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Graham's Appearance before Georgia Grand Jury; Redacted Mar-a- Lago Affidavit; Fears over Safety of Ukraine Nuclear Plant; DeSantis Stumps for Election Deniers; Rep. Fred Upton (R-MI) is Interviewed about the Primaries. Aired 9-9:30a ET

Aired August 19, 2022 - 09:00   ET

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

[09:00:37]

JIM SCIUTTO, CNN ANCHOR: A very good Friday morning to you. I'm Jim Sciutto.

And right now the focus in the criminal probe over the handling of classified records is sharpening on the former president, Donald Trump. A newly unsealed document released on Thursday offered more specifics about the crimes the DOJ is investigating. Those include the phrase "willful retention of national defense information," which suggests officials believe Trump knew he had classified documents and, at least allegedly, intentionally did not return them.

Justice Department prosecutors made the case for secrecy, warning, quote, evidence might be destroyed. Even saying the affidavit would provide a road map as well to the investigation. That does not appear to be resonating with the judge who set in motion the possibility at least of releasing a redacted version of that affidavit, something that could happen as early as next week.

And in a CNN exclusive report, some former Trump allies are calling the president's claims that he had a standing order to declassify documents, quote, I'll paraphrase, BS. CNN reached out to 18 former top administration officials from the Trump years, and all of them told us they never heard of any such order issued during their time in the Trump administration.

But, first, a critical deadline for Fulton County, Georgia, prosecutors, has just expired. They had until seconds ago to respond to Senator Lindsey Graham's motion to block efforts requiring him to testify before the special grand jury there.

CNN correspondent Nick Valencia joins me now from Atlanta.

Nick, Graham has said he thinks his actions in the wake of the 2020 elections were protected. How exactly and what happens now?

NICK VALENCIA, CNN CORRESPONDENT: Well, Graham and his attorneys argue that he was protected by the U.S. Constitution's Speech or Debate Clause and that he was operating in a legislative capacity, not a political one, when he made two calls to Georgia secretary of state's office in the wake of the 2020 election. If you remember, he was then the chairman of the Senate Judiciary Committee, so he says he was on a fact-finding call.

But just listen to how Georgia Secretary of State Brad Raffensperger interpreted that call. He spoke to wolf blitzer in an interview that year.

(BEGIN VIDEO CLIP)

BRAD RAFFENSPERGER (R), GEORGIA SECRETARY OF STATE: Well, he asked if the ballots could be matched back to the voters. And then - I got the sense that it implied that then you could throw those out for -- any - really we look at the counties with the highest frequent error of signatures. So, that's -- that's the impression that I got.

Just an implication that look hard and see how much ballots you can throw out.

(END VIDEO CLIP)

VALENCIA: It was on Monday that a federal judge in Atlanta here denied the motion to quash from Graham's attorney saying that there was considerable areas of inquiry that were not legislative in nature when he made those calls.

On Wednesday, Graham's attorneys tried to fire back, asking a second federal judge for a stay in that decision. If everything goes as planned for the district attorney's office, Graham is supposed to be here on Tuesday to make an appearance before that special purpose grand jury. But, as you mentioned, Jim, we're waiting for that filing to drop here any moment now.

Jim.

SCIUTTO: Nick Valencia, we know you'll be on top of it. Thank you.

Our other top news this morning, the fight to unseal the probable cause affidavit in the FBI's search of President Trump's Florida's home.

CNN's senior crime and justice reporter Katelyn Polantz is following this story.

So, Katelyn, what we know from this document released yesterday seems to show that the investigation is focused on the former president's activities. How exactly?

KATELYN POLANTZ, CNN SENIOR CRIME AND JUSTICE REPORTER: Quite possibly. I mean it is giving us a little bit more information. We got these four documents out of the court unsealed. They don't have a lot of words on them. But whenever there are words that are unsealed, you look at them really closely.

SCIUTTO: Yes.

POLANTZ: We knew before from the search warrant that there were three crimes being investigated, the Espionage Act, obstruction of justice, the criminal mishandling of records. One of the pieces here is exactly what part of the Espionage Act is under investigation. And the words that the Justice Department used to describe that offense that they have probable cause to do this search for was willful retention of national defense information. So, the reason that we believe that that could mean Donald Trump himself under investigation or as a subject here is because it implies there was someone who had access to national defense information, and then chose to keep it. Certainly sounds quite like Trump.

[09:05:01]

We don't have confirmation that he would be the target of investigation. No one has been charged here. But that is a little bit more information we can glean.

And then the other thing that happened in court yesterday in these newly unsealed records is that the Justice Department has made very clear they do have a -- quite a fear of obstruction around this, that they wanted to make sure that evidence wasn't destroyed. That's one of the reasons they kept this search quiet beforehand. And so we learned that from this.

