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Anderson Cooper 360 Degrees

Trump Legal Team Responds To Revealing DOJ Filing; New Court Filing" Trump Wants Copies Of Documents Seized At Mar-a-Lago And Unredacted Affidavit; Nevada Election Deniers Overhaul Ballot Counting Ahead Of November Vote; Sarah Palin Loses Special Election For Alaska House Seat. Aired 8-9p ET

Aired August 31, 2022 - 20:00   ET


POPPY HARLOW, CNN HOST: All right, Breaking News. We have just obtained the Trump legal team's response to the Justice Department's filing. It is 19 pages.

AC 360 With John Berman will bring you that right now.


JOHN BERMAN, CNN HOST: All right, as you just heard, the former President's legal team has just had its say after the Justice Department says a mouthful about classified documents at Mar-a-Lago.

John Berman here, in for Anderson.

Seconds ago, lawyers for the former President took the next step in their efforts to force an independent review of materials taken from his Florida mansion.

Their Court filing, which we just got our hands on a second ago, caps a day of reaction to a Justice Department filing and the picture, this one, an Attachment F, it shows highly classified documents that the FBI says it found despite written assurance two months prior according to DOJ that none remain there.

CNN has learned that Trump attorney and former OAN anchor, Christina Bobb was at least one of the people giving those assurances even signing a letter saying so. The DOJ filing goes on to say the documents were, "Likely concealed and removed from a storage room at Mar-a-Lago" as part of an effort to "obstruct" the FBI investigation.

It says that some recovered items were so highly classified that even some FBI counterintelligence personnel and others needed additional security clearances to review them.

So, that's with the DOJ filing.

Now again, just seconds ago, we got the Trump team's reply. CNN's Sara Murray and Josh Campbell join us now with a look at what's in it.

Sara, you're just getting your hands on it. What can you tell us?

SARA MURRAY, CNN POLITICAL CORRESPONDENT: That's right. So, we are just starting to look through this, but essentially what the Trump team is focused on is this argument about this Special Master and whether there should be another outside party, who is reviewing the documents that the FBI sees when they searched Mar-a-Lago in August, and it is very clear in this filing that the Trump team is trying to cast themselves as looking for more transparency, more oversight particularly when it comes to the Justice Department.

They are saying in this filing that the Justice Department is suggesting that they and they alone should be entrusted with evaluating what they call the unjustified pursuit of criminalizing a former President's possession of personal and presidential records in a secure setting.

They're also saying that the former President had a reasonable expectation of privacy in his own home and that is one of the reasons they are contesting the search on the premises.

Of course, the Justice Department in their filing that we received yesterday argued these documents that the former President had at his home in Mar-a-Lago, they weren't his documents to have there in the first place.

So like I said, we're still digging through this filing, but it is very clear that this is, you know, a Trump team and Trump lawyers who are still pushing for more oversight of the Justice Department when it comes to this.

BERMAN: All right, Josh Campbell here with this as well.

Josh, I know you've just gotten your first look at it. What do you see?

JOSH CAMPBELL, CNN SECURITY CORRESPONDENT: Yeah, I mean, as expected, the President is taking exception to this FBI search at his property, and just to remind our viewers, this was approved by an independent Judge outside the executive branch, but the President and his lawyers describing that search as "rummaging through Mar-a-Lago." It obviously is focused on this issue of presidential privilege. And again, we're still looking through the document.

But one of the key items seems to be the former President taking exception to the Justice Department going after using the so-called Espionage Act to investigate the former President and he himself, claiming this executive privilege that would have allowed him to have information that the FBI could not actually look at.

And so we expected this to come up, I think one thing we have to remind people about is that this is a response to the DOJ's filing, this whole issue centers around whether an independent party, the so- called Special Master, an outside entity should be able to essentially look at the FBI's records before they were actually used in any type of prosecution.

And so it will be up to a Federal Judge whether she is actually convinced to make that ultimate decision, but the former President here taking issue with this FBI search, saying that, obviously executive privilege is something that he thinks is paramount here, and also saying, you know, that basically criticizing the FBI itself and the Department of Justice, unilaterally determining what should be considered in this prosecution, potentially, and what should not, the so-called filter team.

And so again, this is not unexpected. We'll have to wait and see whether this actually convinces this Federal Judge.

BERMAN: All right, Josh, standby for a second. We have a lot of eyeballs going through this right now.

Let's get to our chief White House correspondent, Kaitlan Collins who is looking as well. Kaitlan, what do you see?

KAITLAN COLLINS, CNN CHIEF WHITE HOUSE CORRESPONDENT: I will just say, you know, we're just starting to read through this, John. Obviously, it's about 19 pages that we've now gotten from the Trump team here in this filing.

They waited -- the deadline was eight o'clock and of course it was right about eight o'clock when they filed this. I will say, right off the bat, they are still asserting that they want a Special Master, that is that third-party attorney someone typically maybe a retired Judge that is going to be the situation at hand tomorrow when Trump's legal team is in Court, including that new attorney that they've just added, the one who is the former Solicitor General of Florida, someone that they've been seeking to have Florida experience on their case, given so much of this, of course, is happening in Florida, where his home is and where this search happened.


