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Don Lemon Tonight
DOJ Response To Trump's Plea For Special Master: What This Mean In The Midterms. Aired 11p-12a ET
Aired August 30, 2022 - 23:00 ET
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
[23:00:00]
DON LEMON, CNN HOST: Hello, everyone. We are standing by for the Justice Department to respond to Trump's request for a special master to review documents seized from Mar-a-Lago. Their deadline is midnight. So, getting close. The response could come at any minute. It is expected to be roughly 40 pages. That is double the court's usual limit, but the DOJ got permission to submit a long response because apparently, they've got a lot to say.
So, let's bring in now CNN senior legal justice correspondent Mr. Evan Perez, Attorney Mr. George Conway, and legal analyst Elliot Williams. Good evening, sirs, one and all.
Evan, I'm going to start with you because the DOJ is just minutes away from that midnight deadline literally.
EVAN PEREZ, CNN SENIOR JUSTICE CORRESPONDENT: Yeah.
LEMON: They've got an hour, right, to respond to Trump's special master request.
PEREZ: Yeah, I keep refreshing -- yeah, I keep refreshing my screen, trying to see if, you know, it's like waiting, waiting, waiting.
LEMON: What are you looking for? What do you expect?
(LAUGHTER)
PEREZ: Well, we're waiting to see the filing come in. And Don, look, I mean, I think the fact that they are asking for -- asking for double the number of pages that they usually have in the southern district of Florida tells us that the Justice Department believes that they need to talk -- they need to say some more about what the former president was alleging in his lawsuit against the government asking for the special master.
There are a lot of things that the former president said in that filing. Obviously, a lot of it were his grievances about how the FBI and the Justice Department are biased against him, but some of it was about how cooperative he has been with this effort to get these documents back.
So, I think you're going to hear a little bit more about that in this filing. There is a lot of narrative that we still do not know about, you know, beginning obviously in 2021 when the National Archives first approached the Trump team and asked them to please return these documents that belong to you and me and all Americans.
LEMON: What are you looking for, George?
GEORGE CONWAY, ATTORNEY: Well, I'm going to be interested to see if they do contain more of a factual narrative than was in the search warrant affidavit. But I think we are going to see basically some mostly legal argument, and the argument is going to be, your honor, there is just no need for a special master here, there is no point to it.
A special master is something they only really use for attorney-client privilege situations where the FBI is executing a search warrant on a law office where there could be dozens of potential clients who have nothing to do with the investigation, whose materials could be swept up in a search.
And that is the reason why the special master device is being used in situations like the Cohen search warrant and the Giuliani search warrant, but it really does not have any bearing on the situation where there is the principal issue of executive privilege and shouldn't because here, the former president is asserting a privilege against the executive. There is no basis for him to keep documents that belong to the executive from the executive branch.
LEMON: Yeah. Again, we are awaiting those documents, the response from the Justice Department on Trump's team's request for a special master. Everyone is looking down at their devices, trying to refresh them to see if it comes in. It will come in at any moment.
In the meantime, let me bring in Elliot. Elliot, if this Trump- appointed judge does grant a special master, what happens next? How will this person be chosen and how long could it take to go through all the documents?
ELLIOT WILLIAMS, CNN LEGAL ANALYST, FORMER DEPUTY ASSISTANT ATTORNEY GENERAL FOR THE OBAMA ADMINISTRATION: Look, picking up on Georgia's
point, the problem is we do not know because the scenario has never come up before, right? I mean, special masters are incredibly common in cases where you have attorney-client privilege. It's sort of -- it is this privilege that exists between everyone who has ever had an attorney, right, the things you say to your attorney.
It's never really been a scenario in American history where a president sought to assert executive privilege, to protect documents, as George has said, against the executive branch, the Justice Department, from investigating either him or other people.
And so, that ties into this question of, how do you even find a special master to look at these things? Number one, you are going to need somebody with either very high security clearance or who can get one because the fact that they're going to have to look at really sensitive documents, and somebody who is not going to be seen as politically tainted, I just think it is going to be very hard to find who the special master would be. There is not a roadmap in this document, to be perfectly clear. And part of, I backed Evan's point, part of why the Justice Department needs 40 pages to lay this out is that you have to spell out very complex legal issues of what happens when a president seeks to assert a privilege against his own government.
So, it's just - it is not -- I mean, it may seem obvious, people may say, of course, he can't do that or partly can't do that, but it is just never done before, and the Justice Department has to lay it out.
[23:04:57]
LEMON: So, Evan, Trump's special master request was a part of a 27- page lawsuit filed with, you know, Trump's grievances and clams that his constitutional rights were violated. Do you expect the DOJ to correct the record tonight?
PEREZ: I do. I do think that that is part of what you are probably going to see because one of the things that we know, Don, is that the documents that we have seen released from the Justice Department so far have been dated, frankly. You know, the affidavit is the thing that they presented to the judge to get the search warrant.
So, now, for the first time, we for the first time are going to have the Justice Department and their ability to address some of the things that have happened since the Mar-a-Lago search. And so, they are going to want to come in and at least try to correct some of the record, again, about the level of cooperation that they've had from the former president.