We also heard that quite a bit in court as the Justice Department continues to fight to keep the affidavit, that narrative, that longer discussion, detailed explanation for the investigation, under seal, that they are very concerned about the witnesses here that they've already spoken to and potentially in the future. So, we'll see what happens with that?

SCIUTTO: It may be that you get it out, but it's so redacted. A lot of that information is. We've all seen those highly blacked out documents before when they've been redacted.

Katelyn Polantz, thanks so much.

All right, so the law. Joining me now to discuss, Elie Honig, former assistant U.S. attorney for the Southern District of New York, and former FBI agent David Shapiro.

Good to have you both on.

Elie, I want to begin with you.

When you look at what was released in these documents yesterday, I want to ask you particularly about the language "willful retention of national defense information." And I have a very quick follow.

But what would be the significance of that and what would you need to do to prove that?

ELIE HONIG, CNN SENIOR LEGAL ANALYST: Yes, Jim, well, that's one subsection of the Espionage Act and it's really important that we know now where prosecutors are focused. The key words here are "willful retention." Willful just means knowingly and with some awareness that what you're doing is against the law. Retention, of course, means holding on to the documents. And so I think the natural question is, well, who would have been in position to make that decision? I think the first person you think of there is Donald Trump. He's the

one who was in possession of those documents in the White House. He's the one who owns and controls Mar-a-Lago.

So, important to note, the papers don't specify Donald Trump in particular. You usually, as a prosecutor, don't specify a person. But we can sort of try to figure out what they mean by the words they did give us.

SCIUTTO: Quick follow for you, Elie. National defense information, does it have to be classified? In other words, let's say they take the argument that the president made, does it not have to be?

HONIG: No, it does not have to be classified. The legal standard says information that if released might be harmful to the national security interests.

SCIUTTO: Wow, that's notable. OK, fair enough. Moving on.

David Shapiro, in the filings, prosecutors argued they needed to keep secret their search warrant paperwork before the search last Monday because of concerns about evidence being destroyed. You served in the FBI. You know, the FBI doesn't search anyone's home without, you know, legal backing to do so, a warrant. And particularly a former president's home.

In your experience, would that have to be a genuine fear, right, of the investigating agencies to go in there and say, hey, man, we're worried this stuff might be shredded or something, destroyed in some way?

DAVID SHAPIRO, FORMER FBI AGENT: First, Jim Sciutto, thank you for having me this morning.

And, yes, it would be a very strong fear, motivating the actions that law enforcement took in this case. You need to look at the history and discover that there were efforts made to have Mr. Trump turn over the documents voluntarily and there's been some dissertation regarding that. And, clearly, when that was not promptly complied with, the fear that evidence would be destroyed, could be destroyed, is great.

SCIUTTO: Yes.

Elie Honig, so you have three laws under which the DOJ is at least investigating, doesn't mean they indict here, Espionage Act, obstruction and willful retention. Which is -- they don't have to charge under all of them. They could pick one or none, frankly. But which of those is -- would have the lowest standard of evidence required to indict?

HONIG: Yes, and, Jim, I should also add, if they find other crimes not listed there, you can still charge them.

SCIUTTO: Yes.

HONIG: I think the simplest one to get to is mishandling of defense information. I mean it's sort of right there on the - on the face of it. You don't have to show some intent to obstruct an investigation. You don't even have to necessarily show that here's some -- could be some broader, harmful effect to national security. You just have to show that, a, these are federal government documents and, b, you wrongly possessed or took or concealed them. It's the most straightforward of the crimes and prosecutors are always looking for, what's the easiest charge to make here.

SCIUTTO: And notable they don't have to be classified.

OK, as you know, David Shapiro, a lot of the concern about this has been the deliberate targeting of FBI agents involved in this search, including the doxing (ph) of them, exposing of their personal documents, information and so on.

So, the former secretary of state under Trump, Mike Pompeo, was asked about threats made to the FBI. I want to play for you what he said and get your reaction.

Have a listen.

(BEGIN VIDEO CLIP)

MIKE POMPEO, FORMER SECRETARY OF STATE: One could easily, easily take on the FBI leadership without maligning in any way those folks who are out there trying to keep our streets safe and keep us safe from crime all across the country.

(END VIDEO CLIP)

[09:10:04]

SCIUTTO: Now, with the proviso that it's already agents who are being targeted here, but is that a distinction that's a real one, do you think, that you could say, just go after the leadership, the agency, and keep the agents safe?

SHAPIRO: Well, I agree with Mr. Pompeo. Normally, if you want to impair the credibility of the institution, you need to go after its leadership. The street agents executing these search warrants may or may not have some sort of bias pro or against Mr. Trump. But, normally, they're not driving the bus here, they're just going out and obeying orders.

SCIUTTO: Right. But is that happening now given that you have far broader attacks coming from some on the right against the agents themselves included?

