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At This Hour

DOJ Opposes Releasing Trump Search Warrant Affidavit; Two Of Trump's High-Profile GOP Critics Facing Midterm Primaries. Aired 11- 11:30a ET

Aired August 16, 2022 - 11:00   ET




KATE BOLDUAN, CNN ANCHOR: Hello, everyone. AT THIS HOUR, new moves in the now multiple probes surrounding Donald Trump and his allies.

Liz Cheney fighting for her seat in Congress as the Republican says this isn't about just an election, it is about the truth.

And the first lady tests positive for COVID, just days after President Biden recovered from the virus. This is what we're watching AT THIS HOUR.


BOLDUAN: Thank you for being here. I'm Kate Bolduan. We begin with a string of developments in the investigations surrounding former president Trump.

The Justice Department is opposing efforts by media organizations, including CNN, to unseal the affidavit that was used to obtain FBI warrant to search Donald Trump's Mar-a-lago home.

"The Wall Street Journal" reports the attorney general, Merrick Garland, deliberated for weeks over whether to approve that FBI search. Separately, sources tell CNN that Trump White House lawyer Eric Herschmann has been subpoenaed by a federal grand jury investigating the insurrection.

And in a separate investigation, Georgia prosecutors have told Rudy Giuliani he is a target of a criminal probe into election interference.

And in yet another investigation, longtime Trump Organization CFO Allen Weisselberg is expected to plead guilty in a tax evasion case.

Let's get to it. Let's begin with Katelyn Polantz on the news out of the Justice Department this morning.

So what are you hearing from the Justice Department about this request to unseal the affidavit?

KATELYN POLANTZ, CNN CRIME AND JUSTICE CORRESPONDENT: The Justice Department does not want to unearth a lot more detail about what is going on here in -- that prompted the search of Mar-a-lago and what is under criminal investigation here.

In a court filing yesterday, arguing for secrecy about the details that they told to a judge that prompted this search, they are letting on, a few telling things about what has -- is going on behind the scenes in this criminal investigation and also regarding the search.

I want to read a part of what they wrote to the court.

They said, "Disclosure of the government's affidavit," that is what the media is requesting to be unsealed at this stage, "would also likely chill future cooperation by witnesses, whose assistance may be sought, as this investigation progresses, as well as in other high- profile investigations.

"The fact that this investigation implicates highly classified materials further underscores the need to protect the integrity of the investigation as it is ongoing."

So these arguments for secrecy are that there are witnesses involved with the Justice Department's probe. There is a grand jury that is seated, that is doing this investigation, that there is an investigation into highly classified materials.

And the other thing we just learned a few minutes ago was that there will be a hearing Thursday, that the judge will hold about secrecy in this case.

BOLDUAN: Clearly more to come. Thank you so much. Good to see you.

Donald Trump's attorney, Rudy Giuliani, he's now been informed by prosecutors in Georgia that he's a target of a criminal investigation into efforts to overturn the 2020 election results there.

Giuliani is now under orders by an Atlanta area judge to appear in person in front of a special grand jury this week. CNN's Nick Valencia is live outside the courthouse in Atlanta at this hour.

What does this mean?

NICK VALENCIA, CNN CORRESPONDENT: Good morning, Kate. We know Rudy Giuliani tried to delay this testimony before the special purpose grand jury and filed a continuance, saying he had a recent heart procedure that prohibited him from traveling by air.

But a Fulton County judge said there was other ways for him to get here in order for him to appear before that special grand jury tomorrow. And he'll be doing so as a target of the criminal investigation by Fani Willis, a significant development.

This is the first time that a member of the former Trump -- former president Donald Trump's inner circle has been named as a target of the investigation.

And we know that Rudy Giuliani had appeared before state legislators here three times to spread conspiracy theories and false claims about voter election fraud here, claims that have since proven to be untrue.

It was last night for the first time that Giuliani responded to being a target of this criminal investigation.


RUDY GIULIANI, FORMER TRUMP ATTORNEY: Just a further desecration of the Sixth Amendment. I was his lawyer of record in that case.

The statements that I made are either attorney-client privileged, because they were between me and him, or they were being made on his behalf in order to defend him.

When you start turning around lawyers into defendants, when they're defending their clients, we're starting to live in a fascist state.


VALENCIA: Getting Giuliani to answer questions may prove to be difficult.


VALENCIA: His attorney in New York saying that, while his client will appear before the grand jury, he cannot promise or guarantee how responsive he will be. Kate.

BOLDUAN: Good to see you, Nick. Thank you very much.