What exactly happened between June when they had that one meeting where they were able to get some documents? What happened between then and August when they had to conduct the search, when they believe they had reason to go back in there and do it with a search warrant?
There is something that happened, and so we are going to see from the Justice Department perhaps something that explains some of that. I think that's what I'm looking for in this document because I think it is going to be helpful for us to understand this unprecedented situation.
LEMON: Elliot, what did you want to say?
WILLIAMS: Think about it. So, one of the problems here is, what do you even do -- so, imagine that the Justice Department did, in fact, sweep up documents that they shouldn't have. Let's just pretend that they did, right?
Now, if it was attorney-client privilege, you would figure some way to get the documents back to -- or if it is personal property, the Justice Department would get it back to that person. It's their trinket of a stuffed cat. I don't know. On the counter, if it gets swept up, you can give it back to the person.
Here, these don't belong to the person who has them in his possession. There is -- you know, they're not private possessions. So, where do they go and what you do with them, that's another thing that sort of has to be sorted out by the Justice Department and the judge, and it's actually a very, very complicated question.
Now, this certainly should not be Donald Trump. But then, what do you do with them in any event? But it is not just something you can say, they do not belong to him. You just have to fill that out in a very complicated legal document.
LEMON: George, what do you see as team Trump's strategy here? Are they just trying to hold up the investigation through any legal challenge?
CONWAY: Yeah, I think that is what they're doing. I think they're essentially just throwing stuff around and see if anything will stick. I mean, the argument that they made about a special master was made without any factual assertion about attorney-client privilege and without any factual assertions made other than in the brief. Normally, you are supposed to submit an affidavit. That's what the government did, in fact, when it got a search warrant.
And I think what is going to be interesting is that the Justice Department is actually going to respond with facts, facts that are going to probably be harmful to the former president.
For example, the former president asked one of -- one of the forms released that the former president asked for was a more detailed list of what was taken from Mar-a-Lago. Well, that, if he -- they may actually give it. They probably gave that already to the judges, probably going to unseal. They may see some of it when the seal is lifted.
There is certainly no reason why -- other than national security why some of these documents cannot be described in more detail. Certainly, Trump has knowledge of what's in there. And certainly, the level of classification of some these documents can be described. And that will be further damning to the president because -- the former president because he -- at one point, his lawyers represented that all the classified material has been given back.
LEMON: Hmm, sounds like they're in a pickle, Evan. I mean --
(LAUGHTER)
LEMON: Trump's allies keep claiming the former president is being treated differently than Hillary Clinton. What is the truth on that? Does Trump have himself to blame for all of this?
PEREZ: Well, I mean, kind of. Why? Because he made such a big deal about Hillary Clinton and said that as a result of the fact that she had a server in her home where she held some documents that were various classified levels, because of that, they wanted to essentially increase the penalties for mishandling classified information.
So, in 2018, the former president, well, he was president at the time, he signed a law that took the penalty from one-year penalty to five years, making it a felony. So, that is part of the consequence of making a big deal about what Hillary did.
And so, the president really, you know, is being judged on the merits of -- on the basis of the law that he himself signed, right? He said he wanted tougher law for mishandling of classified information. Well, you got it. And so, now, he may feel the consequence of that.
[23:10:00]
LEMON: Is that a fair comparison, to compare what happened to Hillary Clinton? I don't know if George or Elliot who -- raise your hands if you want to respond to that. George, go ahead.
CONWAY: It's not fair. It's not fair in the slightest because there is only a limited amount of classified information that was found in Mrs. Clinton's emails. And this was stuff that she -- he personally took out of -- Donald Trump personally directed that these materials be taken out of the White House.
Mrs. Clinton cooperated with the investigation into her email server, and Donald Trump basically delayed it for a year. And to talk about -- you asked the question on whether or not he did it to himself, he absolutely did do it to himself.
I suspect that if in 2021, when the National Archives started first asking about where are some of these documents, if he had just simply taken all the documents that he had taken from the White House and returned them, we would not be here today.
Instead, he's in serious legal jeopardy because he maintained these documents despite all the efforts by the National Archives to get them or have them returned, and then he returned some of them, and then was apparently deceptive about whether or not he returned all of them. And, you know, there was a subpoena. He obviously did not cooperate with that. So, that is why there was a search warrant.
So, he has basically dug himself a hole. He has basically -- the Justice Department essentially gave him a rope, gave him latitude, gave him a break, and basically, he took that rope and he hung himself with it.
LEMON: Thank you, gents. I appreciate it. So, we are all standing by. We are awaiting the DOJ's response to the Trump team's plea for a special master. The deadline is at midnight.
Plus, in the midst of the investigation, the scandals, the continuing threat to our democracy, the midterms are just weeks away. What will all this mean at the ballot box?
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[23:15:00]
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LEMON: Okay, as we are talking about, we are awaiting the DOJ's response to Donald Trump's request for a special master to oversee the FBI's review of materials seized in the Mar-a-Lago search. That as some Democrats have begun sounding the alarm about the growing threats facing our country's democracy as we head into the midterms.