COLLINS: They still want that Special Master. And basically the argument that the Justice Department was making in its filing last night was that one was not necessary, because they said that the Trump team waited two weeks to actually formally ask for one, and so they had already gone through all of the materials that they took from Mar- a-Lago and they set aside what they believed could potentially fall under attorney-client privilege.

Trump's team is arguing that they still want one. They are saying that one is not unnecessary, because the review is complete, and basically pushing back on the DOJ's assertion that the Trump team does not have a right in this situation to have a special Master because they've already gone through those documents.

So making very clear, they are still seeking that. They still hope to get that tomorrow. Of course, whether or not they do remains to be seen, because that Judge indicated on Saturday that she was considering it, but made clear that was not her final decision.

We will have to see what she says tomorrow -- John.

BERMAN: She said she was inclined to grant the Special Master, but that hearing is at one o'clock tomorrow. Sara Murray, if you're still with us, I want to read you something

that's on page two of this filing: "Moving does not at this time address every misleading or incomplete statement of purported fact made by the government in its response at Page three to 14. However, movement will simply highlight that one specific event, the June 3, 2022 meeting has been significantly mischaracterized in the government's response."

If the government provided the same untrue account in the affidavit in support of the search warrant, then they misled the Magistrate Judge. Tell us more about what meeting they're talking about and why that's important.

MURRAY: Right. You know, this is interesting, because when we got the Justice Department filing, it was obviously a clear narrative of events. And one of the things that they talked about was this June 3rd meeting where they were invited to Mar-a-Lago to pick up documents that were responsive to a subpoena.

And in this meeting, the Trump team hands over essentially an accordion folder of documents, this is according to the Justice Department's recitation of what happened.

They say, you know, all of the documents that had classified markings were in this storage room, this is what they found. They did this diligent search of the property and then a Trump representative, Christina Bobb, CNN is told, signs this attestation saying we've done this search, we're handing over all of the documents that would be responsive to the subpoena. So, all of the documents with classified markings.

They also said, the Justice Department, that they were not allowed to go into the storage room where the classified material was supposedly being held at Mar-a-Lago and searched through other boxes to see if any other documents with classified markings had been left behind.

So what the Trump team is saying in this filing is, you know, look, we are not going to go point by point and try to refute every fact, but we do take serious issue with what happened in that June 3rd meeting.

They don't explain what factual issues, they think this presented, but they are saying, look, if this is the basis for the search warrant. This is a problem.

BERMAN: DOJ said it tried to get into the boxes, they were not allowed to look at the boxes. The Trump team in this filing saying it did not happen that way. Although, they are not saying exactly how it happened.

All right, Sara, keep reading.

I want to go back to Josh Campbell right now, to talk about the photo that was an appendix to the DOJ filing, and now, we understand that Donald Trump is taking some issue with this. What have you learned?

CAMPBELL: Yes, and again, this was not unexpected. Obviously, this very visual depiction here of these classified documents that were allegedly found there. You see them on your screen. This was an FBI evidence photo that was taken that was then released yesterday, as part of the Justice Department's filing.

The former President, his attorneys really blasting the release of that photo, calling it a gratuitous release of allegedly classified information. Trump goes on to say that those documents were pulled from a container and spread across the floor for dramatic effect.

One thing I have to tell you, I mean, as a former FBI agent, it really raised the question of who the President's audience is here. This is a Federal Judge who will ultimately make this decision, a Federal Judge is someone who reviews this type of material on a daily basis, looks at affidavits, looks at the pictures like you're seeing there on the screen, evidence photos taken by FBI analysts, and so they know that this is standard operating procedure.

You can even see the ruler down there at the bottom of that photo. This is what evidence photos actually look like. However, what the President is claiming is that this was in effect, overreach by the government to release in his words, this gratuitous picture showing documents thrown about.

I think it's also important to note that this sort of turns on its head, this claim that we've seen or we've heard from the President's orbit that perhaps the FBI had planted evidence here in this document that was filed in Court, Trump says that the documents were "pulled from a container and spread across the floor for dramatic effect."


CAMPBELL: So, it's hard to square those two things: How can the FBI bring evidence and plant it, while at the same time pulling it out of one of Donald Trump's containers and then spreading it across the floor?

BERMAN: Yes, by saying that they were taken from the container, that's different than what some people had been saying that they were planted. This is the type of thing that some people have pointed out that Donald Trump in his postings may be talking himself, they say, into more trouble as this continues.

All right, we're going to let everyone keep on reading here. They will bring us more details as they find them.

In the meantime, I want to bring in CNN senior law enforcement analyst and former FBI Deputy Director, Andrew McCabe. Also Shan Wu, he is a defense attorney and former federal prosecutor.

And Shan, you've been sitting next to me reading as I've been talking here, what jumps out to you?

SHAN WU, FORMER FEDERAL PROSECUTOR: It jumps out to me that it's pretty light on the legal citation and legal analysis, and I think they were really overwhelmed by the strength of the Justice Department's filing, haven't really been able to respond to that. They are reiterating a couple points. They see the danger in the

Justice Department's argument that Trump has no standing to ask for the Special Master, so they're trying to lean back into that saying that, of course, he has a privacy interest in his residence and they have to kind of gloss over the fact that he may not have any property rights in the materials.

