Return to Transcripts main page

CNN Newsroom

DOJ Opposes Releasing Affidavit Details for Mar-a-Lago Search Warrant; First Lady Jill Biden Tests Positive for COVID-19; Rep. Liz Cheney (R-WY) Faces Off with Trump-Backed Hageman in Wyoming GOP Primary Today. Aired 10-10:30a ET

Aired August 16, 2022 - 10:00   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

[10:00:01]

BIANNA GOLODRYGA, CNN ANCHOR: But the Justice Department is fighting the release of the affidavit that lays out the case for the search, pointing to highly sensitive information about witnesses interviewed by the government.

JIM SCIUTTO, CNN ANCHOR: We are also learning new details about the attorney general's thinking before the FBI came knocking on Trump's door. According to The Wall Street Journal, Attorney General Merrick Garland deliberated for weeks before approving that warrant application.

A big question now, will he pursue criminal charges against the former president?

Plus, another Trump ally is under legal pressure. Rudy Giuliani speaking out after learning prosecutors have named him as a target in their special grand jury investigation in Georgia. Details on that development in just a moment. There are lots of them.

Let's begin with CNN Senior Crime and Justice Reporter Katelyn Polantz in Washington. So, first, Katelyn, walk us through the DOJ's position on what would be a rare step of making public an affidavit for a search warrant at this stage.

KATELYN POLANTZ, CNN SENIOR CRIME AND JUSTICE REPORTER: Right. Well, Jim and Bianna, it would be rare for the Justice Department to make a search warrant affidavit public, but we are at a point where there is a push for transparency, not just from people on Capitol Hill but also from the media, including CNN.

In court, the Justice Department has made a set of arguments and really a couple little details about this investigation that they're saying should keep this affidavit secret, confidential, only for their eyes and for the judge's eyes.

In their filing yesterday, they wrote, if disclosed, the affidavit would serve as a roadmap to the government's ongoing investigation, providing specific details about its direction and likely course in a manner that is highly likely to compromise future investigative steps. We know too that they have disclosed in this filing yesterday that they are using witnesses already that they have spoken with, they're using a grand jury in this investigation, and that they also are looking for -- to make sure there aren't future witnesses whose information that they wouldn't want to share, that those people are not chilled from allowing this investigation to go forward.

I should say just a few minutes ago in the docket, in this federal court in Florida, the judge has set a hearing for Thursday to talk about whether or not this affidavit should stay under seal. We'll have to see exactly what the judge says there and if the Justice Department has more that they want to say. And I think I forgot to mention the most important piece of this, that the Justice Department included was this -- them saying that there was the implication of highly classified materials in this ongoing investigation.

GOLODRYGA: Yes, which does raise the question of whether or not if the attorney general was really mulling over this for weeks, whether he had come to this question himself as to people from both parties pushing him to release this affidavit, clearly knowing that it would get to this really contentious issue.

We're also, Katelyn, learning that a former Trump White House lawyer, Eric Herschmann, who had pushed back on efforts to overturn the 2020 election, has now been subpoenaed by a federal grand jury. What is the latest on that front?

POLANTZ: That's right. So, Eric Herschmann, he was an adviser to Donald Trump at the end of the Trump presidency, he also is a lawyer who was in the White House, and he has received a subpoena from a federal grand jury. We were able to confirm that yesterday.

He was one of those people that was in the White House pushing back on some of these dubious legal theories that outside advisers were pushing with Trump, John Eastman particularly. Here's what Herschmann had to say captured on film by the House select committee in their investigation, when they sat him down for testimony. Here's Herschmann then.

(BEGIN VIDEO CLIP)

ERIC HERSCHMANN, FORMER TRUMP WHITE HOUSE LAWYER: I said, I don't want to hear any other f'ing words coming out of your mouth no matter what other than orderly transition. Repeat those words to me.

UNIDENTIFIED MALE: What did he say?