Joining me now for more on this is CNN counterterrorism analyst Phil Mudd, a former FBI senior intelligence adviser; CNN political commentator Alyssa Farah Griffin, former Trump White House communications director and co-host of "The View'" and Harry Litman, a former U.S. attorney, former deputy assistant attorney general.

Thanks for being here.

Harry, let me ask you first on Giuliani, he's a target of the Georgia investigation we have learned.

How dangerous does that make him to the former president?

HARRY LITMAN, FORMER DEPUTY ASSISTANT ATTORNEY GENERAL: Extremely, a target basically, she's concluded, she already has what she needs to indict him. He's going to go down there. He's scheduled to be there tomorrow.

By the way, his diatribe about attorney-client privilege doesn't hunt at all. Everything he did was not between him and Trump. He went and three times told complete fibs to the Georgia legislature. That's the basis of the charge.

But he's 78. He's gotten used to the high life. He's got a big ego himself. If he's charged and looking at serious time, I don't see his doing it.

And the question is what can he trade?

Well, we know what he can trade. He's got a lot of information about the former president, who is also, it's quite clear, in the crosshairs of the same DA's investigation.

BOLDUAN: It is an interesting element because a former aide to Giuliani was on this morning and said, at his age, his entire goal is to live out the rest of his remaining days as a free man. So that can be a very big motivating factor to change someone's attitude, as you're noting here. We'll see.

Alyssa, on the new reporting that Eric Herschmann, the White House lawyer, has been subpoenaed by a federal grand jury investigating the events of January 6th, he played -- he has played prominently in the congressional hearings and in the insurrection, seen as something of a last line of defense, if you will, inside, against the attempts to overturn the election.

I want to play for everyone just, a reminder, part of his testimony that the committee has used. Let me play this.


ERIC HERSCHMANN, FORMER TRUMP SENIOR ADVISER: I said I don't want to hear any other effing words coming out of your mouth, no matter what, other than "orderly transition."

Repeat those words to me.

And --


UNIDENTIFIED MALE: What did he say?

HERSCHMANN: Eventually he said, "Orderly transition."

I said, "Good, John, now I'm going to give you the best free legal advice you're ever getting in your life. Get a great effing criminal defense lawyer. You're going to need it."

And I hung up on him.


BOLDUAN: What can you tell us about Herschmann, what he could offer federal investigators?

ALYSSA FARAH GRIFFIN, CNN POLITICAL COMMENTATOR: Yes, Herschmann speaking to the grand jury is significant. He had -- he's going to be most helpful with corroborating testimony given, whether publicly in the January 6th committee or to the grand jury by Cassidy Hutchinson and Pat Cipollone.

Some of the moments that he had visibility into were access to are the final stretch of the administration, when it was the fake elector scandal, the day of January 6th.

And he's become a bit of a fan favorite in the congressional hearings for his sort of funny commentary. He is somebody who had incredible access to the president in those final days. And I think it is just another important person to bring in and piece together what we already know. But the more cooperation, the better for the DOJ's investigation.

BOLDUAN: Phil, on the FBI's search of Trump's home, "The Wall Street Journal" is reporting, as I mentioned, the attorney general deliberated over the search for weeks before signing off, weeks of meetings between top justice and FBI officials.

Accepting that the public does not know what all the information was, obviously, that Merrick Garland had before him in making this decision, what do you think his options were?

PHIL MUDD, CNN COUNTERTERRORISM ANALYST: Bad. And then you go from bad to worse. Let's talk about those options.

I saw the FBI director when I was there, Director Mueller, consulting in private almost every week when we went down, at about 7:45 in the morning with the attorney general. They met every day.

They would go off in a private room and discuss things like corruption investigations into members of Congress. But let's go through the bad and worse options.

Option one is continue the investigation. After the White House has said -- or Mar-a-lago has said, from a legal letter, there is nothing else here.

What do you do?

Do you insert more informants there?

If you do that, Mar-a-lago and the president are going to say you're spying on my house, just as they said you're spying on my campaign in 2016.

Continuing the investigation is a bad option. You can drop the investigation. It will leak that you had an issue with Mar-a-lago.

And people will say, why did you treat the president with kid gloves, when James Comey damaged Hillary Clinton's presidential campaign in 2016?

Why did you drop it?

Or else you can proceed with a search and people will say, as they did, you're targeting the president and you'll energize his base to get things like what we have seen in Phoenix and Cincinnati at FBI offices.

[11:10:00] MUDD: So you look at those three options and you can imagine why Merrick Garland is sitting around for weeks, saying, this is a disaster and any step I take is a problem. No good answers here, Kate.

BOLDUAN: There is also -- you mentioned Mueller. And Andrew Weissman, people may remember, he's a former investigator in the Mueller probe, a high profile name at that time.