BERMAN: Based on what you can tell. Is this more about the Special Master argument or is this more about responding to the other new factual details that DOJ laid out yesterday?

WU: This is a reiteration, leaning into the Special Master argument and there is a very broad point towards the end. They contest what responsibilities the Special Master should have. They want the Special Master to have very broad power here because they really want him to oversee the criminal investigation.

BERMAN: All right, Andy McCabe, we want to bring you into this now. I'm going to read another portion of this: "The purported justification for the initiation of this criminal probe was the alleged discovery of sensitive information contained within the 15 boxes of presidential records." Those were the presidential records turnover January.

"But this discovery was to be fully anticipated, given the very nature of presidential records. Simply put, the notion that presidential records will contain sensitive information should have never been cause for alarm." What do you make of that?

ANDREW MCCABE, CNN SENIOR LAW ENFORCEMENT ANALYST: John, it's all over the map. It's all over the place here. That one quote that you just read, I mean, I really stumbled, I read it two or three times the first time through it, because I couldn't believe what they're saying.

They are basically conceding that yes, of course, we had a lot of super-sensitive -- they don't say classified specifically, but we had sensitive information here. It is his presidential records, and they're in his house. And of course, there would be sensitive stuff in there as well.

Well, they are glossing over the point that it is actually not his records. He doesn't have a property interest in presidential records. He admits their presidential records is also not good for him, but ignores the Presidential Records Act, which says quite clearly that all presidential records are to be in the custody of the National Archives.

So, it is almost kind of hard to read. It's a bit hysterical. It's very kind of emotionally drafted and it kind of jumps all over the place. I do think that they're kind of trying to attack the validity of the search warrant in a sort of roundabout way, knowing I'm sure as they do that attacking the search warrant is not something that you would do in front of a different Federal Judge, in front of a Courthouse, there is a time that a target of investigation, once they're charged, they have the opportunity to attack the search warrant. They're kind of trying to do that here in a roundabout way that

doesn't seem particularly effective to me, but that seems what they're doing.

BERMAN: And again, a reminder, the hearing for which this filing is intended tomorrow is about the Special Master. It's not about the search warrant exactly, per se.

All right, Andy, standby for a second, I want to go back to Kaitlan Collins, who has been reading more. What are you seeing now, Kaitlan?

COLLINS: Yes, John, there's a notable part in your word they're talking about, basically, they are contesting the idea that the Justice Department is acting fairly here, and what they're pointing to really basically going back to is the search of Trump's home, saying that the Justice Department is arguing that they are moving in a fair minded ethical way and they're saying that the search warrant executed at his home in the midst of a standard give and take between former President and NARA. That's the National Archives regarding presidential library contents and with the movement -- I'm quoting from this "literally allowing DOJ lawyers and FBI investigators to come to his home and provide security advice."

That is one spin on the June 3rd meeting, because of course -- we know that we now know that those investigators went there. They wanted to get the rest of these documents.

As they said in their filing last night, when the counsel showed them the room where these documents were being kept, that storage room, they said Trump's counsel explicitly prohibited them from being able to look in the box.


COLLINS: To open them, to see if there was anything still marked classified in those documents. That's also when a Trump attorney signed that letter saying that there was no more classified information to the best of her knowledge still at Mar-a-Lago.

Obviously, the search in August proved that that was not the case, that there was still a lot of classified information there, but the way that they're framing this saying, essentially, that this search happened is there was this cooperation, this relationship happening between the two.

It differs from what the Justice Department is saying, when they are saying we had a subpoena. We asked for this stuff repeatedly. They declined to turn it over. They said there was no more classified information there. We went there with this search warrant with probable cause that there was more classified information there and found that there was.

BERMAN: Yes, again, they had a Court-approved subpoena and a Court- approved search warrant also where the Judge agreed that they had probable cause to go looking for these documents.

All right, Kaitlan, standby. Josh Campbell, now, back with you.

The Trump team is arguing that they should be able to re-access, get back some of the documents that were seized, what do you see?

CAMPBELL: Yes, this is exactly in line with what Shan was just describing that this appears to be a very broad request that the Trump team is making and it is notable here because in this filing in the Court, what basically the Trump team is asking is that this Special Master, this independent party, if he or she is actually assigned to this case, the Trump team wants that person as well as Trump's own lawyers to get a copy of the seized materials, to essentially regain access to information which could include highly sensitive top-secret information.

Of course, as a former President, there is no longer a need to know and certainly under the Presidential Records Act, the President wouldn't maintain that type of information. So, that is notable.

But interestingly, the Trump team is also asking for an unredacted copy of that search warrant affidavit. We know that the Justice Department had released a redacted copy, which we were able to see which itself was still a chock-full of incredibly, you know, interesting details. But the problem there, every investigator knows is that these types of affidavits include information about witnesses, people who are helping the government, of which there are many, according to the Justice Department.

So you can imagine a world where if this were to be approved, this request, you're now going to turn over to the Trump team, the name of confidential witnesses who are helping the Federal investigators with their case.

