicted at least one more time. so there could be more doj, january 6th. they believe it will likely be in georgia. do you agree that that's the next? >> um, i agree that that's at least one of the next. in mid- -- early to mid-august, it definitely appears as though he will be indicted in fulton county, georgia, and that there was one question mark, maybe, placed on this af the indictment was handed down by the department of justice, which is letitia james, the new york attorney general said these cases are going to be put on hold. today the fulton county district attorney said a federal indictment will have no impact on our election investigation. so it looks like it's full steam ahead early to mid-august. and i don't know if that'll be the next one. that's the only pause. i do think there's a pretty good

likelihood of a january 6th indictment. i don't think it's necessarily going to be after august. >> right. and the january 6th, of course, is jack smith under his purview of the other part of the criminal investigation. so, team trump, obviously, they're saying they expect another indictment. they're trying to put a spin on the current one. they're saying we've raised $7 million since he was indicted just in one week. and people say last night multiple sources who were there at his fundraiser saw he was truly reveling. does he really just think this is all good for him? >> no. it is spin, and i think there's some expectation-setting by saying there may be another indictment. there may be two other indictments, january 6th and fulton county. to understand donald trump, you have to realize he actually does care about legacy, which may sound bizarre based on his actions and his time in the presidency. but when he saw those words united states versus donald trump, i know that that was sobering for him, and i know that it's something that i have to imagine there was a lot of yelling, there was a lot of behind-the-scenes frustration with staff.

but what they're going to do, they're going to move forward in campaign mode, his team's going to try to keep him focused on the campaign. his words, everything he said since this came down, basically, has been about the case. his truth social is not about his vision for the future. and just real quick on the fundraising, about 2 million of that was committed before the indictment came down. so i'm not sure it's necessarily all reflective of the indictment. >> well, that's fair. what about evan was just saying? "bloomberg" law did this analysis that terminal is magic, the things they can do. 224 criminal cases have been assigned to judge aileen cannon. only four of those went to trial which added up to a total of 14 days of total trial days. now, but look, experience matters in a lot of things, right? no matter how good she is or isn't. does it matter here? >> it matters a lot. also the "new york times" reporting explained that the four cases that amounted to 14 days were very simple cases, one of them is like a felon who

had -- >> felon charged with legally possessing a gun. >> why didn't that person plead guilty on that question. so she's had 14 days. it's almost like zero days. and so the case that she's about to get is a sophisticated case. you would in fact want a judge that's not just had a lot of experience but is also headed in the national security realm. this is going to be a lot of motions about whether or not classified information can be entered at trial and in what form. that's, i think, it puts u.s. national security at risk if there's too much information shared and you really want somebody that has both the gravitas to control the courtroom but also that experience. >> when are we going to know if she's recusing or getting recused or someone's stepping in? do we have any sense of a time line when we're going to get answers to these crucial questions? >> no. and the problem is in some ways is that the legal community is divided should the justice department go right away and ask for a recusal for her to step aside. and if she says no, then they

appeal it. >> i would think one of the reasons they want to go quickly is to say this is based on how she ruled in 2022 with what seemed to be extraordinary bias. we're not waiting to see, we already have the track record. but who knows, they could do that at any point. you would think they need to start doing it because these motions are both to start coming from both sides. >> vice president pence, i played what he said as he said i cannot defend what is alleged. you were his press secretary for a while, but he seems to be changing his tune. at first he was dismissive of bragg. then he said i cannot defend. but then he also seems like he's trying to have it both ways. here he is. >> i had the chance to review the indictment over the weekend, and this indictment contains serious charges. and i cannot defend what is alleged. i just can't. i can't believe the politics didn't play some role here. >> well, i applaud him for the

first thing he said there. this is why it's so important that candidates not get out over their skis and make comments before they've read the indictment because i noticed both nikki haley, tim scott, and other top-tier candidates came right out of the gate before reading it, and then kind of walked back their wording as well. what's happening is i think a lot of consultants, a lot of advisers are getting into candidates' heads and telling them you can not alienate that 30% that's going to be with trump so you have to kind of walk a fine line. but this is also very serious. you risk losing -- anyone who really understands the national security implications of this, it can come off insincere. and i think if there were any time to part with donald trump, it's the second indictment and it's when you're polling 30 points behind him. >> all right, well, thank you both very much. and, next, i'm going to talk to a republican senator who's on the intelligence committee. he calls the trump allegations very serious. and he also has a message for his fellow republicans who are downplaying the charges. plus, we take you to the front lines of ukraine's counteroffensive as we're