My next guest is one of them, Rhode Island Congressman David Cicilline. He joins me now. He's also the author of the new book, "House on Fire: Fighting for Democracy in the Age of Political Arson." Now, that is the title. That's a title there Good to see you. Thanks for joining, congressman.
So, any minute now, as I said, we're waiting on the DOJ to file this response to Trump's request for the special master. What do you expect to learn and do you think it's going to affect this investigation?
REP. DAVID CICILLINE (D-RI): Don, look, I expect the department is going to object to a special master and say it's unnecessary. But if the court decides to do it, it might require some additional weeks. But it won't change the substance of this case.
This is a president who has taken classified documents out of the White House, taken to his personal residence where they don't belong. He has endangered the national security of the United States, maybe of individuals who have helped collect evidence that has helped to keep us safe.
This is just one more in a long list of incidents of misconduct of this president. It's why I wrote the book to really help sound the alarm that we are facing an extraordinary threat to our democracy.
LEMON: Speaking of that list, I want to take a step back and talk about that because here we are in another Trump's scandal, right? You said another long list, a mishandling of top-secret documents, classified materials, former president refusing for more than a year to return the documents, invoking executive privilege.
You were an impeachment manager in Trump's second trial. He has been embroiled in so many very serious proceedings, but has yet to face any consequences. Do you think that's going to change?
CICILLINE: I do think that's going to change. That's what the danger of this moment is. You know, the Republicans who are part of this ultra MAGA crowd have excused the conduct of this president. They helped facilitate the big lie by confirming or suggesting that he, in fact, won the election that was stolen from him.
That led to the events of January 6 where the president -- where the former president incited a violent insurrection against the government of the United States, attempted to stay in office, refused to allow the peaceful transfer of power for the first time ever in our history, and then engaged in a series of other efforts to corrupt the elections, tried to affect election results in states like Georgia, attempted to corrupt those election results, now we know he has taken documents that were unlawful to take.
This is a president who has engaged in really lawless behavior. And what we have is a Republican Party that has stood by him no matter what. They fabricated excuses for him. They've devoted to the cult of Trumpism. This is a classic definition of authoritarianism and of fascism.
LEMON: Go on.
CICILLINE: It's stoking division. It is supporting the president no matter what he says. It's promoting the big lie. It's the idea of obsessing with some theory of a plot.
The Republican Party is no longer your parents' Republican Party. This is a party of corruption and chaos and insurrection and QAnon and Marjorie Taylor Greene and the big lie, and they have lost the right to control our health care, our economy or our democracy. I think that's what we're going to prevail --
LEMON: Well, you just said fascism. The president used semi-fascism last week. I noticed that you said also ultra MAGA lies. Is that a talking point? Have you guys gotten together, Democrats?
[23:20:00]
CICILLINE: No, look, I think -- look, you -- I actually write about his on my book. There is a checklist for fascism. It has a whole list of things of, you know, obsession with a plot, machismo, militarism, rejection of modernism, obsession with authoritarianism, selective populism, promoting untruthful statements, stoking divisions, threatening violence to achieve political ends.
Go through that checklist and Donald Trump has satisfied almost every element.
LEMON: Okay.
CICILLINE: You can meddle with the words, but the reality is this is an authoritarian president that has engaged in behaviors that are very anti-democratic that are threatening American democracy.
LEMON: Okay. So, this is what you said yesterday. You said, we see people like Lindsey Graham who is essentially saying either allow Trump to get away with what he is doing or there will be more violence. That is a fascist statement. It's the use of violence for political means.
CICILLINE: That's the definition.
LEMON: You mean that?
CICILLINE: Absolutely. I mean, basically saying, Donald Trump, if you don't allow him to engage in this conduct and not be held accountable, if you try to hold him accountable and demonstrate that nobody in America, including a former president, is above the law, there will be violence.
That is a classic threat of violence to achieve a political agenda. If you don't let him stay in office, even though he lost the election, there will be violence. There was violence.
LEMON: Listen, I have to give you this. When you come in and you say things like that, when you say things like fascism, you are giving the evidence of what you believe are fascists statements and what fascism is. But do you think that further divides us by actually calling people fascist?
CICILLINE: I think --
LEMON: I said moments ago, a Republican and a Democrat, and the Republican said, Alice Stewart, he's calling all of us fascist.
CICILLINE: What I said is that fascist -- I don't think anyone is calling all of it. That is fascist behavior, anti-democratic behavior. If you look throughout the history, those are classic examples of behavior that result in fascism.
We have a responsibility to call this out. That is not to say every Republican is doing it, every Republican is promoting this, but those, in fact, are anti-democratic activities that are threatening American democracy. We need to call it out for what it is. Every single time we stand up against the poisonous lies that are undermining our democracy, we are defending the democracy that we live in, and we've got to do that.
LEMON: Do you think Republicans realize that? I mean, he made a distinction. I watched the speech and I read the transcript. He did make a distinction between sensible Republicans and what he calls the MAGA Republicans, when he talked about this idea of fascism, semi- fascism philosophy. Do you think Republicans know that he is making a distinction and they're doing it on purpose?
CICILLINE: Of course, they know.
LEMON: Do you actually feel they feel that, that he is calling them fascist?
