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Redacted Mar-a-Lago Affidavit Released. Aired 1-1:30p ET

Aired August 26, 2022 - 13:00   ET

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

[13:00:00]

BIANNA GOLODRYGA, CNN HOST: Hello, everyone. I'm Bianna Golodryga in New York. Ana Cabrera is off.

Redacted, but revealing. We are getting more details as we pore through the redacted version of the Justice Department affidavit behind the FBI's Mar-a-Lago search.

Here it is right here, the 38 page document providing a new glimpse of the scale of this investigation.

Let's go straight to CNN's Evan Perez and Katelyn Polantz.

Evan, let's begin with you.

We can't stress enough how unprecedented this is, releasing parts of an affidavit at this point in an investigation. Walk us through some of the key revelations in here.

EVAN PEREZ, CNN SENIOR JUSTICE CORRESPONDENT: Well, the reason why the FBI went to Mar-a-Lago just over two weeks ago to do this unusual, this highly unprecedented search was because, after reviewing the 15 boxes that were retrieved earlier this year from Mar-a-Lago and sent back to the National Archives, they found 184 unique documents bearing classification markings.

That's a lot of documents that were being stored in an unsecured environment in the basement at the former president's beach house in Palm Beach. That's the bottom line of why the FBI was so concerned, why the National Archives were so concerned, and why this became a criminal investigation in February of this year.

And, obviously, this is now an investigation that is ongoing. And that's the reason why there is so much information that is still redacted. About half of the pages in this 38 page affidavit document are still redacted, because the FBI says it has concern about the safety of witnesses. They have concern about the safety of some of the law enforcement agents who are working this investigation.

We will go through just a breakdown of the 184 documents; 67 are marked confidential, 92 documents are marked as secret and 25 documents are marked as top secret.

And this is all on page 17 of this affidavit, for those who want to follow along. The remarkable thing about this, Bianna, is that you see the description of the type of documents that we're talking about. And the thing that stands out is these documents that the FBI says were marked as HCS. These are human sources.

These are these are the types of documents that are typically controlled by the CIA, because they're talking about or there's information that could help identify human spies that provided this kind of information. This is the kind of sensitive information that is highly, highly guarded by the U.S. government.

And the question I think everybody's asking is, how did this end up in these boxes, intermingled with other things that ended up in the basement of the beach house of the former president?

GOLODRYGA: Yes. And a lot of these classified documents confirmed the reporting that led up to this redacted affidavit here that we have reported ourselves. The key question is -- you're right -- how did they leave the White House and get Mar-a-Lago?

Katelyn, there's also a key section relating to probable cause in here. Explain that.

KATELYN POLANTZ, CNN SENIOR CRIME AND JUSTICE REPORTER: Right.

Well, Bianna, whenever we were seeking this affidavit, right, during this ongoing investigation, there was this question coming from the right, coming from the left, coming from Donald Trump, coming from lots of people, asking, why was a search needed? This is so unprecedented, so unusual. Why did the FBI need to go and get boxes?

And this affidavit does lay that out exactly. There are things we're not seeing. But we do see a quote at the very top of this saying that there is the belief that there is evidence of crimes still contained at Mar-a-Lago. We need to go and get that evidence.

And the way that the Justice Department wrote it is that they wrote: "There is probable cause to believe that additional documents that contain classified NDI," or national defense information, "or that are presidential records subject to record retention requirements currently remain at the premises of Mar-a-Lago. There is also probable cause to believe that evidence of obstruction will be found at the premises."

So those are the three things that are under investigation here that this affidavit outlines, looking into the Espionage Act, the handling of national defense information, the obstruction of justice, also the handling of federal records.

The document does have some things redacted here. We can't even see, apparently, the part that explains why they have such probable cause for obstruction of justice. But they do say that there is probable cause to believe that classified national defense information and presidential records would remain at Mar-a-Lago.

[13:05:08] And the investigators note that Mar-a-Lago does not have a secure location for the keeping of classified information or highly sensitive documents that would pertain to the national defense.

GOLODRYGA: Just to give our viewers a sense of these pages of what has been -- here's the redacted portion back in the back, but that the front, several pages, have been unsealed in this affidavit.

And what was interesting, Evan, is that before we got the affidavit, the DOJ issued a memorandum of law, listing basically the risks for releasing this as whole without any revisions. Talk about what was in here, specifically the threats to FBI agents and the witnesses.

PEREZ: Yes, these documents -- there's two documents, a memorandum of law and the document that is the affidavit.

But the memorandum of law talks about the reasons why they need to protect this investigation. They also need to protect the number of civilian witnesses.

I will read you just a part of this. It says: "The attached document must remain sealed to protect the safety and privacy of a significant number of civilian witnesses, in addition to the law enforcement personnel, as well as to protect the integrity of the ongoing investigation."