HERSCHMANN: And, 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 f'ing criminal defense lawyer, you're going to need it. And I hung up on him.

(END VIDEO CLIP)

POLANTZ: So, this subpoena does come in a very aggressive investigation by the Justice Department separate from Mar-a-Lago. It's this January 6th investigation, and it follows subpoenas from the grand jury that also went to top advisers in the White House Counsel's Office and from the vice president's office in the Trump administration.

GOLODRYGA: Another indication this investigation is ongoing and continues. Katelyn Polantz, thank you.

Well, an attorney for Rudy Giuliani says that his client has been told by prosecutors in Georgia that he is now a target of a criminal investigation into election interference.

SCIUTTO: CNN's Nick Valencia joins us now from Atlanta, Georgia. Nick, he is set to appear before that special grand jury in Georgia tomorrow. Will he be there?

NICK VALENCIA, CNN CORRESPONDENT: Well, that is the outstanding question at the moment. We did check in with his Atlanta-based counsel, Jim, to see if he was en route but we have not yet heard back.

[10:05:02]

He had tried to file a continuance to delay his testimony before the special purpose grand jury, but a judge ordered him to appear here tomorrow, and he will be doing so as a target of Fani Willis' criminal investigation.

This is a significant development. This marks the first time that a member of the former president's inner circle has been named as a target of this criminal investigation and we should remind our viewers that it was Giuliani in the wake of the 2020 election that spoke three times before lawmakers here to spread conspiracy theories and false voter election fraud claims, claims that have since been disproven. And it was last night that Rudy Giuliani and his first time reacting to this news being a target in this criminal investigation and this is what he had to say.

(BEGIN VIDEO CLIP)

RUDY GIULIANI, FORMER TRUMP LAWYER: It's 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 privilege 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 are defending their clients, we're starting to live in a fascist state.

(END VIDEO CLIP)

VALENCIA: Will he invoke his Fifth Amendment right? That's a big question that remains unanswered. We know that his attorney, though, Giuliani's attorney says that while he's expected to appear tomorrow, he can't promise about how responsive his client will be. Jim, Bianna?

SCIUTTO: Nick Valencia, thank you so much. And joining us now to discuss all the law behind this, Elie Honig, former assistant U.S. attorney for the Southern District of New York.

Elie, to hear one of Trump's own White House lawyers there, Herschmann, say -- recount how, in the midst of all this, he was telling someone, you need a criminal lawyer because he saw criminal -- potential criminal liability here in the efforts to overturn the election. He's been subpoenaed by the DOJ. That sounds like fairly remarkable evidence in their investigation. From a lawyer's perspective, is that right?

ELIE HONIG, CNN SENIOR LEGAL ANALYST: Well, Jim, it is important because if we think back to January 6th and the investigation, which is still going on, by the way, it's easy to lose track of that with all the focus on Mar-a-Lago, but one of the key issues here is this plan that this lawyer who Eric Herschmann was talking to, John Eastman, he came up with this plan that we can get -- we can interfere with the counting of the electoral votes by Mike Pence. We can convince Mike Pence that, as vice president, he has the authority to just throw whatever electoral votes he doesn't want out the window. That is a ridiculous legal theory and according to Eric Herschmann, he told John Eastman straight up, that is potentially illegal. You need to get yourself a criminal defense attorney.

And that's ultimately going to go to the issue of intent. Did John Eastman, did others know that this plan was not just bad legal advice but crossed the line into illegality?

GOLODRYGA: Let me turn to the other big issue this morning and big headline, because there is a lot that we're covering here, and that's the DOJ's move to keep that affidavit that led to the search warrant of the president's -- the former president's home at Mar-a-Lago under seal.

Now, you have described releasing this, unsealing it as a game changer. How so?

HONIG: Well, Bianna, it is completely unusual to have a document like this unsealed at this early point in the case. If this comes out, we are going to see chapter and verse exactly how DOJ prosecutors established probable cause to a judge. This is going to be a long written narrative document, it is going to lay out DOJ's evidence in a way that DOJ, as a rule, never reveals in the early stages or during an ongoing investigation.

