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Justice Dept. Identified "Limited Set Of Material" Potentially Covered By Attorney-Client Privilege At Trump Home; NASA Scrubs Launch Of New Artemis Moon Rocket; IAEA To Inspect Besieged Nuclear Plant In Ukraine. Aired 11-11:30a ET

Aired August 29, 2022 - 11:00   ET



ERICA HILL, CNN HOST: Hello, everyone. NASA's mission to the Moon facing an unexpected setback. Residents in Mississippi flee rising floodwaters as the governor declares a state of emergency. And the government's free COVID test program is ending. So what's the COVID strategy moving forward? This is what we're watching AT THIS HOUR.

And thanks for joining us, everyone. I'm Erica Hill in today for Kate Bolduan. We begin with new developments in the Trump investigation. The Justice Department says now it has identified some materials recovered from the FBI's search at Mar-a-Lago earlier this month, could be subject to attorney-client privilege, and we're learning some new details about this, in a new federal court filings. CNN's Kara Scannell joining us now with these developments.

So we knew, Kara, from the affidavit that was released, the redacted version released on Friday that there was this separate team that was going in, that was going to review documents for attorney-client privilege is this sort of telling us what they're finding now?

KARA SCANNELL, CNN CORRESPONDENT: Exactly. I mean, this is the status report of what that team. And this team, this filter team, that's what they're called, was involved with this from the beginning three weeks ago when the FBI executed that search warrant at Mar-a-Lago. Now, former President Trump's lawyers are saying they want a special master and independent person to conduct this review. So the judge told DOJ, you know, tell us what you've done so far, it's been three weeks since we've had these documents. That's what this new filing says. It says they identified a limited set of materials that could possibly be covered by attorney-client privilege.

They said they completed this review, and they've begun the process of going over anything where there could be a dispute. And the search warrant also lays out different ways that they were planning to handling dispute that is possibly going to the judge and private and saying, Judge, do you think that this could be covered by attorney- client privilege, setting it aside entirely? Or possibly giving it over to the other side and saying, are you going to assert and say that this should be covered by privilege? And so the investigative team can't see because that's what this filter is doing.

HILL: Right. And that's what I want to clarify with you too, for folks at home who aren't aware, these are not the investigators who went in. This is a separate team totally separate from the investigators for that purpose.

SCANNELL: Yes, and this is standard practice at the Department of Justice, whenever there's anything they've been covered by attorney- client privilege. I mean, we've seen this in other instances, they come in, they have a filter team, the filter team is unrelated to this, they go through it for anything that could possibly be covered, and what's not covered they give to the investigative team.

But if there's anything that is the investigative team doesn't get it. What the former president wants to do is to have a third party come in and we saw this with Michael Cohen because he was Trump's former lawyer. We saw this with Rudy Giuliani, because he was also Trump's former lawyer.

In both of those instances, judges had granted a special master to go in and do a separate review. In this instance, you know, this is the question for the judge now. Will the judge be satisfied with how DOJ has handled this? Or will the judge want to become more involved?

HILL: So we'll be watching that Kara. Appreciate the update. Thank you. Also joining me now, CNN senior law enforcement analyst Andrew McCabe. He's, of course, the former Deputy Director of the FBI. And CNN legal analyst, Paul Callan. I mean let's pick up where we left off with Kara, because I think it's important to lay out here too where we're at, at this point.

The fact that the president's, the former president's legal team was asking for the special master, some of the questions that were immediately raised when that was filed was it, it had already been two weeks at that point since the -- since those documents had been taken from Mar-a-Lago, and whether even still be a need. What would be happening in those two weeks? Is there a chance that they could have gone through all the documents?

SCANNELL: It is definitely possible, Erica, that they've gone through the documents, at least preliminarily in the first week. I should also point out the use of the filters in this case was -- in the very beginning to look at the affidavit in support of (INAUDIBLE) it lays out exactly how the Department of Justice intended to use a filter team here with (INAUDIBLE). In fact that it would be separate from the team of investigators and lawyers that are investigating the case. So it sounds like they stayed the course with exactly what they told the judge initially, and they've probably already conducted that to this point.

HILL: So Paul, looking at that, I mean, do you envision this as a situation where a judge would say, OK, yes, now you do need yet and you do need this special master, you need this third team to make sure that everything is you know, sort of aboveboard.

PAUL CALLAN, CNN LEGAL ANALYST: I think it would be surprising if the judge did appoint a special master, but of course you are dealing with a former president of the United States, and maybe the same rules don't apply. I mean, they say everybody's equal under the law, but former presidents seem to get an extra break. So that this judge, the new judge that's looking at this hinted earlier that she might go along with the appointment of a special master.