CICILLINE: I think we shouldn't obsess about the terminology. What we're talking about is behavior that is anti-democratic, a president who refused the peaceful transition of power, who incited a violent insurrection against the government of the United States, who has attempted to corrupt the election and refused to admit that he lost, and now has taken documents from the White House that can compromise the national security of the United States, and the list goes on.
LEMON: We got to talk about this. We are waiting those documents. But again, the book is called "House on Fire: Fighting for Democracy in the Age of Political Arson" by Congressman David Cicilline. Is that a correct pronunciation?
CICILLINE: Cicilline.
LEMON: Cicilline. Thank you, sir.
CICILLINE: Thanks for having me.
LEMON: It is a pleasure. So, the DOJ's response to team Trump's request for a special master is expected any moment now. Plus, Atlanta area district attorney, Fani Willis, well, she is citing rap lyrics in her indictment of 26 alleged gang members, but should these lyrics be treated as evidence or as art? We'll discuss, next.
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[23:25:00]
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LEMON: Here is the breaking news on CNN. Those documents, a response from the DOJ for Trump's request for a special master, we have the information. The filing is in.
We are going to get straight to CNN's Sara Murray in Washington, D.C. with the very latest. Sara, do we know what it is or are we just hearing that it has dropped?
SARA MURRAY, CNN POLITICAL CORRESPONDENT: Well, it has dropped. It's before midnight, so you're welcome for that, I guess, thank the Justice Department. The team and I are still going through it.
This, of course, is the filing. The Justice Department is responding to Donald Trump's request for a special master. In this case, he had a lot of concerns about potentially privileged material. He had concerns that somehow the Justice Department had gone over the top. You know, Trump had insisted in his motion that he had been very cooperative with the Justice Department.
And what we are seeing here is a lengthy response from the Justice Department, which we expect is going to lay out their legal arguments for why they don't believe a special master is necessary in this case. And also, you know, why they believe they went to these lengths and took the unprecedented step of searching the former president's residence.
But, Don, as I said, I am going through this. The team is going through this. We're looking for the highlights and the new details right now.
LEMON: Okay. Evan Perez is going through it as well. I want you to stand by, Sara, and help us out with this. We get to Evan in a moment. In the meantime, I have formal federal prosecutor Elie Honig here joining us.
So, Elie, this is coming in just about 30 minutes before the deadline, which was midnight when we were supposed to expect the -- that is the deadline. So, what do you think are we going to learn? Do you think they took this time and they added 20 pages? Usually, it is about -- there's a 20-page limit. This is about 40 pages. There is something going on here and the DOJ wants to make its case.
ELIE HONIG, CNN SENIOR LEGAL ANALYST: Yeah, this is a statement moment, I think, for DOJ. It's the first chance to address Donald Trump's accusations in a robust way. I think we are going to get some detail about what was in the documents themselves.
[23:30:03] Remember, we know very little about the documents that were actually seized during the search warrant. We've seen the receipt for property, hut it's very general. It is box of documents. Really, the most important thing we learned is that several of those documents were classified and classified at the highest level, top secret, SCI.
But I think we will get a glimpse into what specifically is in those documents. I think it will be interesting to see what DOJ's position is here. I think they are going to oppose a special master, but are they going to propose some sort of fallback position, which is judge? If you do appoint a special master, we like to do it in a way that does not derail this thing, that does not take us out of this thing for months at a time.
LEMON: Jus so you know, I'm just looking at it. I'm not going to try to summarize it, but I will just tell you, it says that, you know, Donald J. Trump, plaintiff, versus United States of America, defendant. United States response to a motion for judicial oversight and additional relief.
And then it says, on August 22nd 2020, 14 days after the DOJ executed a search warrant at the premises located at 1100 South Ocean Boulevard, Palm Beach, Florida, 33480 is the zip. Here and after the premises -- the property, it is a very small print here, the former president of the United States. It just goes on. Donald J. Trump.
HONIG: Images there?
LEMON: Yeah.
HONIG: The 14 days, I think, they remind of the court (ph). It took Donald Trump's legal team 14 days to even put in this motion when they could have and should have put it in on day one. I think that will be one of their arguments. That it is sort of too late, that the ship has sailed.
LEMON: Let's see. I hereby certify as follows, I have been designated to service custodian of the records of the office of Donald J. Trump (INAUDIBLE) testimony. I understand that this is certification that is made to comply with the subpoena. I just went to the end to see what happened here. There are some things that are redacted.
Evan Perez is going to join us now. Evan, I'm just going over this. I just got it, but you have had a chance to go over it a little bit longer than I have. Have you come to any conclusions about the special master? What is going on?
PEREZ: Well, Don, the Justice Department is saying that the request -- the relief that Donald Trump's legal team is asking for is not really something that should be granted at this point where, you know, it is not clear that he even has a right to make this request or, you know, to go to this judge to ask for this request.
But I will call your attention to -- I think the control room already has a picture that is attached, one of the attachments to the document, which shows the condition that some of these documents were found in.
If you look closely, you will see some of the classification markings on there. You'll see the sort of the disorganized way that some of these documents that the FBI, when they conducted their search, this is how they found them and they took a photograph clearly here, depicting some of the classification markings. If you look closely, you will see top secret, secret.