As a prosecutor, I absolutely would have taken the same position that DOJ has taken now, which is to reveal this will interfere with our investigation in irreparable ways and, by the way, it is not fair to the rights of the accused or the people who are being investigated for us to issue a detailed statement of why we think they may be guilty, even though we have not charged them yet.

SCIUTTO: Elie, other, of course, development, there are lots for folks at home to keep track of, and this is Rudy Giuliani and his appearance in the Georgia investigation here. RICOH is a possible law that prosecutors may look to apply here, racketeering in effect and ironically what Giuliani himself used to prosecute members of the mob. Tell us what the standard would be for them to indict and establish guilt.

HONIG: So, racketeering generally means that a person is part of what we call a criminal enterprise. It can be something like a drug trafficking organization. It could be a mafia family. But in this case, it would probably be some variation of a political organization likely around Donald Trump or around that effort to upset the election.

Now, you also have to show that that person knew of or was engaged in what we call a pattern of racketeering activity, meaning two or more interrelated criminal acts. So, in a way, it can be a very powerful tool for prosecutors, like you said, Rudy Giuliani really, in fairness, sort of pioneered the use of it back in the '80s at the Southern District of New York. I tried my best to do it several decades later, sometimes with success.

[10:10:01]

So, it can be a powerful tool for prosecutors.

It is also an additional lift, though, for prosecutors. You have to prove more than you would in a normal case. But, yes, I think that kind of charge is reading the tea leaves could be in play down in Georgia.

GOLODRYGA: Now, you have said that you think it is unlikely that Giuliani would flip, reminding our viewers that Giuliani said that he cannot get on an airplane to make it to that courtroom and the judge said whether by train, plane or automobile, you need to show up here tomorrow. So, we're still waiting to find out how exactly he will appear. But assuming he does, we already know from his attorney that he's going to cite attorney/client privilege, and otherwise likely to plead the Fifth. Are those some of the grounds as to why you think he will not flip on the president?

HONIG: Well, sure, Bianna. I do think it is very unlikely Rudy Giuliani gives any substantive testimony. And, by the way, if he takes the fifth, he should. I mean, that's very much his constitutional right to do that. He's been told he's a target. It is actually not proper prosecutorial practice to tell someone they're a target and to subpoena them. You're supposed to respect their status as a target and not invite them in to incriminate themselves.

That said, I am not looking forward to any kind of day where Rudy Giuliani takes the stand testifies against Donald Trump. I don't think that's unlikely at all for two reasons. It takes two to cooperate. First of all, Rudy Giuliani has to make this decision I want to accept responsibility for what I have done, I want to plead guilty and I am going to testify against Donald Trump and others. But also I don't know if Rudy is going to make that decision but prosecutors have to be on board with enlisting Rudy. And you cannot sign someone up as a cooperating witness unless you are entirely convinced they have come clean, they are telling you everything and you're going to put that person on the stand, your law is in with them now and you're asking the jury to believe that person.

I have cooperated with some really bad people, people who have done worse things than Rudy Giuliani has ever done, but I've never put someone on the stand who has the kind of history of just outright lying that Rudy Giuliani has. I can't see a prosecutor saying, jury, I need you to believe Rudy Giuliani.

GOLODRYGA: Elie, you've covered a lot for us here, breaking all of this down. Thank you so much. You've made it much clearer for us and viewers at home. We appreciate it.

SCIUTTO: No question.

Also new this morning, there is a new case of coronavirus in the White House, this time the first lady, Dr. Jill Biden.

CNN's Arlette Saenz is following this story. First off, Arlette, how is the first lady feeling?

ARLETTE SAENZ, CNN WHITE HOUSE CORRESPONDENT: Well, Bianna and Jim, First Lady Jill Biden is experiencing mild symptoms after testing positive for COVID-19. That's according to her communications director, Elizabeth Alexander.