Now the Justice Department is saying hey we've had filter teams, taint teams look at this. We've separated out the attorney-client privilege documents. And we've even done consultations on the classified documents to make sure that all the materials are properly classified. So there's really no need for a new special master to come in.

HILL: With the timing issue also come into play here for the judge potentially, who could look at all this and say, well, maybe in the beginning, you might have needed one. But given that all this work has already been done, and I find it to be aboveboard, in this filing, if that's what the judge finds, then could that be?

CALLAN: Oh, that's a very -- it's an excellent argument. And I think a lot of lawyers who have looked at this and thought that this application to be thrown out immediately, they should have been in there the next day making this application before other people in the FBI and DOJ got involved in reviewing the materials. So the judge could easily say that.

But as I said, she's hinted she might go along with a special master. And she may be concerned about the publicity and the adverse publicity. But with respect to the court system, if this isn't handled in a very, very extra special way that wouldn't be handled in normal cases.

HILL: It wouldn't normally happen.

So as we wait, and as we watch for that, you know, we also know that there is this review this damage assessment that is happening now, Andy, looking at this, the materials, right, the DNI looking at recovered documents to determine whether there was any real harm done to America's national security. When we talk about that damage assessment, what are they looking for? Is it that sources could have been compromised, and they need to pull them out for their own personal safety? Is it a broader issue with national security as a whole?

MCCABE: It is exactly what you said, Erica. This is an effort to identify those intelligence collection techniques that might have been compromised by the unauthorized storing of these documents. So the reviewers go into it. And they say, let's assume the worst case scenario, if the information contained in these documents and has ended up in the hands of our adversaries, what would we need to do in the case of human intelligence, you would think about pulling that source out of the country they're in, maybe bringing their family with them, relocating them for their safety, in this in the case of technical intelligence.

So our covert ability to listen to communications, overseas, things like that, you might have to pull some of those technologies out of place to ensure that they're not uncovered or discovered by our adversaries. So this is all about trying to preserve our continued ability to collect intelligence.

HILL: I'm interested to see if that assessment could potentially come into play legally. I do really quickly want to get your take on that this. Over the weekend, we heard from Senator Lindsey Graham, talking specifically about what's happening here with a former president, I just want to play his words.


SEN. LINDSEY GRAHAM (R-SC): If there's a prosecution of Donald Trump for mishandling classified information, after the Clinton debacle which you presided over and did a hell of a good job, there'll be riots in the streets.


HILL: So if he's prosecuted for mishandling classified information, Senator Graham says there's going to be rioting in the streets. Look, I know you have been, unfortunately, on the receiving end of threats, Andy, but when you hear those words from a sitting U.S., Senator, what do you think the impact will be?

MCCABE: Well, you know, it would, first of all, he might be right. There's that -- we have lots of reasons to believe that many of Mr. Trump's most ardent supporters might decide to resort to violence, or you see how people responded to just the information that his residence has been served. So I think it's definitely a concern for national security officials.

However, however, if the Department of Justice makes the decision to not prosecute a former president, when the facts in the law indicate that that prosecution should go forward, and they decide not to simply because they're afraid of how that former president's supporters might react, that is literally holding justice hostage in this country.

And I don't think that that is an acceptable result, under any circumstances, despite what the threats or the configuration or the public outrage might be. Those are all things that we need to be able to manage. Justice must be done when justice is called for no matter who the target of that justice is. And that's just my personal opinion on it. But I hope that the senator's comments don't take the day.

HILL: Yes, well, we'll be watching to see what happens here. But the law should be applied the same to everybody, should it not? Good to have you both with us this morning, Paul, Andy, thank you.

We're keeping a close watch on what is happening in Florida, an engine issue forcing NASA to postpone this historic return to the moon. So these are live pictures here of the new Artemis rocket, still there on the Launchpad 39B at the Kennedy Space Center. The issue for that led to the scrubbing of the launch today discovered just ahead of the launch window opening this morning.

Thousands of spectators have traveled to Florida for that launch among them Vice President Kamala Harris. CNN's Kristen Fisher is live at the Kennedy Space Center with more on what happened here and also the possibility for another attempt in the near future. So Kristin, what's the issue?


KRISTIN FISHER, CNN SPACE AND DEFENSE CORRESPONDENT: Well, the issue is with one of the four RS-25 engines, which powers the main core stage of this Artemis rocket, that's the big burnt orange tank in the middle that you see. And these rockets are tried and tested, they flew this particular rocket engine, engine number three, flew several times during the space shuttle missions. So this has flown many times before. But a lot of these parts are finicky.

And so today, was really a day where NASA was for the first time putting all the little pieces together and seeing how this system integrates as a whole. They made it through several different troubleshooting problems. There were four, in fact, the first was lightning, there was lightning that was too close to the Launchpad. So that delayed things about 45 minutes. Then once they started this super cold fueling, the propellant fuel of liquid hydrogen and liquid oxygen, they got a liquid hydrogen leak. They fix that.