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n tonight, $7 million, that's how much the trump campaign says it has raised. the former president sending out a flurry of emails since friday asking for donations holding a fundraiser at his bedminster resort last night and making the indictment really the entire core of his entire campaign. kristen holmes is live from bedminster. kristin, you've been talking to people in trump's inner circle. what are they telling you? >> reporter: well, erin, first of all, using the word flurry, that is very kind of you. we're talking about emails every ten minutes since he was indicted. it has been filling up our inbox. i do want to talk about those numbers because they are incredibly significant. i had spoken to a number of republicans, a number of allies who despite the fact that trump has publicly said that any sort of second indictment would give him a boost in the polls and a boost in fundraising, not everyone was so sure.

would people still be shocked into donating after a second indictment? so obviously the trump team is feeling very good about these numbers. you talk about how this indictment is the center of his campaign. we've entered a point where his legal issues are completely melded with his campaign. i talked to a number of advisers last night about how exactly they are going to navigate these legal issues and the mounting legal issues with a campaign. and they said they believe that they have a playbook down. that's really what you started to see on display yesterday. and this is in two parts. one is playing this out in the court of public opinion. and that involves trying to take control of the narrative. that's why we saw them go to versailles cafe, that cuban cafe yesterday at the court appearance. they knew there was no camera. they wanted to control all of the images that were going to come out of this day. the second time you saw this was when he gave those remarks. he obviously was talking about this being a political hoax. it could've been a campaign

speech. i spoke to people in the audience ahead of his speech who said they hoped that he would give a path forward for the future. but obviously he was fixated on those legal issues. so this is going to be one in the same. but these sources say that he is going to continue campaigning as normal. he's going to have these events. they were planning even last night where the next rally would be. and while he does so, we learned that walt nauta will be by his side the entire time. >> all right, kristin, thank you very much. "outfront" now, republican senator mike rounds from south dakota, a member of the senate intelligence and arms services committees. he has endorsed tim scott for president. and senator, i really appreciate your time. look, given the committees you're on, you know more about classified documents, what they mean for national security, what they can mean for american lives, than almost anyone. how do you react to just the basics here? how the doj says trump was storing and sharing national

security classified documents? >> first of all, we do understand that it's a very serious issue because classified documents have to be stored properly because they contain information that can be harmful to our country to men and women in uniform and so forth. it's a concern that we have any time anybody in the executive branch is found to have had classified documents and not storing them correctly. whether it's the president, a former president, a former vice president or a secretary of state. and so in all of those cases, you have issues where there's a question about how they stored classified documents. in congress, i think we really try our best to take care of those documents. we leave them in classified space in what we call a skiff. we read them in a skiff, or unless we have someone from the intelligence committee bring, you know, a document, a specific document into our office with no one else in there, and then without talking or saying

anything out loud, you can read something, but it goes right back into a particular security bag and then back out again. understand the executive branch of government may take a little bit different view of it. but still those classified documents are very valuable. >> and i understand your point, of course, senator. but there is a special counsel, of course, investigating president biden's classified documents, as you and i both know. he immediately and voluntarily turned those over as soon as his lawyer found them. the former vice president pence also had documents, as you say, returned them voluntarily. the doj investigated and has said that they will not file charges against him. so there have been -- there are investigations in these other cases. the situations are very different when it comes to returning them, voluntarily obstructing and dissemination, sharing the information with others. do you believe -- do you believe that these cases truly are different from what you read in the indictment? >> i don't think either of the first two that you mentioned

tried to obfuscate or to deny that they had them. that is different, and it's one of the reasons why -- and i'm not going to try to make up any excuses for the former president. if they find him guilty of what they're accusing him of, this is a very serious offense. at the same time, it's one of the reasons why i'm supporting tim scott for the presidency. i think tim comes with a clean sheet. he's looking forward, not backwards. there are no questions as to his integrity. he's a guy that's got a smile on his face. i see real opportunities. i think you're going to find as more people start to look at who might be behind door number three, i think they're going to find that a guy like tim scott may be able to bring our country together. that's one of the reasons why i think a lot of us will be supporting him. >> you obviously have made a decision. you've come out early. and you've chosen senator scott as the person you're going to support. some of your colleagues, though, obviously don't support him. but they're defending a lot of