It really goes to why the Justice Department felt they had to go in there. And the narrative, there is a narrative that is described on page nine. We have talked a lot about this June meeting that the president's legal team was given a subpoena and they were told to turn over any documents that had classification markings. And so, they showed up in June, and they are told, this is it. They are given an envelope with it.
And what we've heard from the president's team, the former president's team, is that this was a very pleasant meeting, they were very cooperative. What the Justice Department says, however, is that the FBI agents who were there were not permitted -- were permitted to go to the storage room where these documents were being held, but they were explicitly told that they could not open the boxes, they could not look inside anything that remained in the storage room.
That does not portray the same level of cooperation that the former president has been claiming. Again, this is part of the effort, I think, part of this document is to correct the record that we have heard from the former president's legal team --
LEMON: Evan --
PEREZ: -- to try to explain that they have been very cooperative.
LEMON: Let me get to what you are seeing on your screen there, Evan, as we go through this. This is a description of the photo that is included. The investigator team has reviewed all the materials and all the containers that privileged review team did not segregate as potentially attorney-client privilege.
Of the seized evidence, 13 boxes of containers contained documents with classification markings, and in all, over 100 unique documents with classification markings. That is more than twice the amount produced on June 3rd, 2022. That was the one before, right?
In response to the grand jury subpoena were seized -- certain of the documents had colored covered sheets indicating their classification status. See example attached and there is attachment of certain (ph) thing. The FBI photographed certain documents and classified covered sheets recovered from the container in the 45 office.
[23:35:04]
The classification levels ranged from confidential to top secret information, and certain documents included additional sensitive compartments that signify very limited distribution. In some instances, even the FBI counterintelligence personnel and DOJ attorney conducting the review required additional clearances before they were permitted to review certain documents.
Hold on, Evan. Elie?
HONIG: First of all, this is a national security nightmare, to have documents like these at this level of sensitivity and classification splayed out on the floor of a hotel. I think the visual is quite visceral. It packs a punch and really shows you what those agents found.
A couple of important things about the passage that you just read, Don, first of all, what DOJ is saying here is, we did our own internal review for attorney-client privilege. We knew that because DOJ suggests it, recommends it in their prior papers.
They said once we pulled out attorney-client privilege documents and kept them away from the investigative teams, we were left with, I believe, it says, double, approximately double the amounts of documents that were given us -- to us when we served the subpoena.
So, in other words, DOJ tried to do this the easy way. They served a subpoena on Donald Trump's team. They've got certain amounts of documents, and we're told, essentially, this is everything, and then they went in, did the search warrant, and found more than twice the amounts of documents with classification markings that had not been produced.
I think that's an important detail, but the question is, why did DOJ feel the search warrant was necessary? This answers that question.
LEMON: Our national security expert is Juliette Kayyem. She joins us now. Juliette, you have been listening to the information that we are getting from the DOJ now. You've seen the picture of the documents up on the screen, and you heard our description of it. What is your assessment at this point?
JULIETTE KAYYEM, CNN NATIONAL SECURITY ANALYST: The picture is both so damning to the Trump people in terms of any ability for them to claim that this was sort of regular process, it was a formal process. Why didn't they just ask for then? They were willing to compromise.
Then the pictures of papers like that strewn on the floor sort of bely any defense that there was carefulness on the Trump part or they were willing to abide.
Just picking up on what Elie was saying earlier on illegal stuff and the claims to Elliot and other lawyers, the national security implications are huge because what it shows, this is just one picture, is that Mar-a-Lago essentially was just sort of an open book to anyone who is willing to come in. Those documents are not secure, not simply for anyone who is randomly passing by but, of course, for foreign intelligence agents or foreigners who might have interest in it.
That's a huge challenge I want to say, and I keep saying to the Biden administration, we tend to focus on Trump in this regard. And the court filing tonight is really clear on that, that the present United States interests in getting these documents and not giving them back to Trump, they make that clear in the filing, that he has no claim to them, no right to them, and even if there is some arguable privilege that they are talking about, that it is overwhelmed by the national security implications of giving anything or any legal injunction to the Trump people, is because right now, that disclosure, that national security information and it's quantity, which we didn't have a good sense of before, is a present challenge for the United States interests and our national security.
We have to remember this is not just a legal case, it has to do with our intelligence agencies. They are trying to figure out what the heck was disclosed, what the heck was Donald Trump doing with them, and what are the ongoing challenges to human intelligence sources, programs, intelligence efforts, and also our allies who are looking at that picture, too, and saying, you know, what did we share with the United States and what could possibly be in those closets and on the floor and in those boxes?
You think we're doing an intelligence assessment? Israel, Britain, France, Australia, you name it, they are doing intelligence estimates as well right now.
LEMON: Okay. So, listen, as we're getting more information here, I just want to say, if you guys go to page 32, it's sort of sums it up at the end. It talks about -- page 32, 29 through 30 talks about how attorney-client privilege, at the bottom of 30, how attorney-client privilege does not compute here. They are saying that it doesn't -- it doesn't make sense and that it should be warned.
But if you go at the top of page 33, it says, talks about all the reasons before, the court should not appoint a special master.