I don't see that happening, but again, you have to understand that this is -- the audience for this is a Federal Judge, and certainly that person would understand how sensitive this information is, particularly in an investigation that is very much still ongoing -- John.

BERMAN: All right, Shan Wu for some legal analysis to you here, how unusual would it be to turn over to the target of an investigation the affidavit? I mean, this is -- in the one of the previous filings, it is exactly what the Judge Magistrate and the DOJ said they were worried about, giving a roadmap to the possible defense.

And on the point of giving back some documents that the Special Master deems a privilege, this gets into a legal twilight zone here. If for instance, someone does deem that there should be a Special Master for executive privilege, those documents were not owned, in theory by Donald J. Trump, they're owned by the US government. So, wouldn't that be where they'd go back to?

WU: Twilight Zone is exactly the right analogy here, because what if there's a disagreement between the Special Master and what the FBI privilege team is looking at? Who's going to decide that? And so that becomes a subject of like a side litigation. That's the whole problem with the request here is it creates the

opportunity for the Judge to meddle in the investigation. The law here is completely convoluted. I'm not just looking at one section, John, where they're trying to talk about the attack on the search warrant itself, which they say, oh, we're not really attacking that here. But yet, they are.

That analysis is so convoluted that you would flunk first year law school if you tried to talk about that. They're trying to say that because a property owner has a right to privacy in their residence, that they can object now, and they're saying, oh, but so what? There was a search warrant for illegal proceeds, meaning documents.

They are saying, if that's the case, then anytime a property owner has illegal proceeds, somebody can search a home. That's exactly right. That's why you have a Judge to determine if there is probable cause to search the home. It is just terrible analysis.

BERMAN: Alright, everyone, standby. We're going to take a break here, and we are going to continue to put on our reading glasses and go through this filing.

Our panel stays with us and we'll be joined by two former Justice Department officials.

And later, finding out what happens when 2020 election denier becomes a 2022 election official. With more election deniers on the ballot, the story tonight is one in Nevada County, which is what a critic there is calling a five-alarm fire for everyone who cares about democracy.



BERMAN: All right, we're talking tonight about the Court filing just moments ago by the former President's legal team that answers a broadside from the Justice Department over the search at Mar-a-Lago, and it sets the stage for a high-stakes Court hearing on the subject tomorrow.

Our team, we've all been going through the filing. We're back with everyone now starting with Sara Murray, who has just seen something on page 17 here, Sara, what do you think is important?

MURRAY: Well, you look the Trump team is kind of laying out the stakes in their closing of this document and how they believe the Justice Department has over reached. You know, they say that a search warrant has been executed at the home of a President, it was conducted in the midst of the standard give-and-take between former Presidents and the Archives regarding presidential library contents and with the movement being the Trump team, literally allowing DOJ lawyers and FBI investigators to come into his home and provide security advice.

It goes on to say the government gratuitously included that photo in their filing and says the government pretends these are not historical important moments.


MURRAY: So, this is how the Trump team is sort of trying to set the stakes as we go into this hearing tomorrow. Of course, it is important to remember that the government got this search warrant, it was authorized by a Judge, and then there was a whole lot of give and take, it appears between the Trump team and the Justice Department, it was not necessarily as cooperative as the Trump folks are trying to lay out as far as the Justice Department is concerned.

BERMAN: All right, let's bring in Andrew McCabe into this discussion, former Deputy Director of the FBI and again, what Sara is pointing out there is in the conclusion of this filing from the Trump team, what do you make of that allegation?

MCCABE: Yes, John, I mean, I think Josh Campbell hit the nail on the head earlier. The question, as you read more and more of this is who is the audience here? A lot of this filing reads more about fanning the flames of look how horrible the FBI is, look what offense they committed by searching a former President's residence and recasting the narrative that DOJ very clearly laid out in their previous filing about that give and take that led to the search warrant.

So, I don't think those arguments are going to have much impact on the Judge, but they have proven to be very effective in activating the President's base, generating additional fundraising opportunities, and really kind of turning up the volume on the outrage factor.

I would expect that President Trump likes that part of the brief the best. I'm just not certain that it is going to have a lot of legal way.

BERMAN: And again, because what the Judge is deciding tomorrow is whether or not there should be a Special Master to decide matters of attorney-client privilege, and also possibly executive privilege.

Andy, standby. I want to bring back Kaitlan Collins here, and I want to read more of the filing this time, from page three: "Rather as contemplated under the PRA," which I should point out as the Presidential Records Act, "NARA," which is the National Archives, "should have simply followed up with movement in a good faith effort to secure the recovery of the presidential records."

Good faith effort? Didn't they do that? Didn't this go on for a year and a half?

COLLINS: It went on for an incredibly long time, so much to the fact that it went from the National Archives repeatedly asking Trump and his team to turn this information back over that then when they realized there was classified material there, they referred this to the Justice Department, then we entered the subpoena territory and that is where you saw these letters coming from the Justice Department to Trump's legal team.

They had subpoenas. They had these Court-approved documents, trying to get access to these materials. This isn't just because they were asking nicely and not getting what they wanted.

That line stuck out to me as well, John, because the way that the Trump team has been framing this is that they were having this cooperative relationship. They were all operating in good faith, and they were caught off guard by the search warrant executed at Trump's home.