And then there were two other problems. The one they couldn't fix was that engine, Erica. And we're going to be getting a presser in just a few hours to learn exactly how long it's going to be before they can attempt again. Erica?

HILL: Yes, because that is everyone's big question now. That's for sure. Kristin, appreciate it. Also with us now, CNN aerospace analyst Miles O'Brien. He's the science correspondent for PBS NewsHour. So Miles, when we look at this, as Kristin just mentioned, we're going to have an update in a few hours. But as we sit here and look at what's to come, there is a launch window on Friday, chances that this is resolved before then?

MILES O'BRIEN, CNN AEROSPACE ANALYST: It feels like a problem that may be difficult to fix while it's sitting on the Launchpad. All right, I don't want to get too far out ahead of this 1:00 p.m. a news conference. But it's not easy to fix a shuttle main engine on the pad. And so it's very familiar to the shuttle program. Liquid hydrogen ultimately is the coldest substance on the planet. Hydrogen is the lightest element.

So you have all kinds of extremes. And it tends to leak, it tends to freeze up plumbing and these kinds of problems bedeviled the shuttle program. And here we have a shuttle main engine up to its old tricks. And so, you know, I don't know how long it will take to fix it. But it feels like it could take a while.

HILL: So on the one hand, is it helpful, right? Like there's been so much talk this morning, I've been listening to you throughout the morning talking about how this -- I mean these are old parts. So in many ways, you know how they work to a certain extent. Could that then make it easier to troubleshoot this?

O'BRIEN: Yes, there's a familiarity to all of this, right? I think the team well understands these rocket motors, of course, having flown so many shuttle missions, and these particular engines collectively, have been in space 25 times. Obviously, they've been refurbished and modified for this purpose. But the basics of it, the physics of this fuel, which is wonderfully potent, but very finicky and difficult to deal with meeting these engines and making sure everything is perfect at that moment for launch. To me sometimes, Erica, I wonder, it's a wonder to me they ever get off the Launchpad, all those parts, all those things have to be perfect.

HILL: Right. When we look at what ultimately, right as we're thinking positively that Artemis is eventually going to make it off the launch pad, remind us why this is such a big deal. What this mission is potentially setting up.

O'BRIEN: Yes, a lot of people say why are we going back to the moon, is this some sort of weird nostalgic play. But we went to the moon in the 60s on a sprint, and it was not sustainable. We, the United States beat the Soviet Union in the context of the Cold War. But there was nothing about it that could stay, we couldn't stay. And so here we are 50 plus years later, the idea is to go there, set up a camp, learn how to live and work on the surface of another body and use that to eventually go into Mars.

We don't know enough to go to Mars yet. We have to learn a lot of things. The moon is not a bad place to do that. So if you're into space and the idea of humans living off this planet, this is a pivotal moment.

HILL: Yes, and a lot to be learned from even the experiments that will be on board with those three mannequins and the Snoopy.

O'BRIEN: Of course, don't forget the Snoopy.

HILL: Miles, nice to see you. Thank you.

O'BRIEN: Good to see you, Erica.


HILL: Coming up, inspectors from the U.N.'s nuclear watchdog now on their way to the Russian controlled nuclear plant in Ukraine. We've got the latest for you from Ukraine, that's next.


HILL: Checking now the war in Ukraine, a team of inspectors from the U.N.'s nuclear watchdog is heading to Ukraine's besieged nuclear plant as officials report more strikes in the area. Authorities in fact, so concerned about the potential for disaster there. They're actually distributing iodine pills to local residents. CNN Sam Kiley has the latest for us from Zaporizhzhia.

SAM KILEY, CNN SENIOR INTERNATIONAL CORRESPONDENT: The Ukrainian Ministry of Defense has confirmed that an offensive is currently underway in the south along the southern battlefields predominantly in Mykolaiv and Kherson provinces. And this is because clearly their target is going to be the city of Kherson which sits not only on the Dnipro but at the head of a canal supplying water to Crimea, which the Ukrainians cut in 2014.

Kherson was among the first targets, first cities captured by the Russian so it's clearly a very, very important strategic location. This is also a very important moment for Ukraine. Just over six months into the war, they've been talking a lot about a countering counter- offensive. My colleague Jim Sciutto says that his sources are describing this early stages as what they call the shaping operations going after command and control systems, air defenses, and so on.


But we're also hearing anecdotally on the ground from soldiers that a number of small villages may already have been captured as the Ukrainians tried to get on the front foot in this war. And all that is coming at a time when the Zaporizhzhia nuclear power station remains itself on the front line, the United Nations saying that it is hoping to get inspectors into that location with the agreement of the Russians and the Ukrainians in the next few days.