the things that you aren't defending. they're defending specifically that the documents were kept inside a bathroom. this has become sort of a sticking point with a few of your colleagues. let me just play it for you. >> was that a good look for the former president to have boxes in a bathroom? >> i don't know. is it a good picture to have boxes in a garage that opens up all the time? a bathroom door locks. >> there are 33 bathrooms at mar-a-lago. so don't act like it's just in some random bathroom that the guests can go into. that's not true. >> senator, are you comfortable with defending it because there's 33 bathrooms and so maybe no one would walk into this one and so that's okay? i'm not trying to make light of this. that was actually said. >> i'm not defending either one of them. we don't know who went into president biden's garage. we didn't know who went in to check out his corvette. we know that that was wrong. we also know that those classified documents should not have been stored in bathrooms.

we know that. but there's an equivalency there that i think some of our members are saying what's good for the goos is good for the gander. and they try to make the equivalency and try to make people understand that some of this stuff is happening on both sides of the aisle. i think the question for folks is why is there a prosecution on one side and not on the other, particularly going back as far as former secretary of state hillary clinton when thousands of emails disappeared and whether or not there was actually an ongoing investigation there or not. and that's the equivalency that's tried to be made. i try to separate them and i try to say that both should have been looked at very carefully. i don't have the answer as to why she was not prosecuted, but that's a question that some people have. i want to move forward and that's the reason why a lot of us, i think, will turn to new faces. >> senator, so you have been taking a stand on artificial intelligence and the dangers that it poses, and every single day we are all being made more amore aware of this. we've got a new survey that

shows that 42% of ceos, nearly half of ceos in america, think that ai has the potential -- and, senator, i'm not making up words here, they soy to destroy humanity in five to ten years from now, to destroy humanity. you organized the first in a series of senate briefings dedicated entirely to ai yesterday. and you did that with the majority leader schumer. do you agree that ai has the potential to destroy humanity in five to ten year? >> i don't see it that way. i do see that we have a couple of different issues. first of all, there is both good and bad possibilities with ai. ai is a tool. so if you want to do bad things with ai, you can. but you can also do some really good things. we shouldn't walk away from that. we've got to manage the risks. but we've got to take advantage of the opportunities as well. and even if we decided not to, if we wanted to take a pause, our adversaries aren't going to. china has a police state. they're using ai to further their police state. we don't want that to happen in

the united states. >> all right, senator, i appreciate your time. thank you very much, sir. >> thank you. and, next, we're going to take you exclusively to the front lines in ukraine. our own fred pleitgen is there and was actually forced to take cover today. >> so we've had to evacuate to this shelter now because apparently the guys fear that there could be aviation bombs coming in fairly soon. and an update on the former marine who placed a homeless man in a deadly choke hold on a new york city subway. we're now learning that daniel penny has been indicted. details on the charges, ahead. yy for whatat you need. check it out, you could saveve $700 dollars justst by switching. ooooh, i'll look into that. let me put a reminder on my phone. saveve $700 dollars. pick up dad from airport? ohhhhhh. only pay for what you need. ♪ liberty. liberty. liberty. liberty. ♪

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tonight, new video from ukraine's front lines as the country's military engages in, quote, extremely fierce fighting. these are the roads of a just liberated town in eastern ukraine. you can see them littered with destroyed military vehicles, dead russian soldiers who are left behind as the russians retreat. just horrible images everywhere you look. those are the prepared meals, also leaving all of that behind scattered all across the ukrainian countryside as the head of the notorious private wagner group that yevgeny prigozhin is praising how ukraine is fighting in the counteroffensive and saying that russia's military needs to do more to stop them. >> translator: they are undercutting certain units on the zaporizhzhia direction. there's a need to mobilize, to gather up the forces, and to understand that they won't stop until they get one upside the head or unless they get the