And we're talking about, again, an investigation that is focused on the conduct of the former president of the United States, people around him.

And yet what the Justice Department and the FBI are very concerned about is -- and they point to it. They say that just since the revelation of this search, there have been threats made to members of the law enforcement team that went to Mar-a-Lago. Their names were published. They were pushed out by the social media platform that is -- that belongs to the former president.

And so those members of law enforcement are now -- have now been subjected to threats. And so that's what the concern is here, is that witnesses who've already appeared -- and, again, the term is witnesses, right? It's not just one person who told the FBI about what was there at Mar-a-Lago, but multiple witnesses, Bianna.

GOLODRYGA: Yes.

And it's not just hypothetical in terms of the dangers and threats against FBI and DOJ officials.

PEREZ: Right.

GOLODRYGA: We have seen a number of them since his house was in fact searched earlier this month.

Evan Perez and Katelyn Polantz, thank you so much.

Let's discuss with former U.S. attorney and assistant Deputy Attorney General Harry Litman and CNN senior legal analyst Elie Honig and retired FBI supervisory special agent Steve Moore.

So, Elie, you're here on set with me.

Just give me your blanket early analysis here of what you found in this affidavit.

ELIE HONIG, CNN LEGAL ANALYST: So the most important thing to me, Bianna, is, we now know exactly why and how this matter escalated to a criminal investigation.

It's important to keep in mind there's two sets of boxes here. There's the boxes that the FBI removed from Mar-a-Lago during the search warrant. We already know a good bit about those boxes, because we have seen this receipt for property that is laid out that there was classified evidence in those boxes, including SCI, which is the highest level of top secret documents.

However, there was a second set of documents, an earlier set of documents that Archives, the National Archives, got from Mar-a-Lago, 15 boxes, and we knew next to nothing about what was in those boxes.

But now we know a lot that's really important. We know that they contain 184 classified documents; 25 of them were top secret. They contained Donald Trump's handwriting. We don't know when that got on there. They were -- quote -- " unfoldered and intermixed with other documents."

That tells me they weren't sort of put on the side, locked in a closet, that somebody was in there doing things, messing -- moving documents around. We don't know whether for good reasons or bad. And we know, not surprisingly, that Mar-a-Lago is not a secure facility for classified documents.

And that's what caused Archives -- when they got those documents and realized there was more at Mar-a-Lago, that's what caused Archives to get DOJ and the FBI involved. That's why this is now a criminal matter.

GOLODRYGA: And we get a scope of the timeline, of how long this had been going on, right?

HONIG: Yes.

GOLODRYGA: Because you have the president's legal team, the former president's legal team, saying, basically, you should have just asked us. We were cooperating.

And now we see how many attempts were actually made to do just that.

HONIG: This notion that DOJ or Archives acted suddenly or rationally in going in and executing the search warrant two-and-a-half weeks ago is completely false.

It's completely undermined by the actual facts, because this document tells us that Archives started asking for these documents from Mar-a- Lago in May of 2021 and didn't actually get them until seven months later. I mean, that is remarkable patience. If anything, I think you might question, Archives and DOJ, why did you wait so long?

GOLODRYGA: Right. Why didn't you go in sooner?

Harry, let me turn to you on this issue of probable cause, because we also learned that there was evidence of obstruction that would be found on the premises.

[13:10:02]

What do you make of that?

HARRY LITMAN, FORMER U.S. ATTORNEY: Yes, and not just evidence of obstruction in a boilerplate way, Bianna, but in the both -- in both the filings, the court ties it directly -- excuse me -- the DOJ ties it directly to what they have learned so far.

So, we are talking about the former president of the United States actually harassing witnesses, bringing them into danger and the like.

To Elie's point, which I agree with, remember, it's a year, a full year, until they find this. And then they look -- this is in paragraph 47 -- and see what kind of markings they have. These -- the top secret stuff and compartmental can get people killed. It is completely alarming.

And just to add to Katelyn's point, nobody down there, except -- well, not even Trump any longer -- even has a clearance at all. So it's not simply that they're being cavalier in their treatment of it, but that they are completely without authority to be messing about in the first place. These are things that adversaries really could get ahold of, really could do harm to the U.S.

Finally, just the overall architecture. We have the legal justification here tied to Trump and then just a few things that really are the back-and-forth with Trump's team, including an appendix here. And it's interesting, because it's basically what we're discovering is what Trump already knew. And it's documentation of just what Elie says, an unbelievable forbearance and prolonged length of time, especially once they find out how incendiary and radioactive these documents are.

GOLODRYGA: Steve, when we look at the -- the memorandum of law that was issued, the listing of the risks to witnesses is one of the reasons they needed for this to be redacted the way it has been, I want you to respond to this from the DOJ.