[23:40:00]
But if it does, this is what the Justice Department says, but if it does, the below conditions should apply. For all the above reasons, the court should not appoint a special master.
If the court does decide to do so, as directed by the court, the government proposes the following conditions: First, the court should direct the parties to confer and submit a joint list of proposed candidates by September 7th of 2022, right, Elie?
HONIG: Yup.
LEMON: And then it goes on to list a second, the special master should be required to submit an affidavit concerning any potential basis of disqualification before the court issues an appointment order, blah, blah, blah. And then third, the court should specify the following duties and impose the following limitations, and it goes on. Go ahead, Elie.
HONIG: This is precisely as we anticipated at the top of the show, Don, which is DOJ is arguing you should not appoint a special master, a special master is not necessary judge. But if you do, we need to do this on a very strict, very quick timeline. In fact, under the timeline the DOJ proposes here, essentially, they want this done by the end of September, which is quite quick. I think DOJ has right to request that because if you look at the Michael Cohen case where there was a special master, that took four months for the special master to review the documents.
DOJ obviously does not have the patience for that, and they are not willing to wait for more than a month. I think they are offering a sort of middle ground here if they lose in front of the judge and their other arguments.
LEMON: Okay. Listen, a lot of this is legal (INAUDIBLE), and again, it is just coming in, but I want you guys, everybody, turn to page 10, Evan and Elie, and it says, the government also developed evidence that the government records were likely concealed and removed from the storage room and that efforts were likely taken to obstruct the government's investigation. This included evidence indicating that the boxes formerly in the storage room were not returned prior to council's review.
Elie, you first.
PEREZ: So, that's a big deal.
LEMON: Yes. Stand by, Evan. Elie first.
HONIG: We got hints of this in the affidavit for the search warrant because DOJ said, we told them, keep these documents in a secure location, but now, judge, we need to search all these different locations within the premises.
And here, DOJ is saying, that's exactly what happened. They were concerned about potential obstruction, documents being removed, who knows what was done with them, but this is why one of the three listed crimes was obstruction. I think we have a little more detail on that.
LEMON: Okay. Evan, I want you to go ahead. But Juliette, someone has said -- I can hear something in the background, if you can turn that down, but ago ahead, Evan. You said it's a big deal.
PEREZ: Right. I called attention to page 10 because one of the things we have been wondering is, you know, everyone has been asking, why did the Justice Department -- why did the FBI believe that they had to take this action, this unprecedented action to do a search after months and months and during which the former president says that they have been very, very cooperative, right, according to their account.
In that paragraph that you just read a part of, this included evidence indicating that boxes formerly in the storage room were not returned prior to the council's review.
What this indicates is that there were boxes that were inside the storage room, in the basement of Mar-a-Lago that the Justice Department and the agents had set eyes on and apparently were subsequently removed from that room and then did not come back. So, we previously reported, Don, that they obtained footage, surveillance footage, from that area in Mar-a-Lago. And so, perhaps that is what they are referring to here. But they also said that they have witnesses who told them specifically that there were documents elsewhere in the property despite the fact that they had already signed this declaration saying that there was nothing else here.
Again, goes to the question of obstruction and a question of, was someone trying to hide things from this investigation, and why do they take this extraordinary step.
LEMON: Okay, listen, let's go on and read. This is the next page, at the top, page 11, okay? Against that backdrop, which is what we were just talking about, and relying on the probable cause that the investigation had developed at the time, on August 5, 2022, the government applied to magistrate Judge Reinhart for a search and seizure warrant which cited three statuses, okay? Willful retention of national defense information, concealment or removal of government records, obstruction of federal investigation.
On the same day, Judge Reinhart found that probable cause existed that evidence of each of the crimes would be found at the premises and he authorized the search warrant. Juliette Kayyem?
KAYYEM: Yes. This is -- this is the -- there are two things going on at this part of the filing which are really key. So, the first is that they essentially are saying, we did everything we could until we were at the moment when it became clear, this is important in the chronology, that some materials had been given back to National Archives, but some were held on to.
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That division of sort of what documents Trump is deciding to send and which he is trying to keep is the thing that is sort of lightbulb for a lot of us. What about these documents that he's all of a sudden asserting a privilege and not the others? That's got to make a lot of people nervous in terms of what is, in fact, these are national security documents, a lot of them are highly classified.
So, that's the first part of this, the sort of very, very deliberate process by the DOJ to wait until they realized they could no longer wait to get this group of documents.
The second part of this or how I read this is that the decision to grant the ability for them to come in was not only made by objective magistrate judge, it is wasn't DOJ doing it, but that it was done quickly. In other words, this idea that we had run out of time, that the judge granted it within essentially hours of getting the request. And that, I think, is meant to counter a narrative that has been established by Trump supporters, that if this were a big deal, why did it take so long?
I think what we are finally seeing is DOJ recognized what a big deal it was, was trying to get the Trump people to recognize what a big deal it was, and then had to go to a court to do that, to finally get this information. So that, I think, is -- I think part of what this motion is doing is answering some of the criticisms that you are hearing by Trump supporters.