That is not what the Justice Department is saying. They are saying that there were subpoenas here, that they were not getting all the classified information, even though there were Trump attorneys signing documents, saying that there was no more classified information left at Mar-a-Lago. They are saying they were still not getting all the classified information that was left at Mar-a-Lago.

And so that stuck out to me as well, because they're arguing basically that what the Justice Department said last night, is that based on what was obtained by the Justice Department, by these FBI agents in that search warrant that was executed on his property was to show that the statement that a Trump attorney signed was far from the truth, at best, and that they were concerned and that was where they were kind of going down the road of potentially there was obstruction here, and they were trying to get in the way of the Justice Department's investigation here.

I will note that the Trump team is still asking for a Special Master. What they're suggesting if they do get one, John, in addition to what Josh was saying, which is that they want a copy of the affidavit, which I should remind people is the document behind what justified this search warrant, that could have witnesses names on here, and the Justice Department has said they want to keep that sealed because they do not want that part being public.

They don't want the names of the witnesses in their investigation, becoming public and potentially allowing Trump to interfere in it. They made that clear in their filings.

They said they would propose a list of candidates to be Special Master by September 7th, that's next Wednesday, and they would set deadlines for their reviews if they do. That goes back to this argument that the Trump team just wants this Special Master, this third party attorney to look over what was taken from Mar-a-Lago to potentially slow this case down.

BERMAN: You know, Shan Wu, on the subject of a Special Master. They're not unheard of in issues dealing with attorney-client privilege here and the Justice Department had said that their own taint team, as it were has identified some areas, some documents which should be turned over.

Is there a case independent of all the rhetoric back and forth, does the Trump team make any cogent case here that a Special Master could be useful?

WU: No. There are some arguments, I don't want to give them suggestions, but they could lean more into just the exceptional nature of this. They recognize that Special Masters are usually used only in the attorney-client privilege review point.

They are still trying to push the boundary here to get the Special Master to have jurisdiction over executive privilege even though that has been shot down repeatedly.


They reference the archivist procedures here that they give some deference to a former president. They even say that executive privilege really benefits the United States. And somehow they want to bootstrap that into Trump having power over when to a sort of theory, even though he's no longer in office.

This is part of their expansion theory. They really want to expand as much as possible, the role of the Special Master, because whether that Special Master does a good job or not, it's still going to slow things down like Kaitlan was saying.

BERMAN: All right, everyone, again, standby. Keep on reading. Andrew McCabe, Shan Wu, Kaitlan Collins, Sara Murray, Josh Campbell. We've got to take another break. We're going to be right back.


BERMAN: Back with our panel talking about tonight's filing from the former president's legal team. And for Andrew McCabe, I want to read a portion from page seven now referring to the government's claim that the court should not have a Special Master because it interferes with the document review process. This is the quote, the government appears to argue simultaneously this Special Master is unnecessary because the review is complete. And that a Special Master is inappropriate because such an appointment would interfere with the review process. Given that the government has completed its review. The urgent interest it asserts here should not preclude the court from exercising its equitable jurisdiction.

Andrew McCabe, your answer to that.

MCCABE: Well, they're conflating of the review of the search materials, which apparently has already been conducted with the intelligence community's Damage Assessment Review. So the DOJ was very clear about the fact that any delay would could cause significant harm in slowing down the intelligence community's ability to figure out how much damage has been done to sources and methods as a result of this improper storage.

But that is just very emblematic of the way that they're trying to attack this thing with kind of the, you know, death by thousand cuts. There's a long section John from page nine to 13 in which they really go after the government's filter team right that process that was laid out in the search warrant affidavit in which they say all the material taken from the 45 office would be reviewed at before attorney client privilege. They've apparently done that they came up with some materials, and they're now looking to the court for guidance.

[20:35:19] So, they're trying to pose this as Oh, the DOJ is afraid of a Special Master because they don't want oversight of what they've taken from Mar-a-Lago, which is of course, not really, not really how, how this works. But it's also, you know, there's all kinds of claims about, you know, no effort was made by the magistrate judge or the government to communicate with movement after the execution of the search warrant. So they're complaining that, oh, you found privileged materials, and you didn't tell us about it.

It's important to remember, none of that is required of the government. The government has a search warrant, they go into that location, they take materials that are consistent with the four corners of the warrant, they find privilege materials, they go to the court for guidance, they don't go back to this case, the Trump team, this is not a civil case. This is not a negotiation, it is a criminal investigation.

BERMAN: All right. Kaitlin Collins, I want to go back to you now, again, with more from page three of this. And here's the quote, rather as contemplated under the PRA, which again, is a Presidential Records Act now, which is the National Archives, should have simply followed up with movement. We've already done this, in a good faith effort to secure the recovery of the presidential records. Again, we established that that is something that that the FBI and the DOJ says that they did.

Let me ask you something separate, Kaitlan, as you've gone through these pages now, as have I, there's something which isn't here. What isn't here in this filing?

