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Early Start with John Berman and Zoraida Sambolin

DOJ Opposes Release of Mar-a-Lago Search Warrant Affidavit; Senators Push for Answers About Mar-a-Lago Search; Republican Liz Cheney Fights for Congressional Seat. Aired 5-5:30a ET

Aired August 16, 2022 - 05:00   ET



CHRISTINE ROMANS, CNN ANCHOR: Here we go. Welcome to our viewers in the United States and around the world. It is Tuesday, August 16th. I'm Christine Romans.

We begin this morning with a flurry of legal maneuvers affecting former President Donald Trump and his allies.

First, the Justice Department says key parts of its Mar-a-Lago probe involve highly classified material and must remain secret to protect the integrity of the investigation. DOJ lawyers opposing a move by media organizations, including CNN, to unseal the probable cause affidavit that was used to get the FBI search warrant served on Mar-a- Lago last week.

In a separate Trump legal drama, a source tells CNN Trump White House lawyer Eric Herschmann has been subpoenaed by a federal grand jury investigating January 6. You might remember his blunt testimony before the January 6 committee.


ERIC HERSCHMANN, TRUMP WHITE HOUSE LAWYER: 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.


ROMANS: That is Herschmann talking about how he pushed back on Trump lawyer John Eastman's efforts to overturn the 2020 election.

Also, "The New York Times" reports a top Trump organization executive charged with participating in a year's long tax scheme is nearing a plea deal with prosecutors. "The Times" says Alan Weisselberg will now be cooperating in a broader investigation into Trump himself.

And there's this: Georgia prosecutors had informed Trump lawyer Rudy Giuliani he is a target a target of the Georgia grand jury investigating efforts by Trump and his allies to put the 2020 election results in the state.

Here's Giuliani's reaction on the right wing channel Newsmax.


RUDY GUILIANI, FORMER TRUMP ATTORNEY: When you start turning around lawyers into defendants when they are defending their clients, we're starting to live in a fascist state.


ROMANS: Starting to live in a fascist state.

Let's bring in Dave Aronberg, state attorney for Palm Beach County, Florida, who's been keeping up with all the developments.

Now, you heard Giuliani say that any remarks he made in the Georgia case are either covered by the attorney/client privilege or they were made on Donald Trump's behalf. Is that a legitimate defense for Giuliani here?

DAVE ARONBERG, STATE ATTORNEY FOR PALM BEACH COUNTY, FLORIDA: It is not because from the beginning of this investigation in Fulton County, the District Attorney Fani Willis has said that she will be looking at false statements made to legislative bodies, and Rudy Giuliani made several in front of multiple legislative committees in Atlanta. That is within Fani Willis' jurisdiction.

It doesn't matter whether you are a lawyer or not, you can't lie before these committees. And he said that there were 10,000 dead people voting. He said there were boxes of ballots that election workers put on the table to be counted illegally. And when you lie to the public or to the media, it is distasteful, but you can get away with it, it is not a crime.

So he can say what he wants outside Four Seasons Total Landscaping. But it is different when you lie to a state legislative committee, that is a crime punishable by up to five years in prison. So, Rudy is in a whole lot of trouble.

ROMANS: He spent hours making his case before those committees with all of these tales of boxes of ballots and conspiracy theories. Okay. A separate, separately here in a different legal drama here, the DOJ publicly opposing the release of that affidavit that laid out the probable cause for the FBI search of Mar-a-Lago last week.

Do you agree that it should remain sealed?

ARONBERG: I do. The affidavit is different than the search warrant, the inventory. Merrick Garland has gone as far as a prosecutor can go in a pending investigation. He is even petitioning the court to release more documents and he wants transparency, but you can only go up to a point. Prosecutors have a different set of rules than politicians do. We are ethically forbidden from litigating cases in the press, especially when there's not yet indictment.

And if you release that affidavit, you're going to provide a roadmap for the other side to see all your witnesses, you're going to see all the directions that you are going to go which allows a potential suspect to coordinate the story with another suspect. So it could ruin the entire investigation.

Plus, if you release evidence in that affidavit, that later is suppressed at trial, that could undermine the sixth amendment rights of a criminal defendant.


It could blow the whole case. So it is bad all around and I can understand why people on the right want to call for this because they can score political points by saying you are not being transparent enough, but they know especially if they are lawyers that prosecutor can't do what they are asking them do.

ROMANS: We've also learned that Trump White House lawyer Eric Herschmann has been subpoenaed by a federal grand jury investigating the January 6 events. How significant is that for this investigation?