result that they want. so, for now, in my opinion and according to the estimates of the boots on the ground, not enough is being done to fend off the enemy. >> fred pleitgen is "outfront." he is on the front lines, and he is in southeast ukraine tonight. >> reporter: ukrainian forces laying into russian troops holed up in southern ukraine. this video shows what was the russians' final stand here, the brigade says, but vladimir putin's army continues to put up stiff resistance, a drone pilot tells me. they are good grunts, he says. sometimes it's very difficult to knock them out of those positions. but the ukrainians have been making significant gains here after launching large-scale offensive operations across southern ukraine. heavy combat now nearly constant. >> this is the area of ukraine where the heaviest fighting is currently taking place. and you can see what it's done

to a lot of the buildings in the cities and villages around this area. and that fighting is set to get even worse. >> reporter: we're with the 68th yager brigade, the soldiers confident and grateful for u.s. supplied vehicles, saying it's not only the firepower, but also the protection that matters. a lot of times it saved my life, he says. it saves our lives every day from shrapnel, shelling, and bullets. but some vehicles have already been lost, and the russians continue to fire back with frequent artillery barrages, but also using jets to try to hit ukrainian-forward positions. we had to take cover as a plane dropped bombs nearby.

not the only time we had to scramble. so we had to evacuate to this shelter now because apparently the guys fear that there could be aviation bombs coming in fairly soon. the situation here is still very kinetic. there's a lot of shelling still going on. >> reporter: still, the deputy brigade commander says his soldiers are just getting started. our counter-attack will definitely be successful, he says. we believe in victory. we are moving towards our goal. we are advancing. on this part of the front line, the ukrainians believe they have the gear, the man power, and the determination to advance far into russian-held territory. however, erin, the troops on the ground for the ukrainians, they do face a lot of threats from the russians. and a lot of them are actually in the air. we had the jets drop bombs.

there's also helicopter gun ships that the russians are using and also combat drones. all this as the ukrainians are advancing on layered russian defense positions, very difficult to get through those, anyway, and now they have that threat from the sky. nevertheless, ukrainians are saying they believe they can be successful, but they do also acknowledge it's going to be a really tough battle. erin? >> all right, fred, thank you very much. and i'm glad that you're safe tonight in southeastern ukraine on the front lines. i want to go now to retired army lieutenant general ben hodges. i want to begin with some extraordinary footage that was first published by the "wall street journal." armed ukrainian drone is flying above this trapped soldier. this is on the utterly destroyed front lines in bakhmut. you see this soldier, and you see the explosions around him. his fellow soldiers lay dead on the ground. you can see multiple dead people. so he's pleading for his life,

communicating by hand gestures with the drone, which is someone operating the drone from far away. so he's communicating. the operator sends him a note telling him to surrender. and the drone ultimately then guides him to a ukrainian position where he is taken captive. it is pretty stunning footage to watch, general. what do you think of it as you see it? >> well, this confirms what we have thought, erin, that most of these russian soldiers don't want to be there. they don't trust their leadership, they have not been properly trained or equipped. and they know they're in a very bad situation. so, a soldier like that sees an opportunity, and, of course, ukrainians routinely are innovative in how they do things using drones. this also reminds me of desert storm. you may recall there were several iraqi soldiers surrendered to a helicopter. they did not want to be there. >> it is amazing, though, to watch it, and to think that you

always talk about how drones are so separate from the operator. so many of these drone operators are very nearby and the drone could come back and drop, just imagine the whole thing, the humanity of it amidst this. our fred pleitgen was just showing today, you know, he had to take cover because they are worried about aerial bombing obviously in an area, he described it very kinetic and a lot of shelling. this is an area where ukrainians are reporting partial success on the counteroffensive. you've heard yevgeny prigozhin. he, overall, said today that the ukrainians are moving methodically, that russia has to do more. what's your view of the situation on the ground tonight, general? >> well, it is interesting or ironic that mr. prigozhin is probably the most reliable source from the russian side. it's in his interest, of course, for the russian general staff to be made to look to be ineffective. that's part of his business model. but, as i listen to what he was saying, i think it was compelling that there is a sort of a grudging respect for the

ukrainians and what they're doing. on the ukrainian side, they have taken the road now to liberate crimea, to eject the russians from their country. but it's still early days. as you know, there's going to be a lot of confusion, the reporting coming back to commanders about what's happening. this is the nature of war. so there is going to be some uncertainty. but i don't think we've seen the main attack yet. when you start seeing two or three large armored brigade, hundreds of vehicles together, that's the main attack. >> all right, as we await that, thank you so much, general. i appreciate your time. and, next, the death of this man on a new york city subway sparked national coverage. and tonight the retired u.s. marine who placed him in a deadly chokehold has been indicted by a grand jury. and we're going to tell you all about those charges. plus, we are learning tonight that the white house is trying to squash a potential third-party bid. are they right to be concerned?