COLLINS: An argument about the declassification of these documents, which of course is what the former president's team and his allies on cable news had been arguing that he declassified all the documents he took with them. But that photo that he is complaining about that was included in the Justice Department's filing last night, you know, it was a notable photo just because it sought to really showcase in an image, what was taken from Mar-a-Lago, what was kept at Mar-a-Lago, despite these efforts to get it back. But also, none of the documents in the photo say that were declassified on the front of them, they were declassified from what I can see is also not appearing in this filing that we're getting from Trump's team tonight. Maybe they'll use it tomorrow in court when they're talking about trying to get this Special Master. We don't see it so far.

And John, going back to the efforts that they're describing here are saying that, and one part of this they say, the enforcement -- basically they're describing the enforcement of a grand jury subpoena by the Justice Department, as Trump allowing investigators to come to his home and provide security advice. That was after that June 3 meeting where Jay Bratt who is the top Justice Department official, leading this investigation and other investigators went to Mar-a-Lago. They met with Trump's attorneys, they went to the storage room where boxes of documents were being held. They according to the Justice Department were not allowed to look inside these boxes. They said they were explicitly prohibited from doing so. But they also followed up to asking Trump's attorneys in a letter to further secure the room, they did not explicitly say put a padlock on the door. But they said until you hear from us again, until further notice basically further secure the room because they were worried about who could get access to that room. Trump's team took that as a directive to put a padlock on the door, you know, providing coming to his home and providing security advice, which is how Trump's team is describing that June 3rd meeting is not the same as them following up on a grand jury subpoena that had been issued to Trump's team back in May, where they were asking the return of any documents bearing classification markings. You just see how distorted the two events are here are of the simple meeting where a grand jury subpoena had actually been issued to go and get these documents and how the Trump's team is framing it in his filing.

BERMAN: So Josh Campbell, as Kaitlan just brought up one of her points, there doesn't appear to be any reference to declassification of the documents, which is a claim that the Trump team has made in public on TV, not in any legal filing. And by the way, the Department of Justice for his part hasn't required classification. Its three things that they found probable cause to investigate. But you also notice something else that's not in this document. What?

CAMPBELL: That's right, the bluster. I mean, we're not seeing what we're seeing on the former president social media, where he's blasting the FBI. He's talking about them busting down his doors and cracking opened his safe, calling them crooks, calling them criminals saying they violated their oath. You don't see any of that in there. And obviously we all know why. The audience here is a U.S. federal judge. That type of bluster would not fit in a courtroom that would not fly in a courtroom. But that is interesting to note. It appears to be two different lines here.

Obviously the former president is a very proficient public relations practitioner, but this is appears to be more measured. We do see him taking exception to this ongoing intelligence community review which we been reporting on. They're going back and looking at those classified records in order to try to determine what damage might have been caused to U.S. National Security if they got in the hands of someone who did not have a need to know. The former president saying, he reserves the right to object to that ongoing review. Of course, it's important to note that as a former president, he no longer has the power to oversee classified information that rests with the current president.


But if I could just point out one other thing, I mean, we've been talking tactically about what we're seeing in this document. One key overarching strategy that we're seeing John is the former President is trying to convince this judge that it's essentially a normalization of his actions here to keep classified information a former president in his residence. And in fact, in this document, and this is pretty stunning. We'll see how if this flies with the judge, but he talks about this on these ongoing discussions with the National Archives, for example, as a standard give and take, basically saying it is not surprising that a former president would have sensitive information yet he criticizes the archives saying they rushed to open a criminal investigation. It's worth noting, they don't open criminal investigations. They referred it to the FBI who actually opened in the investigation.

But what he's saying in this quote, the notion that presidential records would contain sensitive information should have never been cause for alarm. So he's basically saying, look, this is to be expected. Of course, if you go back and look at a history, whether it's a Republican president or a Democrat president, we've actually never seen a former president maintain top secret information like this.

BERMAN: No, nothing quite like this. Josh Campbell, Andrew McCabe, Shan Wu Kaitlan Collins, Sara Murray. Thank you all quite a night.

Next, two former senior Justice Department officials and two administrations Democratic and Republican what they make of what we've all been seeing in real time, when "360" continues.


BERMAN: Right we have been discovering piece by piece what is in the former president's latest court filing as his legal team seeks a court ordered independent review of documents taken in the search of Mar-a- Lago. What we haven't found in it at least not in early reading is the Trump team addressing the Justice Department's points about evidence of obstruction of justice?

Joining us to former Deputy Assistant Attorney General John Yoo who served during the George W. Bush administration and currently teaches at UC Berkeley, and Harry Litman who served during the Clinton administration.

And Harry just first to you how unusual is it or odd is it that the Trump team doesn't address the issue of obstruction here?


HARRY LITMAN, FMR DEPUTY ASST. ATTORNEY GENERAL: Everything about the filing is odd it is flailing and deeply, deeply modeled. The cases what few cases that advances have really nothing to do with the situation. The Special Master arguments are all about attorney-client privilege, but they try pretty clumsily to alive them into an executive privilege situation. They are -- they have a fair number of misrepresentations. But to Josh's point, less bluster, this happens in general in Trump land. When you get to court and you lie, you can be subject to sanctions. So that I think explains us the slightly muted quality.

There's nothing new compared to what they said before, but it's just repackaged in pretty confusing fashion.