And at the same time, I have to say, the one line in this that everyone should take to remember is, DOJ specifically says, these are not his documents, period. They are just not his. In some ways, why are we even having this discussion?
These are not Donald Trump's documents. That is why at the very end, they say, if you're going to grant this magistrate, that magistrate has to has security clearance. We got to get this quickly because these are not Donald Trump's documents, these are the United States documents.
LEMON: Sara Murray, I want to bring you in because, listen, if you look at just from what have been reading now from this response of the DOJ, it seems pretty damning for team Trump. I'm sure there will be -- they will give their response to this.
But I am looking at, as I'm going through this and everyone is talking, this is just page 12, and it talks about during an August 8th execution of the search warrant of the premises, the government sees 33 boxes, containers or items of evidence which contained over 100 classified records, including information classified at the highest levels.
And it says, pursuant to the above described search protocols, the government seized 33 items of evidence, mostly boxes here and after -- they will refer to it as seized evidence -- falling within the scope of the attachment of the search warrant because they contain documents with classification markings or would otherwise appear to be government records.
Three classified documents were not located in boxes but rather were located in the desks in the 45 office. What also seized, per the search warrant protocols discussed above, the seized documents included documents that were collectively stored or found together with documents with classification markings. Some of these things were in storage boxes, but others were just, apparently, according to this, sitting on his desk.
MURRAY: Yeah, that's right. And, you know, this is coming after the Trump team had already received the subpoena, after the Trump team had already said, you know, sign this document saying we have handed everything over, pursuant to the subpoena. And then this is what investigators found when they showed up in the search.
If you look on page 13 of this document, you can see the Justice Department pointing out that after June 3rd, they signed this document saying that everything had been handed over, and they point out that the FBI, in a matter of hours, recovered twice as many documents with classification markings as the -- quote -- "diligent search" that the former president's counsel and other representatives said they had conducted.
And so, you see there the Justice Department casting doubt on this notion that there actually was a diligent search for these documents, and that the Trump team was being entirely cooperative and entirely forthcoming about the documents they put there.
They also said that on June 3rd that the representatives for the former president said that there were only documents that were located in the storage room. They went on to find classified documents in the storage room and in the former president's office, as you were just pointing it out.
LEMON: It is notwithstanding the account's representation on June 2022 that materials from the White House were only located in the storage room. Classified documents were found in both the storage room and the former president's office.
Moreover, the search cast serious doubt on the claim that the certification -- claim in the certification and now in the motion that there had been a document -- a diligent search for records responsive to the grand jury subpoena.
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In the storage room alone, FBI agents found 76 documents bearing classification markings. All the classified documents seized in the August 8th search have been segregated from the rest of the seized documents and are being separately maintained and stored in accordance with the appropriate procedures for handling and storing classified information.
The FBI in a matter of hours recovered twice as many documents with classification markings as a diligent search, that the former president's counsel and other representatives had weeks to perform calls into serious question the representations made in the June 3rd certification and cast doubt on the extent of cooperation in this matter, as Sara is pointing out.
That is serious, Phil Mudd.
PHILIP MUDD, CNN COUNTERTERRORISM ANALYST: It is. I'm trying to take a breath here because I misinterpreted this from the start. I guess, after 30 years of national security, I was still naive. I assume that the president's staff had scooped up maybe some relatively modest documents in terms of classification.
But let me give you an interpretation of this, especially if you look at the photographs at the end of the document. A couple of things to say, and I will make this very simple. These are at the highest level of American national security classification, top secret, SCI, which is the classification you see in the photographs, typically refers to intercepted communications.
It is hard to get higher in terms of classification than that. If these are revealed to the public or foreign adversaries, those foreign adversaries will determine how that stuff was intercepted, and they will close down those circuits.
Step two, the president's claim of the classification. If you take that on its face, Don, that means the president thinks it's appropriate to reveal to the planet how we intercepted communications of foreign adversaries.
So, to his lawyers and spokesman, do you believe then, because of the declassification claim, that it is appropriate to reveal these to China, Russia, Iran, et cetera? Yes or no?
Finally, special master. Can you tell me, Don, how difficult it is to look at a legal document versus a document that has a cover page top secret? How difficult would it be for someone to say, some documents might be personal, but we can quickly identify those documents which are national security documents?
That would take us, you and me, you have zero experience in national security, I've got 35 years, that would take us about 20 minutes. The documents are clearly identified, they're sensitive, and the release of them would compromise national security. So, you cannot classify them. I just do not know what to say, Don. I cannot make it simpler than that.
LEMON: This is from page seven, Phil Mudd, I'm going to read to you. It says, further, the FBI agents observed markings reflecting that the documents were subject to sensitive compartments and dissemination controls used to restrict access to material in the interest of national security.
MUDD: So, I find this interesting because the president and his staff are saying something that undercut his case. You're talking about how the documents are classified and what they clearly say.
The president is going to say the FBI came and raided my house, they took some of my personal documents, in addition to what are sensitive documents. And he thinks that is going to be a defense to say that my house was violated. What is he telling us? Documents that are clearly identified as top secret were mixed in with personal documents.
Let me tell you my interpretation. It's not that the FBI inappropriately raided the house, it's that I didn't even bother to look at this stuff to determine what was a dinner invitation, what was attorney-client privilege, and what was a top-secret code word.