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new tonight, cnn learning the retired u.s. marine who placed a homeless man in a deadly choke hold on a new york city subway has been indicted. daniel penny held down jordan neely for several minutes after passengers say neely was, quote, acting erratically and shouted that he was hungry and didn't care if he went to jail.

penny has been out to bond. "outfront" now, john miller, our chief law enforcement, and intelligence analyst breaking this reporting for us tonight, along with paul martin, criminal defense attorney and former prosecutor. john, i know you've been talking to a lot of people who know exactly what's happening here. what more are you learning about the charges penny faces? >> so the charges, manslaughter in the second degree, and that charge requires them to go into court and prove that he recklessly caused the death of another, and the reckless is defined as something that he did in this choke hold that a reasonable person would've known could've had a substantial risk of leading to the death of another. of course, from daniel penny's standpoint, his lawyer has called this a self-defense case. they're going to have to battle that out. >> paul, prosecutors are saying the incident, quote, and here's how they describe it. >> at some point mr. neely stopped moving, the defendant continued to hold mr. neely for a period and then released him. there's been this whole question of exactly what you're saying.

they've been at the present timing to the grand jury that he should've released and the defense is saying that it wouldn't have been reasonable to. >> i'm surprised they didn't charge something even higher. i believe a reasonable view of the evidence, you could believe that when you put your arms around someone's neck and you intentionally do it, you intent to cause harm. i was a little surprised that the prosecutor downgraded it. i thought it could go further. but i can understand how the nature of the charges on both situations can come into play. >> six weeks since the death of jordan neely. his family wanted to know why daniel penny wasn't arrested the first night. this is something that had caused a lot of concern. what have investigators said about that decision? >> so, the manhattan district attorney asked detectives not to go forward with the arrest that first night because of this self-defense claim. they wanted to know more. that man interviewing the five witnesses that they could locate who were on the train car to say were you threatened, did he

strike you, was there any assault? that means going over the videotape, that disturbing tape we've seen of him in the choke hold. it means playing the 9-1-1 calls of people saying you got to get here, there's a crazy guy on the somebody, there's somebody holding him down. and, of course, what we don't know, what i don't know is did daniel penny go into the grand jury and tell his story? that would have been his option. but anything he said in the grand jury could've been used against him later. >> right. so we don't know whether that actually happened. paul, it's interesting because penny's attorney spoke to cnn recently. he was trying to explain why his client, why penny felt he had to take such drastic steps to restrain jordan neely. making the case for why not only would you do the choke hold, but hold it for so long. and here's what he said. >> someone entering the subway system -- again, a closed subterranean container where, you know, the sort of tools that we might use for things like de-escalation and avoidance if

you're standing in times square and someone's acting erratically or menacing people where you say, i'll just keep my head down or i'll turn the other way and walk away isn't really an option on the subway. >> is that defense compelling? >> so here's the problem with that defense. they first have to confront the fact that the victim must've done something that would cause the death of someone else. he's not a police officer in this situation. he's a regular citizen. so he has to show that the actions of this victim in this case was going to cause the death of himself or someone else. being mentally ill or harassing people doesn't rise to a level where you can take -- >> where you can put someone in a choke hold. >> there you go. there are two interesting angles when you get to the back and forth which is, one, daniel penny and the other passengers and the 9-1-1 call are said he was screaming, i don't care if i go back to jail, and they were wondering what is he about to do, as he threw his jacket down and balled up his fist, that he

could go away for life for. daniel penny said that's when i intervened. the other issue, of course, is that the victim here, mr. neely, suffered from years of mental illness, had been arrested for three assaults on the subway, and dozens of other crimes. but daniel penny couldn't have dispo known that at the time. >> but when you see someone saying, i don't care if i go back to jail again, you can tell was it reasonable, that's the question that goes to a jury. >> was it reasonable for him to believe that this man was going to cause harm to himself or to someone else? meaning, to mr. penny. if mr. penny reasonably believed it and he was blereasonable in beliefs, he's justified in his actions. >> so now this goes to trial. so we'll all be talking about it more. "outfront" next, how much could a third-party candidate hurt biden and trump? harry enten has the numbers. and you're looking at live pictures out of minnesota where it looks very familiar, guys,