ARONBERG: I think it's significant. Herschmann was the breakout star during the January 6 hearings as you said, he had that cool baseball bat in the background that said justice on it and that panda and his choice words towards coup plotters was amazing. He is the kind of guy that you want to have a beer with after it is all over. And I think that he's going to kind to bring that kind of candor to the grand jury.

And so, I think John Eastman and Jeffrey Clark better be worried because they could face because of his testimony and other evidence charges of obstruction of an official proceeding and conspiracy to defraud the United States and also seditious conspiracy. The question is whether Herschmann would invoke executive privilege like others from Trump world have done.

I don't think so because he knows better, he knows executive privilege can't be used to conceal a criminal conspiracy especially one involving the overthrow of the United States government. Herschmann clearly believes in the peaceful, orderly transition of power. To me, he could also debunk the defense of the classified documents, he could say there is not a standing order to declassify all documents that go home with Trump to Mar-a-Lago. So, he could be a viable witness in many different ways.

ROMANS: Dave Aronberg, legal developments keep coming fast and furious. Thank you for helping understand them all.

ARONBERG: Thanks, Christine.

ROMANS: All right. Talk to you soon. Thank you.

Attorneys aligned with former President Trump directed a data firm to copy information from local election systems in three battleground states. That's according to records obtained by the "Washington Post." "The Post" says the firm copied sensitive information from Dominion Voting System in Coffey County, Georgia, and was directed to do the same in Michigan and Nevada. The records obtained by "The Post" show that Trump-connected Sidney Powell was a central figure in that effort. Ahead on EARLY START, senators both sides of the aisle demanding to

see what was seized in the search at Mar-a-Lago.

Plus, primary day for Trump critic Liz Cheney, is this her last stand?

And the clock is ticking, millions of Americans are waiting to see if President Biden will forgive their student loans.



ROMANS: Lawmakers from both sides of the aisle are now pushing for the Justice Department to reveal more about the materials seized during the FBI search at Mar-a-Lago.

Daniella Diaz joins us live from Capitol Hill this morning.

Good morning, Daniella.

What exactly do lawmakers want to see?

DANIELLA DIAZ, CNN REPORTER: Christine, they want additional information on this FBI search that took place at Mar-a-Lago at former President Trump's residence, they sent private letters specifically to director of national intelligence, Avril Haines, and the Attorney General Merrick Garland.

Now, in a statement, Senator Marco Rubio who is the top Republican on the Senate intelligence committee, he told me that in his remarks, Attorney General Garland claimed there was a substantial public interest in the execution of an unprecedented search warrant on President Trump. As such, the intelligence community has asked the department of justice to share with us on a classified basis the specific intelligence documents seized from Mar-a-Lago.

What is notable about this, Christine, is that this is a bipartisan letter sent to top intelligence and DOJ officials to request information on what is in these classified documents seized from Donald Trump's residence. We've been seeing both sides of the aisle respond since the news that it's happened, mostly Democrats trying to understand what was in the documents, why they were seized, of course two years later after president Trump was in office.

And Republicans trying to understand also why the DOJ took this -- made the decision to visit Mar-a-Lago and seize these documents. We're really seeing a lot of response from lawmakers, this is just the beginning, where they are trying to really get information from the DOJ, from top intelligence officials about what is in the documents, why the FBI decided to do this and that is why they continue to request these briefings that we still have not heard back from these intelligence officials about to understand what took place during that FBI raid.

ROMANS: All right. It's such an unusual situation, as the president's residence, former president's resident. It's also a resort. It's a club. It's a place where people come to have dinner, paying customers and members. It's just an unusual situation, no question.

Daniella Diaz, thank you so much for that.

And Mar-a-Lago has been a security nightmare for intelligence professionals from the day Donald Trump took office. The sprawling 114-room mansion features a clubby atmosphere, wide ranging guest list and talkative owner, not the ideal setup for closely held secrets.

More now from CNN's Brian Todd.


BRIAN TODD, CNN CORRESPONDENT (voice-over): New concerns that Donald Trump's Florida resort Mar-a-Lago did not meet the standards needed to store top secret classified documents.

AKI PERITZ, FORMER CIA COUNTERTERRORISM ANALYST: You have this perfect storm of intelligence interests and poor security. All in one place in Florida.

TODD: According to a review by CNN's Kevin Liptak, security at Mar-a- Lago has come into question on several occasions in recent years. One night in 2017 at the resort when Trump and then Japanese leader Shinzo Abe consulted on a sensitive national security issue, word of a North Korea missile launch, club guests were close enough to take photos like these. In view of the guests on the patio, documents were illuminated by the light of a cellphone.