BERMAN: John, I want to give you a chance to respond to what Harry just said. JOHN YOO, FMR DEPUTY ASST. ATTORNEY GENERAL: I think that the standard for granting a special motion is just exceptional circumstances. And the back and forth between the government here involving the first ever non-consensual surprise search warrant search of a former president, the allegation that a former president for the first time might have concealed evidence of a crime and may even have committed a crime at their help. That seems to me to meet the standard for special circumstances that justify the grant of a Special Master.

The documents we have before us, I can't quite agree with Harry, the President Trump's response is confused, it's strange, it doesn't really get right to the point. I have the feeling what they're trying to do is really kick the can down the road. By getting a Special Master, you're delaying a lot of the consideration of what was found. The other thing that's really missing here, you're going through what's missing, the thing that's missing is any response to the photographs, and to the allegation that 100 sets of classified documents are found, which is really a startling claim by the government that you would have thought Trump would have responded to it here.

BERMAN: You know, it really isn't a direct response to so much of the information that was part of the DOJ filing, it has its argument on a Special Master. And to that point, John, let me just read you one more part of this in its haste to avoid judicial oversight. The government has not only completed the filter, team review and classification of attorney-client progress materials, but the investigative team has accepted those delineations and fully reviewed the remaining documents.

Do you think that is something the judge might accept?

YOO: Yes, because I think maybe I misreading it. But what I think is going on is that they're just saying, please judge appointed Special Master these issues are so complicated. Attorney-client privilege is mentioned, the executive privilege issues are actually complicated, and first of their kind. And also, this suggestion over and over again, that the original search warrant was too broad. It was too aggressive. There could have been a negotiation and accommodation that could have worked out. Those are all just -- this judges so complicated, put somebody who's got experienced a retired judge, someone maybe former National Security officer who has clearance to see these documents. Kick the can down the road.

That'll give the Trump team time, I think because I think this talk to me shows they didn't have time to really confront and grapple with what the government has performed. (INAUDIBLE) very stunning, very stunning filing with all of those documents and the photograph. It's quite an indictment.

BERMAN: I don't want to put words in your mouth, John, but it sounds like what you're saying is that the Trump team has a case for a Special Master, although in this filing, they don't necessarily make it in a particularly cogent, coherent fashion fair.

YOO: Oh, yes, I think that's fair. I think this motion is I think I think the Trump team might win despite itself.

BERMAN: All right, Harry, let me read you --

YOO: On the Special Master issue.

BERMAN: Let me read you another part.


BERMAN: OK. Go ahead, Harry, go respond that, then I'll read you more.

LITMAN: Well, I did look. So 100% essential point on the Special Master. And it's all their cases, it's only for attorney-client privilege. On executive privilege, he's blown out of the water by the DOJ submission that he has no interest in this at all. What he says he actually there's a concession in there that says, I know that's mainly it should be in the archives. But there is a procedure that at least allows for former presidents to look at it precisely that procedure is they are in the archives where they belong. You bring in people with security clearances to look at them, not a word in here and not a smidgen in the law, to suggest that the Special Master should somehow be taking on the executive privilege claim.

BERMAN: Controls are --

LITMAN: I'm sorry, go ahead.

BERMAN: -- control, we have time for one more citation here.


BERMAN: All right. I'm going to read this very quickly, at this stage movement has standing to seek the appointment of a Special Master and in due time, will establish standing because he can test the unconstitutional search, end quote here. Harry, I'll give you the last word. Is that get to what John was just suggesting there that there were sort of saying is it down the road? We're going to get some more here.

LITMAN: Well, he said -- so John was saying two things I think one was about the Fourth Amendment rights that he can challenge if and when he's charged, he can't do it now. The other stuff is the Special Master stuff. So that's what down the road should mean all his cases. Look at them, they're U.S. versus Berman, U.S. versus you. That's for criminal defendants who have been charged not Donald Trump.


BERMAN: Not U.S. versus Berman yet, as far as I know. Harry Litman, John Yoo --

LITMAN: It's all I can think of.

BERMAN: -- thank you both gentlemen, for helping us go through this today.

LITMAN: Thanks, John.

BERMAN: Up next, we have to take you to Nevada where a 2020 election denier is now running the 2022 election in one county and then election conspiracist as the Republican nominee for secretary of state. A critic calls it a five alarm fire.


BERMAN: We just had quite a moment legally and politically as the former president's legal team presents its side and sets the stage for tomorrow's court hearing on the search of Mar-a-Lago. It is unfolding with just 10 weeks until the midterms and 2020 election deniers are looking to take control and key battleground states including Arizona and Michigan. A number of candidates that embrace the former president's false election fraud claims are now one step closer to holding powerful offices. Offices where they will oversee their state's elections. And it's already causing chaos in the crucial swing state of Nevada, where two counties have appointed election deniers to oversee their elections this fall.

CNN senior national correspondent Kyung Lah went to Nevada to see how they're already changing how the 2022 midterm ballots will be counted.


KYUNG LAH, CNN SENIOR NATIONAL CORRESPONDENT (voice-over): In the thinly populated desert a few hours outside of Las Vegas, Nevada sits Nye County where 2020 election lies are now a tenant of their faith.