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tonight, fears of a third party spoiler. cnn learning biden advisers met with republicans who are against trump, joining forces in the hopes of squashing a possibly third party bid by the group no legals. votes away from biden, and that would help put donald trump potentially back into the white house. so, harry enten is outfront. let's start with where america's two party system has us right now. biden and trump are the front runners. biden is of course the incumbent, so he's the democratic nominee. and trump is by far the front runner. how do americans feel about that? >> first, let's just put it out there in the open and just say that there is a large portion of the american electorate that

doesn't like either of these two gentlemen, right? you look at their favorable ratings. they're both south of 40%. less than 40% of americans have a favorable view of joe biden. less than 40% of americans have a favorable view of donald trump. there is a huge chunk of the electorate, about a quarter, who don't like either man. and that is why you're hearing all these rumblings about third party bids because they're all worried about that 24%. where might they go? that's what we're talking about here. >> i think of ross perot when i think of third party. i think of the paerennial green party. is there a legitimate opening for a third party candidate in 2024? >> i think the conditions are rife for it. there's going to be a third party and it never seems to pan out. look at the two years in which you had the two major candidates be not quite so popular. what were those two years? you mentioned one of them, 1992, ross perot of course came in

with a little less than 20% of the vote. another year, the year the two nominees were least popular was 2016. and in that particular year, we had gary johnson, jill stein, adding up to well more than 5% of the vote when you throw in evan mcmullin. so, i'm not necessarily sure we'll get a third party candidate this year. but what i will say is the conditions are ripe for it. >> and just to make that point in 2016, 5% would have caused a blowout had the numbers gone to one or the other. who stands to lose the most if there is a third party candidate this year? >> this, to me, is the interesting question because this is what this meeting was all about. i'm not necessarily sure i necessarily buy into the fact that a third party bid would necessarily hurt joe biden cigly. why? look at the 28% of the electorate that held a favorable view of neither donald trump nor joe biden. what do those voters say 2024?

they favor joe biden but just by a little bit. it's 41% to 34% donald trump. this is an average of three polls. the fact is, that's not a huge margin. could it make the difference in a really tight race? sure, it could. but to me, the fact is that these voters who don't have a favorable view of either one, they're breaking much more evenly than you might expect. coming up on "ac 360," rescued after surviving a plane crash, how did they do it? that story at the top of the hour. next here "out front," you remember the apocalyptic images of new york, mars. tonight, a warning the smoke could be returning. with flonase, allergies don't have to be scary spraying flonase daily giveves you long-lasting, non-drowowsy relief. (psst psst) flonase. all good. ♪ these are the people, who help you stay well. ♪ ♪ searching lower prices, ♪ ♪ and brands you love on the shelves. ♪

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tonight, summer of smoke. record setting wildfires continue raging in canada, and they're keeping smoke in the skies in the united states. new satellite images showing smoke from the wildfires moving over the midwest and the northern plains. the effects are far reaching. the air quality reaching code red levels in minnesota tonight. that's unhealthy conditions for

the general public. the video you're seeing here, that's the plumes in minneapolis. the person who took it told cnn that on a clear day, you can see all of downtown. now this is what it looks like. yuk you can see that the sky is completely blanketed. it comes after smoke from the fires made its way to new york and had the sky looking like something out of an apocalypse movie or like mars, and that could be coming back, some smoke stretching from washington to boston this week. it's not clear how dense the smoke may be, when it will arrive, but we have been warned, it could be on and off, heavy at times, impacting the entire summer for the east coast. thanks so much for joining us. you can find tlatest show of our podcast. you can search your favorite podcast app as well. it's time for "ac 360" tonight it's time for "ac 360" tonight with john king. -- captions by vitac -- www.vitac.com john king in for anderson

tonight.