PERTZ: The fact that he has these documents lying around and he shares it with a foreign national who happens to be a prime minister and who knows who else is incredibly serious. And it shows a general lack of understanding of how our national security system works.

TODD: Another post from a Mar-a-Lago guest showed the guest standing with an aide who said held the president's nuclear launch code satchel. Unclear how close the guest got.

In 2019, a Chinese businesswoman was arrested for trespassing at Mar- a-Lago.

PERITZ: She was able to carry into Mar-a-Lago a modern day burglar's tool kit.

TODD: Including a thumb drive, a laptop, an external hard drive and four cellphones. Prosecutors said they later found in her hotel room a device to detect hidden cameras and thousands of dollars in cash.

One intelligence veteran worries about who else could have breached the compound at any point.

PERITZ: If you were a hostile intelligence service, I would have tried to recruited a maintenance person, a maid, middle management, a secretary, one of the people that comes and goes within Mar-a-Lago all the time.

TODD: In 2018, while the president and first lady were at Mar-a-Lago, a college freshman was able to get on to the grounds by walking through a tunnel from the beach. Prosecutors said that he was screened for weapons by the Secret Service at some point but wasn't stopped from entering the property even though he wasn't supposed to be there.

LAURENCE LEAMER, AUTHOR, "MAR-A-LAGO: INSIDE THE GATES OF POWER": Just waiting for disaster. You could walk into the pool, nobody is standing there.

TODD: Author has written a book on Mar-a-Lago and says he's been on the estate several times. Leamer says Trump's personal attitude toward security there is part of the problem.

LEAMER: He is perfectly comfortable at Mar-a-Lago. Why? Because he has to be adored. He can't stand to be alone. He wants to have people around him all the time celebrating. So when he walks in Mar-a-Lago, people stand up. They are constantly standing up applauding him. He needs that.


TODD (on camera): Regarding the reporting of sensitive documents remaining at Mar-a-Lago, CNN has reported that one of Trump's attorneys earlier this summer claimed that no classified material remained at Mar-a-Lago. Trump and his allies have said that he used his prerogative to declassify the documents before leaving office but they have offered for evidence of any formal declassification process taking place.

Brian Todd, CNN, Washington.

ROMANS: Fascinating. Brian, thank you for that.

Ahead, a defining moment for the Biden presidency, the Inflation Reduction Act about to be signed in to law.

And voters in Wyoming about to decide the fate of Liz Cheney.



ROMANS: Congresswoman Liz Cheney fighting to keep her job as they faces off against Harriet Hageman and three other Republican opponents in this closely watched Wyoming primary.

Cheney once a member of the house GOP leadership has become one of Donald Trump's strongest and most consistent critics after the January 6 Capitol riot while Hageman has Trump's backing.

CNN's Jeff Zeleny has more.


REP. LIZ CHENEY (R-WY): We have to set aside partisan differences and understand that there is something much bigger at stake here. JEFF ZELENY, CNN CHIEF NATIONAL AFFAIRS CORRESPONDENT (voice-over):

On the eve of the Wyoming primary, Liz Cheney is in an uphill fight to hole her congressional seat even as she begins eyeing the next steps in a bigger battle ahead.

CHENEY: Many people will come up to me and say, I never voted for you before. But I'm going to do it this time and I say, great and let's keep that going.

ZELENY: A Republican from one of the state's most storied political families, Cheney has become a pariah in her own party, and she's turning to Democrats and independents for a last-minute life line.

ANNETTE LANGLEY, WYOMING VOTER: I never thought I would vote for Cheney. But she has earned my respect.

ZELENY: Annette Langley says she is a proud Democrat but she stood in line for nearly an hour today to change parties and vote Republican.

LANGLEY: She might not win but she needs as much support as possible for doing what she's doing.

ZELENY: The odds are long considering how former President Trump's shadow looms large in Wyoming, where the rolling summer beauty has been punctuated by a scorching political campaign between Cheney and Harriet Hageman.


ZELENY: If the crossover vote doesn't save Cheney, her admirers hope it could help avoid an embarrassing blowout that Trump would revel in.

DONALD TRUMP, FORMER PRESIDENT: Liz, you're fired. Get out of here.

ZELENY: Mike Sullivan is the former Democratic governor of Wyoming, who served three decades ago.

MIKE SULLIVAN (D), FORMER WYOMING GOVERNOR: Wyoming, always a trail blazer.

ZELENY: He planted a Cheney sign in his front yard to send a message for democracy and the rule of law.

SULLIVAN: Without regard to her politics, she has reflected herself as a leader. I think history will prove her. And the legacy that she leaves will be a very impressive and important one.