He posted an interesting question that has not been answered amid all the noise surrounding this, which is why Trump still has not said why he took the documents, why he did not return them and what he did -- and what he did with them and/or was planning to do with them.

The fact that he has not answered those questions or offered that up, as he's been talking quite a bit, what do you think of that?

LITMAN: It doesn't give confidence, does it?

Look, whatever the hypothesis is, it could be that he sees them as his plaything to show, trophy to show friends. It could be that he is selling them somewhere. Either way, I agree with Phil. It was a tough decision in a way but ultimately simple.

Because when they wouldn't give up the documents and then lied about them, eventually Garland, who every day makes tough but, in this sense, simple decisions, had to make the call, we must get the documents back.

Whatever else we do, whatever happens to the criminal investigation, we must get the documents back.

And it matters. Trump could have tried to give explanations. But once it reached a point that he was subpoenaed and then somebody lied about it, the game was over. We have to get him and take the heat.

BOLDUAN: Alyssa, you and I have talked about what this episode means and says about Donald Trump and the Republican Party now.

"The Washington Post" columnist, Catherine Rampell, has a new column out and put it this way in her view, "At this point, no straw, no lead pipe even could break the camel's back. Republicans have demonstrated that Donald Trump could commit any transgression or crime and they would still defend it."

Do you agree with that?

GRIFFIN: Unfortunately, she's absolutely correct. As you and I have discussed before, just the way in which so many prominent elected Republicans came out and just the immediate response was to attack the FBI, without even having the facts, by the way, of why they raided and investigated Mar-a-lago.

The default position was we need to impeach Merrick Garland, we need to defund the FBI. That shows how far gone the party is. The only way that Trump stops being the leader of it is if he destroyed and loses electorally. Now that's complicated because he did lose in 2020 and 60 percent of

Republicans don't think that he actually did. But I am of the mind that we're talking about potentially egregious crimes.

Even if it is just simply top secret documents that he took, top secret documents, if put out into the public space, could pose grave harm to our national security. These are -- this is something that is so beyond the pale, something that my party criticized when the former secretary, Clinton, mishandled classified documents.

And now we're fully through the looking glass and pretending this isn't a big deal. So, yes, I think we're at a point where he owns the party. And if there were ever a time to break with him, this would be the clearest time to, especially going into an open primary.

And I would finally note he's also the only prominent Republican candidate who loses head to head with Joe Biden. So there is a certain absurdity to a Republican standing by him when he has this whole slew of investigations facing him.

BOLDUAN: It is good it see you guys. Thank you so much for coming on. Appreciate it.

Coming up, it is now up to the voters.

Will they re-elect Liz Cheney for her courage or punish her for standing up to Trump after the election?

A live report from Wyoming next.





BOLDUAN: Voters are heading to the polls now in Wyoming and Alaska. Donald Trump's influence being tested again, this time with three of the best known women in Republican politics on the ballot: Liz Cheney, Lisa Murkowski and, back for more, Sarah Palin.

Palin is looking to make a comeback in her bid with Trump's backing for the state's lone congressional seat. Murkowski, the only Republican senator up for re-election, who voted to impeach Trump, is facing an opponent who Trump labeled MAGA all the way.

The biggest contest, Liz Cheney, who was one of the first Republicans to call out Trump on January 6th and is now helping to lead the insurrection investigation, she is in a tough battle to keep her seat. Jeff Zeleny is in Wilson, Wyoming, with more on this.

What are you hearing today?

JEFF ZELENY, CNN CHIEF NATIONAL AFFAIRS CORRESPONDENT: Good morning. A steady stream of voters have really been trickling into the old Wilson School house here, which is very near Liz Cheney's home here in Jackson Hole, Wyoming.

And talking to voters, we have seen Democrats who are switching parties to vote Republican; we have seen Republicans who are casting their ballot for Liz Cheney. But this is a blue part of a very deeply red state. So the challenge for Liz Cheney, she knows, is a very uphill one, as she faces the biggest political fight of her life.


REP. LIZ CHENEY (R-WY): We have to set aside partisan differences and understand that there's something much bigger at stake here.

ZELENY (voice-over): On the eve of the Wyoming primary, Liz Cheney is in an uphill fight to hold her congressional seat, even as she begins eyeing the next steps in a bigger battle ahead.

CHENEY: Many people will come up to me and say I never voted for you before but I'm going to do it this time. And I say great and let's keep that going.

ZELENY (voice-over): A Republican from one of the state's most storied political families, Cheney has become a pariah in her own party and she's turning to Democrats and independents for last minute lifeline.


ANNETTE LANGLEY, WYOMING VOTER: I never thought I'd vote for Cheney but she has earned my respect.