The first lady started experiencing these symptoms last evening. And after testing negative on an antigen test, she tested positive on a PCR test.

Now, in a statement released by Elizabeth Alexander, she wrote, quote, that the first lady is double vaccinated, twice boosted and only experiencing mild symptoms. She has been prescribed a course of Paxlovid and following CDC guidance will isolate from others for at least five days.

Now, the first lady and President Biden has been spending the past week since last Tuesday here at a private residence a short ways away from where we are in Kiawah Island, South Carolina. The first lady will remain here in South Carolina until she receives two negative -- consecutive negative tests, according to her communications director.

She had been slated to travel to Florida a bit later this week, so that will up end her travel plans there. The first lady has just been seen on just a very few occasions while here vacationing. She was out for a bike ride with her husband on Sunday and was also spotted shopping at one of the town centers nearby.

Now, as for the president, he is slated to travel back to the White House today where he'll be signing that Inflation Reduction Act. White House Press Secretary Karine Jean-Pierre says that he has tested negative on an antigen test but that he will be wearing masks indoors for the next ten days since he was a close contact of the first lady.

SCIUTTO: We wish her a swift recovery. Arlette Saenz with the president and the first lady on vacation, thanks so much

GOLODRYGA: And still to come, as Arlette mentioned, in a few hours, President Biden will sign one of his big legislative wins into law. Will this give Democrats an edge in the midterms?

Plus, Wyoming voters will determine today the political fate of Liz Cheney. Will her vote to impeach Donald Trump get her ousted from Congress?

SCIUTTO: And the Taliban has now been in charge of Afghanistan for a full year. Ahead this hour, I will speak with an Afghan journalist who escaped the country last year to ask how the nation has changed since then.

(COMMERCIAL BREAK)

[10:15:00]

GOLODRYGA: Well, right now, polls are open in Wyoming, and we are keeping a close eye on the primary race for Republican Congresswoman Liz Cheney's House seat. Cheney is facing an uphill battle amid fierce opposition from within her own party because of her criticism of former President Donald Trump and vote to impeach him.

Cheney is going up against several Republican challengers, including Trump-endorsed attorney Harriet Hageman. That's prompting some life- long Democrats to switch parties.

(BEGIN VIDEO CLIP)

UNIDENTIFIED FEMALE: I've been a Democrat almost all my life. And with Liz Cheney, I decided we're going to get a Republican in Wyoming, I'd rather have her than Hageman.

I don't agree with any of her politics, none. But what I've seen her do on the committee I think is very rewarding. I think she's done a hell of a good job.

(END VIDEO CLIP)

GOLODRYGA: Well, joining me now to talk about all of this is CNN Senior Commentator and former Ohio Governor John Kasich. Governor, great to have you on.

As I repeatedly say, it is still stunning to hear Democrats coming to the defense, to possibly help out Liz Cheney. Obviously, we do expect a major loss for her.

Once that final number comes in tonight or whenever we do know the outcome of that race, if she does, in fact, lose, what does that tell you about the state of the Republican Party and Donald Trump's hold over it?

[10:20:07]

JOHN KASICH, CNN SENIOR COMMENTATOR: Well, it tells you -- look, I've experienced some of it myself. When I would not support Trump, would not go to the convention, I had a lot of Democrats that were praising me, a lot of Republicans very angry. And to some degree, it remains even today. But one has to do what one feels one has to do. I mean, she felt very strongly that she needed to vote for impeachment. She feels very strongly that this man should not be in the Oval Office ever again. And, you know, Bianna, in politics, if you're driven by something that is rational, something that makes sense, if you're driven that way, you're prepared to live with the results.

