November 22, 2021 

Read a transcript of the segment below.

JOHN BERMAN, CNN GUEST HOST: So just days after a federal judge said the former president was responsible for the attack on the Capitol and a Capitol rioter was a “pawn provoked into action,” another federal judge is going after the former president for lying about voter fraud during the 2020 presidential election. And today a different judge took it a step further. During the hearing for a Capitol riot defendant today, Senior District Judge Reggie Walton said former Vice President Al Gore had a better – had better standing to challenge the 2000 election results, but that he was, quote, “a man” and walked away. 

The judge also was told defendant Adam Johnson, who was photographed carrying House Speaker Nancy Pelosi's lectern through the Capitol on January 6, that he was concerned he was, quote, “gullible enough to come to Washington D.C. from Florida based on a lie, and that the person who inspired him is still making those statements.” That person, of course, is the former president, who continues to spread lies about the outcome of the 2020 election.  

Joining us, two people who have experience in federal court: former Federal Judge Nancy Gertner, and former federal prosecutor and CNN chief legal analyst, Jeffrey Toobin. 

Judge, let me start with you. Is it unusual for a federal judge to weigh in like this – questioning the former president's manhood? 

NANCY GERTNER, FMR FEDERAL JUDGE: That's a great question, questioning the president's manhood – no, that's not usual. But it's certainly not unusual for a judge to want to give some context to a sentencing. You know, you – we are all – this is a moment when you address the defendant, and you say that what you did was wrong, and, you know, you have to sort of get your life in order – all the kinds of things that a judge might do at sentencing. 

The problem here is that the crime itself that these guys were charged with is relatively minor. It's essentially disorderly conduct in the Capitol. So the crime doesn't convey the seriousness of the moment, so the judge is trying to say, you know, this was very, very serious. So as far as questioning the former president's manhood that is in a separate category. But I can see it was part of a larger picture. 

BERMAN: Jeff, what do you hear in that? 

JEFFREY TOOBIN, CNN CHIEF LEGAL ANALYST: Well, you know, perhaps Judge Gertner can correct me if I'm wrong, but federal judges are actually human beings. And I think you need to realize the context here. These judges in the district court in Washington are hearing dozens of these cases, one after another. I mean, there are likely to be hundreds of cases, ultimately. And they're frustrated, because they keep seeing all these mopes – to use a technical legal term – you know, being brought in, pleading guilty, but they don't see a single person who has org – who organized this rally, who conspired with these people, none of them have been prosecuted. And it's frustrating to them, because that's what they're used to seeing in federal court. They're used to seeing higher level criminal – higher level criminals, and they're getting all these losers instead. 

BERMAN: So Judge, what about what Jeffrey is saying right there? Are these judges trying to operate on two planes here? They're – yes, they're sentencing, and they're talking to the people who's standing right in front of them, but they're also talking to the larger issue? 

GERTNER: Sure, they're talking to the larger issue. There's no question. But that's part of the, you know, the ceremony of sentencing, is also talking to a larger and a wider audience. And I mean, I agree with Jeffrey, that the, the, you know, the more serious people have really not come before – we haven't seen a lot. There are a couple of more serious cases coming down the pike. And this is really like, this is disorderly conduct in the Capitol. And the only way to convey the seriousness of the moment to the wider public and to the defendant is to say what they have been saying. Otherwise, it becomes an empty gesture. 

And I agree with Jeffrey, by the way, that federal judges are human beings. I just want to make that clear. 

BERMAN: And Jeffrey – 

TOOBIN: We agree about that. But, you know, there's, there's another part. Well, there's another part of this, and Chief Judge Beryl Howell has made this point, which is, there is some unhappiness among some of these judges that the Justice Department is not prosecuting serious enough crimes here. There have been a lot of misdemeanor cases. Now, mostly those are the ones that are moving through the process first, and there are more serious felony cases in the works. 

But I think that's also what's going on here, is that there are judges in that courthouse who think that the Justice Department is going too easy on these people who invaded the Capitol. 

BERMAN: So Judge, you know, this other federal judge last week who suggested that former President Trump had some responsibility for the attack on the Capitol, and called the rioters, quote, “pawns” – you know, if he has responsibility for what happened there, is it legal responsibility? 

GERTNER: That's not for these judges to decide, obviously. That's for the January 6 commission, that's for whomever is doing the investigation in Georgia with respect to election issues, that's for maybe the Justice Department to be looking into what his relationship was to these events. That's a – that's not for them to decide. They don't have that in front of them. 

But I mean, Jeffrey was right, Jeff was right, that this – these are not the kind of usual cases you see in federal court. But part of the problem here is that the prosecutor had a limited menu of options. There are minor disorderly conduct in the Capitol cases. And then there are the bigger cases which require proof of conspiracy. They're, you know, arguably, you know, interfering with the election, sedition, that require more substantial proof. So there's sort of nothing in between. 

And I think that's why the Department of Justice has been doing what it's doing, because they don't have, they don't have very many things to – they don't have very many weapons to deal with these guys. They're dealing with – 

BERMAN: Jeffrey – 

GERTNER: – the bottom. And there are couple that are dealing with too. 

TOOBIN: But they do have one important weapon. And Judge Gertner knows this is something federal prosecutors use all the time, which is cooperation. Which is people pleading guilty for lesser sentences and cooperating against higher ups. The more serious cases have not yet come before the courts yet. And if those senior people involved in invading the Capitol start to cooperate against the people who organize this, if there were other people who organized it, that's where you could really start to see some serious cases, but we haven't seen them yet. 

BERMAN: Jeffrey Toobin, Judge Gertner – 

GERTNER: Right, these guys have nothing to cooperate with. 

BERMAN: Now yet. Judge – 

TOOBIN: That can be. 

BERMAN: – I appreciate you being with us, Jeffrey, thank you, sir.