They said: "If witnesses' identities are exposed, they could be subjected to harms, including retaliation, intimidation, or harassment, and even threats to their physical safety. As the court already notes, these concerns are not hypothetical in this case."

The FBI also noted how FBI agents involved in the investigation have already been identified and received -- quote -- "threats of violence" from members of the public.

We have seen this materialize in terms of threats towards these FBI agents. How concerning is that? And do you think that their rationale for sealing this or for keeping this portion redacted is justified?

STEVE MOORE, CNN LAW ENFORCEMENT CONTRIBUTOR: Well, I think that's very justified.

FBI agents are used to having threats made against them. You do a long career, and there are going to be people who hate you and people who threaten. You know that's going to happen. But this is unprecedented, the way things are going in social media. Most of my career, there wasn't social media, and you didn't have to worry about it. But people still published your address, names.

But here's the thing with informants. And this is kind of crucial. Every agent throughout their careers going to be running informants. That's just the way you get these -- it's like real estate. You need prospects. The informants help you with cases immeasurably.

The problem in getting informants is, the first thing they're going to ask you is, I don't want to get in trouble. I don't want my name brought up in this. And the agent is put in a rough position, because you can say, I will do everything I can to keep it from getting public, but if a court orders it, I don't have a choice.

It's kind of like somebody -- the old joke they used to tell on the squad bases, getting an informant and saying that you're going to be protected, it's like going to a bar and saying, I will respect you tomorrow if you come back to my house, and, then the next day, you don't call.

All of a sudden, nobody is willing to be an FBI informant. And it chills the ability to get deep into a crime. And in this situation, somebody had very specific information, right down to where the rooms were.

GOLODRYGA: Yes, that's an interesting analogy I haven't heard before.

But we -- you should note that the affidavit could be used to identify many, if not all of these witnesses, so DOJ clearly suggesting that there's more than one witness involved here.

OK, everyone, stay with me. We are going to continue to dig through all of this, the newly released and redacted affidavit.

We will be right back after a break.

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[13:18:48]

GOLODRYGA: And we are back breaking down the redacted affidavit from the Justice Department, this revealing the sheer scope of this investigation.

CNN's Pamela Brown is with us now.

So, Pamela, the number of witnesses really stands out here.

PAMELA BROWN, CNN SENIOR WASHINGTON CORRESPONDENT: It does.

It helps explain why there are so many redactions, because, as the FBI said, it wants to protect the identity of these witnesses. But it did stand out to me that, in one of the documents released today, it said there were a significant number of civilian witnesses helping the FBI, talking to the FBI in its investigation, which helps you better understand why the FBI had the evidence and the belief that there was more classified information at Mar-a-Lago, and that is why it needed to take the extraordinary step to execute that search warrant.

In fact, what we know from this redacted affidavit -- and it is heavily redacted, but we still are able to get some key information -- is just how much classified information was handed over to the National Archives in January, and then how much remained, from what we know from reporting, at Mar-a-Lago even after those 15 boxes were handed over.

So, in January, you had 184 classified documents; 14 out of the 15 boxes handed over to the National Archives contained classified information.

[13:20:08]

Then we know that the FBI went to Mar-a-Lago in June, retrieved more information, an unspecified number of classified documents in June, and then executed that search warrant, where 11 sets of classified information were taken from Mar-a-Lago.

And so what this shows you is, this document today, it provides a lot of insight. But what it doesn't tell you is what else was in -- left at Mar-a-Lago after those 15 boxes were handed over to National Archives, which the FBI used to help make the case that there was probable cause that these three statutes were violated, including the Espionage Act.

And it is notable that, once the FBI was able to go through these boxes in May -- the investigation started in February after that referral from NARA -- in May, some of these documents contained classified markings to protect human sources.

I mean, if that information were to be made public, lives really could be at risk. Human sources are foreign spies that help the United States and national defense. If information about those human sources were to get out, you could see why that would be a national security risk.

So, that just shows you the level of the classification in some of these boxes that the affidavit says some of these classified documents were intermixed with newspaper clippings, with personal records. And it shows you just, at the very least, the level of carelessness in the way that these classified documents were being handled -- Bianna.

GOLODRYGA: Yes, we also now know how long that the National Archives had been trying to get these documents and boxes back, the majority of 2021. It was only in 2022 that the DOJ finally got involved.

Pamela Brown, thank you.

Well, our experts are back with us now.

Let me start with you, Elie, and really focus on what we're reading into. And that is, the affidavit could be used to identify many, if not all, of these witnesses.

HONIG: Yes, so some crucial language we can parse here.

There's also another reference to -- quote -- "information from a broad range of civilian witnesses." OK, civilian witnesses means not law enforcement, not police officers, not FBI, normal, regular people. We don't know exactly who they are, but that's important.