ZELENY (voice-over): Annette Langley says she is a proud Democrat but she stood in line for nearly an hour today to change parties and vote Republican.

LANGLEY: She might not win but she needs as much support as possible for doing what she's doing.

ZELENY (voice-over): The odds are long, considering how former President Donald Trump's shadow looms large in Wyoming where the state's rolling summer beauty has been punctuated by a scorching political campaign between Cheney and Harriet Hageman.


ZELENY (voice-over): If the crossover vote doesn't save Cheney, her admirers hope it could help avoid an embarrassing blowout, the Trump would revel in.

DONALD TRUMP, FORMER PRESIDENT OF UNITED STATES: Liz, you're fired. Get out of here.

ZELENY (voice-over): Mike Sullivan is a former Democratic governor of Wyoming who served three decades ago. MIKE SULLIVAN (D-WY), FORMER GOVERNOR: Wyoming, always a trailblazer.

ZELENY (voice-over): He planted a Cheney sign in his front yard to send a message for democracy and the rule of law.

SULLIVAN: Without regard to her politics, she has reflected herself as a leader. I think history will prove and she -- her the legacy that she leaves will be a very impressive and important one.

ZELENY (voice-over): Joe McGinley, a former GOP County Chairman in Casper said he believes some Republicans are afraid to admit their support for Cheney, fearing the wrath from Trump and his loyalists.

JOE MCGINLEY, CHENEY SUPPORTER: There's a lot of people out there that are supporting Representative Cheney that are just afraid to speak up unfortunately.

ZELENY (voice-over): The outcome of Tuesday's primary will make clear whether such a hidden Cheney vote exists or if Republicans reward her for not changing her positions in the face of a brutal campaign.

CHENEY: I will never violate my oath of office. And if you're looking for somebody who will then you need to vote for somebody else on this stage, because I won't.

ZELENY (voice-over): These days, Cheney is hard to find outside of friendly audiences at house parties, which aides attribute to rising threats of violence. She told CNN last month she was well aware of the headwinds facing her.

CHENEY: I don't intend to lose. But some things are more important than any individual office or political campaign.


BOLDUAN: Jeff, as we know, Cheney is the last of the 10 House Republicans who voted to impeach Donald Trump for the insurrection to face a primary.

What is this going to show?

ZELENY: Well, look, we have seen throughout these primaries, throughout the summer, that the vast majority of the 10 will not be in Congress next year; some through retirements and others through losing primary races.

And if Liz Cheney falls short tonight, she will go on that list. But the January 6th committee continues. She's the vice chair of the committee, so their work is going to continue in September, where they're still holding hearings.

It is a dual track; yes, she's been focusing on her primary race here, trying to get independents and Democrats as well as Republicans to vote for her but still looking ahead as well to the January 6th commission.

The bigger question is, what comes after that?

BOLDUAN: Exactly.

If Cheney falls short, do we know what is next for her?

ZELENY: Look, I think we're going to get a fairly good sense tonight in her speech. Win or lose, she is going to, I'm told, offer sort of her view for the future. And we know she has one goal. She talked about it again and again.

She's been very consistent in this, unlike some Republicans, who have tried to sort of, you know, appease some voters who still like Trump. She's been very consistent, saying, look, her main goal is to keep Donald Trump from ever serving in the White House again. So what form that takes is the only question.

Will she run against him in 2024 if he runs?

Or is she going to form a group to support other Republicans?

I think we'll get a sense of a road map for her future tonight. So it is the beginning of the next chapter if the first one happens to end today, Kate.

BOLDUAN: This is just one stop on a very long future still for Liz Cheney, no matter what. It is good to see you. Glad you're there. Thank you so much.

We'll bring you the results as they come in.

Coming up, I'm going to speak with the former Director of National Intelligence, James Clapper, about what is at stake.





BOLDUAN: Back now to the top story. The Justice Department is rebuffing efforts to unseal the affidavit supporting the search warrant for former president Trump's home in Florida.

Now key members of the House and Senate are calling on the attorney general and the Director of National Intelligence to release more details on the seized classified documents. Joining me now, somebody who knows a little bit about all of this, CNN national security analyst James Clapper.

He's the former Director of National Intelligence.

Thank you for being here, Director. This request from the top Democrat and Republican senators on the Senate Intel Committee, the way they put it, is they say they want -- the request is to "share with us on a classified basis the specific intelligence documents seized from Mar- a-lago."

What would need to be taken into consideration with this decision?

JAMES CLAPPER, CNN NATIONAL SECURITY ANALYST: Well, if I were DNI, Kate, I think I would be coordinating very closely with the attorney general about how to respond to this and when to respond to it.