He's almost saying to us, I did not care about what was top secret, and I did not care to separate it out and store it properly. This is not that complicated, Don.
LEMON: Yeah. Listen, we are -- this is the breaking news on CNN, the DOJ has responded to Trump team's request for a special master. Our experts are standing by, Elie Honig, Evan Perez, Elliot Williams, Juliette Kayyem, Sara Murray, everyone is here.
I want to bring in now Attorney Elliot Williams. Elliot, as you're going over these documents and you're listening to what the quotes that we have reading and the pages and you're looking at the photographs, what's say you, sir?
WILLIAMS: Oh, my God, there's so much to say, Don. But just to pull out one passage, on page 10 of the document, it says that -- quote -- "concealed and removed from the storage room, and that efforts were likely taken to obstruct the government's investigation."
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Now, that is sort of like the line on the internet, tell me you are accusing me of obstruction of justice without telling me you are accusing me of obstruction of justice. That is sort of laying out the standard for 18 USC 5019.
LEMON: What's the line? What's the line? What's the line on page 10?
WILLIAMS: Concealed and removed from the storage room and that efforts would likely taken to obstruct the government's investigation.
LEMON: Got it.
WILLIAMS: So, it is not -- they are not talking here just about the sort of possession or even mishandling or destruction of documents, it is trying to thwart the efforts of the Justice Department or any other authorities to carry out an investigation. That is a serious --
LEMON: Yeah.
WILLIAMS: It's not a formal charge or anything, but that is strong language and quite significant.
LEMON: Attorney George Conway, why would team Trump want this information out there? Why would they even ask for a special master knowing what the evidence is?
CONWAY: It's insane. They asked for the -- they asked -- basically, they asked for the Justice Department to punch them in the face. And that is what the Justice Department did in this brief.
As Elliot points out, they talked about obstruction. These documents were moved around from room to room. And they stay focused -- they actually showed us the certification. I don't think we've seen that before, the certification from Trump's lawyers that said, hey, there were no more documents, no more classified documents left here, in response to a subpoena.
They gave a red wall of documents back and it turned out, in a certified, that this was -- that's it. That's all the response of documents that we have. And it turned out there were no documents anywhere other than in that storage room. Turned out there were documents in his office, there were documents all over the place. And tons of them.
I mean, they have -- this factual recitation has him dead to rights. There is no question about it. And it explains a lot today about what we are seeing of Donald Trump, true thing out on his social media platform that's failing. He was basically just freaking out all day, and the reason is this evidence. This evidence shows he is guilty as sin. He did this.
LEMON: Evan --
CONWAY: He did these documents. He had the lawyers lie about it. It's incredible.
LEMON: Evan, I understand you want to point something out quickly.
PEREZ: Yeah, Don. Look, the photograph that we keep showing is -- these are documents that are recovered from -- according to this document, from this document today, it says -- the Justice Department says it came from the 45 office. This is the office of the former president inside Mar-a-Lago. And if you zoom in close in, under the heading that says secret SCI, you will see the code that they used to describe the type of information in these documents.
HCIs is human intelligence events. These are the most sensitive things for the CIA, in particular, which has, you know, human spies in very dangerous places, hostile countries, and these peoples' lives would be in danger if someone could, you know, pinpoint who they were.
Again, this is the reason why these documents have these cover sheets, and they have these codes, because they tell everybody, if you do not have the clearance to see this --
LEMON: You should not be looking at it.
PEREZ: -- you should not be looking at it. So, according to this document, page 13, it says that even some of the agents who are doing the search, and again, these guys are cleared at some of the highest levels, even they had to get additional clearance just to be able to review some of these documents.
LEMON: I want to get to our former federal prosecutor, Elie Honig, here. Elie, you're a prosecutor. Where does this go now?
HONIG: Don, we talked before about knowledge and intent.
LEMON: (INAUDIBLE).
HONIG: Yeah. So, the importance and difficulty of establishing that, but I see some really powerful evidence of knowledge and intent in this document. I mean, the photo that we see on our screen, anyone who can read, it's not like it is a small print, bold print up top, secret, SCI, top secret, top secret, top secret. So, anyone who physically saw these documents, took them in, would understand that they were secret, top secret.
Also, a detail from page 12, where DOJ writes that -- they basically said we told him to keep all these documents, secure them in a storage room, but they say three classified documents that were not located in boxes, but rather were located in the desk of the 45 Office --
LEMON: Forty-five office, yeah.
HONIG: -- were also seized. So, they got there somehow who has access to those desks. So, I think there is some really important indicators here that would go towards the establishment of knowledge and intent. In terms of what happens next, Donald Trump's team has to file tomorrow. The judge will have a hearing on Thursday. Maybe at the hearing, maybe after that, but we will know soon whether there will be a special master.
LEMON: As you're looking for documents, I've read legal briefs before, as you've read this document, what do you think?
HONIG: It paints a potent picture of what happened during the search.
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It makes quite clear that there were documents sort of scattered all over Mar-a-Lago, that Donald Trump's team lied.
LEMON: It's a punch in the face?