Broad range. This is what prosecutors call being intentionally vague. But I can tell you this. You would not say a broad range if you had one witness. You would not say broad range if you had two witnesses. So they are dealing with a substantial number here of normal people who have provided them information.

And DOJ deserves credit here, because the number one goal you have as a prosecutor, as a law enforcement agent is to protect your witnesses, protect them from retaliation, protect them from harm. They held the line here. They told the judge, we will unseal as much of this as possible, but absolutely not. They drew a black line that was not crossed when it comes to anything that could compromise a witness.

GOLODRYGA: Steve, are you -- are you comfortable, are you satisfied with the DOJ's response here in trying to protect these witnesses and FBI officials, at that, as well?

MOORE: Yes, I think they have done as much as they legally could to protect them.

I'm happy -- if I were the agent trying to protect sources, I would be very happy with this outcome. I think, just tailing on what was just said, is, one of the things that's interesting to me is, almost the last part of this document, it talks about the destruction or concealment of information, of classified information.

There's your obstruction right there. And it could come down to the fact that this might -- that the possession might not be the big deal. The big deal might simply -- might be actually the obstruction.

GOLODRYGA: Harry, so what happens next?

Where does this investigation go? And when will we likely see the full unredacted affidavit?

LITMAN: Yes, the music stops for a while now.

And we know that we are early in the investigation. They said so last week. And that's, again, a feature of this unusual characteristic, that they had to go in to get the documents, even though it was a relatively young investigation. Now we can expect perhaps Trump to file more kind of crazy motions. He has to justify one that he did last -- on Monday today.

And, otherwise, the department continues to pursue its investigation, but quietly, and make a decision whether to bring charges.

I do want to second the point just made that, although we're just giving the kind of procedure, you can, by knowing the procedure, infer a pretty serious criminal investigation, particularly into obstruction. And that is because the back-and-forth shows that Trump knew what he had, and that he lied about it.

One very important point to add to Pamela's timeline is a lawyer signed a piece of paper. I mean, imagine the timeline. It takes them a year to see. Then they find out it's all this classified stuff, four months until they can look at it. Now the FBI is alarmed. They go down and get more.

[13:25:09]

And finally, they say, is that everything? And they sign a piece of paper that says it's everything. Turns out to be a lie. So they're really now fit to be tied. That's what they will be looking at in terms of obstruction. And it could be months of quiet work by the DOJ, when you can expect, nevertheless, Trump to be yapping in the public sphere.

GOLODRYGA: So then, Harry, the likelihood of the DOJ, of the attorney general just saying, we have everything we needed, we're done with this investigation, is what?

LITMAN: Well, as of today, right now, not large.

But, remember, this started as a retrieval mission. And just two weeks later, it looks so much more serious. And it looks as if the kinds of charge that they could bring, it's by no means a picayune Presidential Records Act. This really goes to the sort of essential Trump sin of thinking that everything that belongs to the people, in fact, belongs to him.

The soonest they could do it would be a couple of months, I would say. But it is now freestanding and untethered from all of the January 6 stuff, which will take a lot longer to bring to fruition.

GOLODRYGA: So, Elie, if we can just pick up on what Harry mentioned, is that today's also the deadline for Trump's legal team to refile what the judge basically said was an incoherent initial filing and his request for a special master.

Does this redacted affidavit impact any of that? Or is that already done and sealed and ready to be filed?

HONIG: So there is an interesting revelation towards the very end of this affidavit, where DOJ says, we already have a wall team, a taint team, it's called sometimes, that's going to review these documents for attorney-client privilege.

So, in some way, that addresses some of the concerns that Donald Trump has. I think Donald Trump's response to that would be, first of all, I don't trust them to do it. I don't trust them to say, OK, here's one group of DOJ lawyers. They're going to review it before it goes to the other group of DOJ lawyers. When he asks for a special master, he says, I want a neutral, independent outsider to do that.

The other thing is, in Donald Trump's motion, which was procedurally a debacle, what he asks for is a review, not for attorney-client privilege on its own, but also for executive privilege.

So, to some extent, this document actually answers the motion that Donald Trump has to refile today.

GOLODRYGA: Does he have any executive privilege, given that he's not currently the president?

HONIG: Only in theory. It is a very serious uphill climb.

I do want to say this. It is not correct to say that a former president absolutely cannot invoke executive privilege. The Supreme Court has held open that possibility. It's difficult for a former president to do it. And it's extraordinarily difficult to do it when the current president is not invoking the privilege, as we have here.

But can it happen? Yes, it can happen.

GOLODRYGA: Well, Elie Honig, Harry Litman, Steve Moore, a lot to break down. Thank you so much for being here with us.

Well, former President Trump reacting to this release, trying to discredit the search warrant. But what are his allies telling us?

That's up next.

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