Sam Kiley, CNN, in Zaporizhzhia.

HILL: Joining me now to discuss, CNN political and national security analyst David Sanger and CNN contributor Jill Dougherty. Good to see you both this morning. David, I was struck by this team, this picture rather than it was posted of the IAEA team, clearly to send a message, I think we have that picture, we can show the folks at home. But when we talk about what's going to happen here, realistically, what power does this team have? What can they do on the ground, David?

DAVID SANGER, CNN POLITICAL & NATIONAL SECURITY ANALYST: Well, their first power is one of just reporting what's happening inside the nuclear power plants in the control systems. We don't really know we don't have much visibility there. We have episodic reports that leak out from people who are working at the plant, but many of them are working under gunpoint or other awful conditions. The main issue here, though, Erica, is that the IAEA isn't really for the kind of assignment that they are being given here.

They can go in and look at the fuel, assure that none of its leaking, like and look at the control systems, and so forth. They can help on all the technical issues. But the problem here isn't fundamentally technical. It's fundamentally political. We have people shelling out right near the plant. The IAEA has no capacity that stop anyone from doing that. The Russians, of course, blame the Ukrainians, the Ukrainians blame the Russians but clearly have the Russians not invaded, this would not be going on right now.

So we're in an odd situation where we're asking an IAEA technical group, to basically come into something that needs a political solution. And that requires the United Nations and other nations in addition to Russia and Ukraine.

HILL: Well, and somewhat to that point, Jill, there have been calls from the U.S., the U.N., the E.U. to establish a demilitarized zone essentially around the plan. Again, as David points out, we don't know exactly what's happening in there. But there are these images of Russian vehicles inside the compound. What do you think the chances are realistically that Russia, Putin really would agree to something like that?

JILL DOUGHERTY, FORMER CNN MOSCOW BUREAU CHIEF: Well, so far, Erica, they're not. And certainly they do want to hold this station, because, you know, it's critical. Energy in this war is really important, and access to electricity. And, again, that not to mention the safety, this is very, very important. So they do want to hold on to it. But they're saying today, in fact, this morning, our time, the foreign minister is saying we will. Moscow will abide by the rules and coordinate with the IAEA.

But when you get down to the actual steps, you know, of protecting that plant. We don't know, as David pointed out, we don't know exactly what is going on. But we do know that both sides are shelling the other and that is highly dangerous, no question. So that is the main thing. If they could establish that kind of DMZ around the area, presumably it would be crucial, very helpful to protect the planet.

HILL: And not just when we look at this, it's not just in that area that there is genuine cause for concern. But there could be David, a much broader threat to Europe itself.

SANGER: There could be and that sort of gets to the critical question, Erica, of what Putin is doing here. And Jill knows this having lived in that region much better than I do. You know, at the beginning of the war, you saw Putin threatening to use nuclear weapons, and he was widely condemned for this. He hasn't done it much lately. By threatening the plant itself, he gets some of the intimidation benefits of threatening the use of nuclear weapons without actually turning to a weapon.

Obviously, if there was a radiation leak, and so forth, that would create many of the conditions that the use of a small tactical nuclear weapon would. Now Putin may well be deterred from that because you don't know which way the wind is going to blow and it could easily blow back on Russia as it could on Europe. But the opportunity here for an uncontrolled accident is huge.

And the Ukrainians were contending, we have no way of affirming this that there was a building struck that was just a few 100 meters from one of the reactors. So that's what we're playing with. And really we never contemplated before, the concept that a major state would basically hold hostage, a nuclear power plant and threaten a disaster that could have nuclear weapons like effects.


HILL: It is a sobering thought. Jill I saw you, you know, shaking your head there, if you want to just weigh in quickly. I would like to get your take on this shaping reporting that we have. So that we just heard from Sam Kiley, he's learning on the ground from some villages. Jim Sciutto is reporting that the Ukrainians are working on these shaping operations to try to take back some territories, where do things stand in terms of the Russian army, and we heard about more inscriptions? How much longer can Russia hold on here, if we don't have a real sense of, you know, even casualties?

DOUGHERTY: You know, I think if you look at it big picture, Erica, I think that they can just drip this out, you know, drop by drop by drop, decimate one area attack another, you know, injured people, killed people, without a major claim of victory. I think the destruction that Russia is carrying out on Ukraine can be incremental. And that is just as bad in a way as something even bigger. In other words, you can just keep the Ukraine unstable, physically destroyed for a very long time. And that needs suit the purpose of Vladimir Putin right now and even short to long term.

HILL: Jill Dougherty, David Sanger, great to have your insight as always, thank you both.

SANGER: Thank you.

HILL: Coming up here, a suspect opens fire in an Oregon grocery store killing several people, those details next.