SHAPIRO: Yes, well, this is an important issue because I think you have to tie it into the prior FBI and actions against Mr. Trump that he refers to as Russia-gate. Mr. Trump's goal, I think, is to sew doubt, and not necessarily through the courts, but through social media as well. And you take what you can. And if you can impair any one FBI agent's credibility, including linking him or her to the so- called Russia-gate inquiry that was criticized by Michael Horowitz, the inspector general, then I think Mr. Trump gains a certain amount of traction.

SCIUTTO: Elie Honig, before we go, on this question of whether Trump had some sort of standing order to declassify - and, by the way, we know that there's a process to do so, an inner agency process and so on, 18 former top Trump officials have told CNN that this is just not true. One of them using the term BS to describe it. How is that important to the investigation?

HONIG: Well, Jim, there's two distinct questions here. First of all, legally and constitutionally, the president, whoever the president is, has extraordinarily broad, some even argue unlimited powers to declassify. That's question one.

SCIUTTO: Yes.

HONIG: But question two, and really the operative question here is, did Donald Trump do that Did he exercise those powers? We have 18 people now who logically would have known if there's such an order. It's almost inconceivable that there would have been such an order and all 18 of these folks wouldn't have heard of it.

SCIUTTO: Yes.

Elie Honig, David Shapiro, good to have you both on this morning.

HONIG: Thanks, Jim.

SHAPIRO: Thank you, Jim Sciutto.

SCIUTTO: Up next, genuine fears of a nuclear disaster in Ukraine as shelling and other fighting continues around the Zaporizhzhia nuclear power plant. It's the largest in Europe. We're going to take you there live to see what the danger is.

Plus, Florida's governor, Ron DeSantis, is hitting the road to campaign for two prominent election deniers outside his state. What that tells us about the future of the Republican Party. We're going to speak to a member of the party.

And, is there still any hope for bipartisanship in Washington? I'll ask Republican Congressman Fred Upton about that as well. He broke with most of his party to vote in favor of things such as infrastructure and gun reform that did have bipartisan support.

(COMMERCIAL BREAK)

[09:17:23]

SCIUTTO: New video shows Russian military vehicles inside what is Europe's largest nuclear power plant in Ukraine. CNN geolocated and confirmed the authenticity of the video, seen here, which is inside the turbine hall of the plant. It is not clear, however, when it was shot.

Turkey's president is warning that shelling at the Zaporizhzhia plant could lead to a new Chernobyl. He met with Ukraine's president and the U.N. chief, where they all demanded a demilitarized area around that plant. So far, Russian officials have rejected that.

CNN's senior international correspondent Sam Kiley joins us now live from Zaporizhzhia.

So, Sam, as you're aware, Ukraine and Russia are both blaming each other here for the escalation. You're there. You've been talking to people. What are the facts about who or which forces are actually endangering the plant?

SAM KILEY, CNN SENIOR INTERNATIONAL CORRESPONDENT: Well, here are the facts. Back in March, March the 4th, the power station was captured by Ukraine. And among the weapons used in that capture was the main battle tank. The Ukrainians were accused back - sorry, the Russians back then were using main battle tanks. They fired some heavy weapons in that location, causing the first round of deep concern about the future of this nuclear power station. They've been in there ever since. Periodic rasing (ph) intention (ph).

Recently, there has been some more shooting of rockets, in particularly coming out of areas very close, if not inside the nuclear power station. And the Russians have now, as they so frequently do, Jim, come up with a counternarrative, which is, it's not them that's firing, it's the Ukrainians, and indeed the Ukrainians according to the Russians are firing into the location risking a nuclear catastrophe.

There's nothing in it for the Ukrainians to do that. It's a Ukrainian power station supplying power to Ukraine with Ukrainians still working in there, and it would be Ukraine that would suffer most, excuse me, from any kind of fallout.

But this is typical, as you know very well, Jim, having been here yourself, of the Russian narrative. If you can stir enough -- mess up at the bottom of the soup, you can sew doubt and disinformation all over the place. I think really that, at the moment, is the Russian mission when it comes to this issue of the power station.

SCIUTTO: Yes, that's a classic Russian disinformation plan, muddy the waters.

You've spoken to some of the people living there in and around to what is Europe's largest nuclear power plant. What are they telling you?

KILEY: Well, they are terrified. We were in a small village directly opposite the nuclear power station, on the flight line for rockets to the largest city of Vanikerpoll (ph), which has been hit many, many times over the last few weeks with at least 13 people killed by rockets that have been fired out of that location.

[09:20:13]

And you can pretty much see where rockets have been fired from when it impacts into the ground because it comes -- it lands at the sort of trajectory that points in the direction from whence it came.