(on-camera): When Donald Trump says that he believes he won the 2020 election. What do you think?

UNIDENTIFIED MALE: I'm with him, I'm with him. Definitely.

LAH (voice-over): These voters ushered in Mark Kampf, the brand new Nye County clerk.

MARK KAMPF, NYE COUNTY CLERK: That's right. I'm the doer when it comes to that.

LAH (voice-over): He is overhauling how ballots are counted in Nevada's midterm in charge of the county's November election. But in the debate earlier this year, he said this.

KAMPF: I believe that Donald Trump won the 2020 election.

LAH (on-camera): Do you still believe that?

KAMPF: What I believe as clerk has nothing to do with what I believe as candidate. You're interviewing the Nye County clerk right now. And as a Nye County clerk, I'm responsible for total impartiality.

LAH (on-camera): But if you don't believe the system was legitimate in 2020, and created an error where 30,000 plus votes were not counted in the state correctly. Isn't that problematic?

KAMPF: I don't see as being problematic at all, because I'm trying to increase voter confidence in the election.

LAH (voice-over): The system complements us in November paper ballot followed by a hand count. Why? Distrust of machines driven by 2020 conspiratorial lies about Dominion.


(on-camera): In the election space, the machines they count, go through multiple layers of security they are not connected to the internet. And this is regulated throughout the country.

KAMPF: That's a perspective. There are a lot of people again, the voters in this county don't believe that. And whether it's true or not, their perception is their reality.

LAH (voice-over): Kampf says he will still use Dominion machines in a parallel count and compare the results.

ATHAR HASEEBULLAH, EXECUTIVE DIRECTOR, ACLU OF NEVADA: What would seem like a crazy internet plan seems to be coming into reality and it should be a five alarm fire for everyone who cares about democracy.

LAH (voice-over): The ACLU of Nevada says election conspiracy theorists are already running voting in this critical swing states.

HASEEBULLAH: While, in rural counties here in Nevada, what we're starting to see is an attempt by fringe elements to really take control of those communities by interfering with democracy.

LAH (on-camera): What's problematic about hand counting?

HASEEBULLAH: They all that's going to do is give them the opportunity to tamper with an election. This is a coordinated machine that's in place.



LAH (voice-over): Marchant is the Republican nominee for Secretary of State. For months, he's been going from rule county to county.

MARCHANT: We are here to recommend that you vote today to dispose of your electronic voting and tabulation machines.

LAH (on-camera): Hi, Mr. Marchant.

(voice-over): We caught up with him at one of his many training events where attendees are told various election conspiracies as facts.

(on-camera): Tell me about hand counting and your effort in the rural counties.

MARCHANT: Just trying to implement a fair and transparent election.

LAH (on-camera): What do you think happened in the 2020 election?

MARCHANT: I don't know. And that's the problem.

LAH (on-camera): What do you say when election officials across the country say that none of this is true?

MARCHANT: I don't believe them. We just different opinions are different are and yes. And what we believe.

LAH (on-camera): Dozens upon dozens of election officials are wrong, you're saying?


LAH (voice-over): Marchant Northern Nevada GOP would let us in to listen to his presentation.

UNIDENTIFIED MALE: Unfortunately, the event is close to the press.

HASEEBULLAH: This is the most dangerous election for democracy. I would imagine in Nevada, probably in history. The playbook is being drafted as it's moving forward. I would say that 2022 in Nevada should be a good mirror of what's to come and a good foreshadowing example of what's to come across the country as we move forward for the next two or three years.


LAH: And we are looking at rural counties in Nevada. These are conservative, they do have smaller populations, but voting rights activists say they absolutely matter. And here's why. Because if you think about the boat spread in some of these battleground states like Nevada, we're talking about thousands, yes, tens of thousands in some case, but generally thousands And that is where it matters. The margins here are there, thousand here, a few hundred here.

What they are worried about is if this works in Nye County and other rural counties, John, that this could be upscale to the other battleground states. John.

BERMAN: Kyung Lah, terrific report. Thank you very much.

It is a busy night here. Coming up the results from Alaska Special House election just in as former governor and former Republican vice presidential nominee Sarah Palin attempts to make a political comeback.


BERMAN: According to unofficial results released by the Alaska division of elections former Alaska governor Sarah Palin has lost her bid to fill Alaska's House see for the remainder of the year. Democrat Mary Peltola won the special election delaying Palin's plans to make a political comeback. Peltola win flips the seat was held for nearly half a century by late Republican Congressman Don Young and she will become the first Alaska Native in Congress. [21:00:15]

Palin became the Republican vice presidential nominee in 2008, and in 2009, resigned midway through her loan term in the governor's office. She has not run for office since then. Despite today's setback, she'll get another chance to the House race with both Palin and Peltola vying to fill the term in a separate election in November.

A quick reminder before we go, tomorrow night at 8:00 p.m. Eastern, join CNN for special coverage of President Biden's primetime speech as he delivers remarks from Independence National Historic Park on the continued battle, he says, for the soul of the nation,.

The news continues. So let's hand it over to Victor Blackwell in "CNN TONIGHT." Victor.