But even if she loses this election, which she is expected to do, she's not just going to fade away. There is plenty of opportunities for Liz Cheney. But I'll bet at the end of the day she wouldn't trade what she has done for all the elections in the world because she is -- it is her conscience that's driving her. And, look, in politics, then you're out of it. What are you remembered for? There are so many people in politics you ask them what they did, they don't have a very good answer. We'll always remember what she's done and she's inspired a lot of people.

GOLODRYGA: She has said as much. Let's play a clip from her earlier this summer as co-chairing the investigation committee into the January 6th attack.

(BEGIN VIDEO CLIP)

REP. LIZ CHENEY (R-WY): In our country, we don't swear an oath to an individual or a political party. We take our oath to defend the United States' Constitution and that oath must mean something. Tonight, I say this to my Republican colleagues who are defending the indefensible, there will come a day when Donald Trump is gone but your dishonor will remain.

(END VIDEO CLIP)

GOLODRYGA: So, that's how she feels and that is clearly how you feel. But what stood out to me was something I read recently in Mark Leibowitz's new book, Thank You for Your Servitude, when he asked the legacy questions of people like Senator Lindsey Graham and of Kevin McCarthy, and here is how they responded. They said they didn't care about their legacy. They're very flippant about that question. They said their legacy would be losing.

And then McCarthy referenced Jeff Flake, a vocal critic of former President Trump who retired in 2017, and he said, no one is putting up any statues to Flake at the Capitol, and muttered something similar about Mark Sanford, the former House Republican and governor of South Carolina.

So, how do you respond to that mindset?

KASICH: I think it is so shallow. Look, Bianna, when you -- whenever it is, whether you're in news, whether you're in business, whether you're in politics, whether you're in sports, when you follow your conscience and you stand, and that means you check with other people to say, am I off target, she is clearly not off target. And you got to be prepared to live with the results. But you would be very proud of yourself. I'm very proud of the stuff that I've done in my political career. I couldn't feel any better, and I hope it has been a good role model and example for other people. That's what she's doing. And the same thing with Jeff Flake. He's now ambassador to Turkey.

Look, of course, they're not going to build a monument to anybody. But that's not what you're doing this for. You're not doing it to build a monument. You're doing it to be true to yourself and, in some sense, true to a higher power that you believe at the end will ask you what did you do with the gifts I gave you.

GOLODRYGA: When you say that even a loss would likely lead to just another t chapter for Liz Cheney, are you talking about presidential aspirations? Do you think that she should run for president?

KASICH: I don't know about that. But at some point, the bulk of Republicans are going to break out of this coma that they have been in and I don't know what form that's going to take. I mean, she'll have a speaking career, she'll be able to travel all over the country. Her voice will not be silenced. And I think that's what she probably wants more than anything else is for her voice to be heard.

In terms of her running for president, I mean, anything is a possibility. It is tough now. That lane is not really very wide in terms of people who have opposed Trump that want to be president. But, you know what, things -- the great thing about politics, like the great things about life, is what you think is certain today is certainly not certain tomorrow. So, I would not count her out. She's done a terrific job on that committee. She's held her -- she's performed so well. Her statements have been terrific. I'm not worried about her future. She's going to have a great one.

GOLODRYGA: John Kasich, always great to see you. Enjoy the rest of your summer, thank you.

KASICH: Thank you.

SCIUTTO: Was there a plot to breach voting machines in Michigan in the 2020 election? Up next, Michigan secretary of state, she'll be here live to answer questions on that and much more.

(COMMERCIAL BREAK)

[10:25:00]

SCIUTTO: This morning, stunning new details about the efforts by the former president's allies to take possession of voting data and voting machines. According to The Washington Post, Trump allied attorneys led, quote, a secretive multistate effort to access voting equipment after the former president's loss in the 2020 election. Those states include at least three battleground states, Georgia, Nevada and Michigan.

GOLODRYGA: Now, records obtained by the newspaper show Attorney Sidney Powell sent a forensic data firm to Michigan to copy a rural county's election data. [10:30:03]

She later helped arrange for the firm to do the same in the Detroit area.