ZELENY: Joe McGinley, a former GOP county chairman in Casper, said he believes some Republicans are afraid to admit their support for Cheney, fearing the wrath from Trump and his loyalists.

JOE MCGINLEY, CHENEY SUPPORTER: There are lots of people throughout that are supporting Representative Cheney. They are just afraid to speak up, unfortunately. ZELENY: The outcome of Tuesday's primary will make clear whether such

a hidden Cheney vote exists or if Republicans reward her for not changing her position in the face of a brutal campaign.

CHENEY: I will never violate my oath of office. If you're lack for somebody who will, you need to vote for somebody else on this stage because I won't.

ZELENY: These days, Cheney is hard to find. Outside of friendly audiences, at house parties, which aides attribute to rising threats of violence. She told CNN last month she was well aware of the headwinds facing her.

CHENEY: I don't intend to lose but some things are more important than any individual office or political campaign.



ZELENY (on camera): Perhaps it is less a question of whether Congresswoman Cheney wins on Tuesday than what she will do if she loses. Now, of course, she does keep her position on the January 6 special committee investigating the capitol attacks for the next several months. She also retains her congressional seat until early January. But her aides tell me that she is planning a longer term battle against her ultimate quest, that is keeping Donald Trump out of the White House.

Jeff Zeleny, CNN, Jackson, Wyoming.

ROMANS: So glad Jeff is there to report on this for us. Thanks, Jeff.

Joining us now from Casper, Wyoming, is freelance journalist Susan Anderson who has been covering the state and the Cheney family for more than four decades.

We're so privileged to have you on the program this morning.

So, you know, a Cheney is the underdog in Wyoming. Unheard of not so long ago. Give us the pulse on the ground. Could there be an unspoken group of Cheney backers who won't admit it publicly but get to the polls and maybe that that crossover vote? What are you hearing?

SUSAN ANDERSON, FREELANCE JOURNALIST: There is a very passionate group of people who support her and they probably don't talk about it, but if you were in my town of Casper, you'd probably see more Cheney yard signs than Harriet Hageman has. And I think the people who do support her will definitely make an effort to go and vote. I think the figures about the percentage of votes that Donald Trump got don't mean that that many people passionately feel about him. They just vote Republican.

So I think there is a lot of passion behind supporting her. Whether that's enough to overcome the numbers that were reflected in recent polls, that, I don't know. ROMANS: You know the political ins and outs of the Cheney family

better than anyone. How do you think a lifetime in politics is preparing her for this most important primary of her career, and what about her future political goals?

ANDERSON: Well, I'll start with the family background because I've looked into that. I was interested when this all developed that she has become such a strong leader and sense I've known her many years, you kind of wonder has that always been there, where did that come from, that willingness to risk her career or at least her career in Congress.

So her family is so oriented toward not only politics but history. And she told me this, and I wrote an article about how her parents talked about politics and history and revered historians around her house. And her mother, Lynne Cheney, has written 12 books about history and she wrote one a is for Abigail about women who have been active in politics.

And so as she says, she heard about women role models and about how important democracy is since childhood really. And so that part is not surprising actually. And she told me she remembers campaigning with her father Dick Cheney on his first race, she was about 10. And somebody saying to him I'm never going to vote for you because you lived in Washington when he was Gerald Ford's chief of staff.

And Dick Cheney said, well, if that's your main thing you are looking for, then I'm not your candidate. And you hear the same words come from her. And so she has seen her father go through a lot of criticism. And I asked her how do your kids feel about you going through all of this and she said, well, they saw it happen to my dad first. So the family is prepared for how rough politics can be.

Now, what happens next, I don't know, but I do recall that she certainly had a high profile even before she was in Congress, before. And it's only going to be higher now. What she does with it, I don't have inside information, but she'll certainly be a representative for how important democracy is.

And it really seems that her focus is this long term battle to deprive Donald Trump of a second term in office. You know, that seems to be the current goal to really shine a light on what is happening in democracy and Donald Trump's role in it. And then inevitably everyone asks, you know, is she going to run, her own presidential run come '24.

What's your sense?

ANDERSON: Well, the words she says of course are I'm concentrating on this campaign. I don't know if that is exactly when she would do that. Because right now I think that it would be hard for her to win a national Republican primary. But I don't really know the answer to that.

But I do know that one of the things that she says is -- one of her very first jobs out of college was working for USAID and she was helping students in China get fax machines and she said it has been important to her throughout her life to help democracy. So whether that is some kind of international continuing to help democracy grow role, I'm not sure. But I know the concept of how much it meant to her to watch people in Africa, in the Soviet satellites of the '80s try to have democracy.