We saw two rocket strikes in this village that pointed straight back to the nuclear power station. Local people, therefore, afraid of being hit and killed by rockets. Nobody was mercifully on that occasion. But above all they are worried about -- even a localized level of contamination if the disused fuel rods, for example, they're under relatively low level of protection were to get hit, that would create contamination in the area that would be catastrophic for anybody living nearby. And then there's a steady escalation up to total meltdown, of course,

which would be a global catastrophe.

But all of this is very problematic, both for the belligerence on both sides, but also for the international community because no nuclear power station has ever been at the center of right slap bang on the front line in a conflict. And that is exactly where this power station is, Jim.

SCIUTTO: Yes, all it takes is one stray munition, conceivably.

Sam Kiley, good to have you there and please keep yourself and your team safe.

Coming up next, I'm going to speak with one of the ten Republican congress men and women who voted to impeach former President Trump. What he makes of the growing number of election deniers who are winning primaries now in his party.

(COMMERCIAL BREAK)

[09:26:22]

SCIUTTO: Today, Florida Governor Ron DeSantis is hitting the campaign trail out of his state for two Republican candidates, both of whom are election deniers, in Pennsylvania and Ohio. His first stop, a fundraiser for Doug Mastriano, the GOP candidate for governor in Pennsylvania.

CNN reporter Isaac Dovere joins me now.

Isaac, so he's going to do that. He's going to be appearing with Ohio's Republican Senate nominee JD Vance. Why is he allowing himself -- aligning himself so closely with those deniers?

EDWARD-ISAAC DOVERE, CNN SENIOR REPORTER: Well, look, there's a tradition in American politics of potential future presidential candidates using the midterms as a way to test themselves out and show off around the country. That seems to be what Ron DeSantis is doing there. He is up for re-election himself, but he's in Pennsylvania and Ohio.

With these candidates, Mastriano especially is a far-right candidate, Christian nationalist, in a lot of ways out of the Republican mainstream but was one of the lead people in Pennsylvania pushing back on certifying the election for Joe Biden. JD Vance, a candidate who was -- started out before he was candidate as an anti-Trump guy, then embraced Trump, got endorsed by Trump in the primary, and that helped him win.

SCIUTTO: Yes.

DOVERE: DeSantis is hoping that he can step in here and say, look, this is the party that I want to put my stamp on and these aren't candidates only who Trump won -- helped win the primary, but I'm helping win the general elections. We'll see if that happens.

SCIUTTO: OK. Big picture. There is some concern within the Republican Party, by the way, and among those people, Mitch McConnell, that these candidates, while popular in a primary, are not the strongest, might even be weak candidates in the general election in the fall.

Have a listen to Mitch McConnell just in the last 24 hours.

(BEGIN VIDEO CLIP)

SEN. MITCH MCCONNELL (R-KY): I think the - there's a -- probably a greater likelihood the House flips than the Senate. Senate races are just different. They're statewide. Candidate quality has a lot to do with the outcome.

(END VIDEO CLIP)

SCIUTTO: Candidate quality. Is that a dig at some of the Trump- endorsed candidates?

DOVERE: Well, look, some of the candidates who are running are people that Mitch McConnell did not want.

SCIUTTO: Yes.

DOVERE: Herschel Walker, running in Georgia, is a Republican candidate that Trump wanted and Mitch McConnell specifically did not want. Trump won that fight. Walker is the candidate. He is behind in the polls from Senator Raphael Warnock.

In Ohio, Vance has been struggling a lot. Just yesterday, as McConnell was making those comments, the super PAC aligned with him invested over $30 million into ads going into the fall. That's a lot of money going into Ohio, a state that Donald Trump won by nine points just two years ago.

SCIUTTO: Yes.

DOVERE: And so what you see around the country is, look, it's before Labor Day. A lot of people are still tuning in, figuring out, a lot of the advertising hasn't started.

SCIUTTO: Yes.

DOVERE: We'll see where this goes. But Republicans in Senate races not seeing the kinds of leads that they would want, especially when you see President Biden's approval ratings still, even with everything that's happened, that Democrats are very excited about in the last couple weeks, in the 30s.

SCIUTTO: Isaac Dovere, a lots going to happen between now and those midterms. Thanks so much.

DOVERE: Indeed.

SCIUTTO: Joining me now to discuss, not just the upcoming midterms, but a whole host of issue, Republican Congressman from Michigan, Fred Upton. He's also on the Energy and Commerce Committee.

Good to have you on, sir. Thanks for taking the time.

REP. FRED UPTON (R-MI): Absolutely, Jim. Thanks for inviting me.

SCIUTTO: You have been a very public critic of some of the directions that the Republican Party has taken, particularly on denying the results of the 2020 election. I wonder, having seen this latest round of Republican primaries in which many, though not all, of Trump- endorsed candidates won, and many of them election deniers, does that show you that the pro-Trump wing of the Republican Party is winning for now?

[09:30:06]

UPTON: Well, they're winning for now.