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Redacted Mar-a-Lago Affidavit Could Be Released Any Moment; Any Moment: DOJ Expected To Release Redacted Mar-a-Lago Affidavit; DOJ Files Redacted Mar-a-Lago Affidavit; DOJ Releases Redacted FBI Affidavit For Mar-a-Lago Search. Aired 12-12:30p ET

Aired August 26, 2022 - 12:00   ET

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

[12:00:00]

JESSICA SCHNEIDER, CNN JUSTICE CORRESPONDENT: The judge issued a two- page order yesterday, basically saying he agrees with the Department of Justice that there is just too much at stake to release a lot of this information into the public sphere.

He said that in fact, the information about witnesses, grand jury, uncharged parties, those people who may be targets of the investigation who have not yet been charged, all of that information will not be available because, of course, this is the affidavit that laid out the probable cause for that search warrant at Mar-a-Lago that was executed on August 8. So, this is all the information that has been laid out to the judge by the Department of Justice as to why he should have signed off and didn't sign off on that search warrant.

So, the Department of Justice has consistently said, judge, if too much of this information is put out there, it will derail our ongoing criminal investigation. However, you know, the judge had pushed back on that saying, Department of Justice, I want you to try to see how much you can reveal. And it seems that what we got yesterday, the judge seems satisfied with what the DOJ had put forward.

So maybe, we will actually get a bit more than we had expected here. It could be a lot of procedural details, but it could still give us more insight into what led to the approval for that search warrant and what the underlying basis for this criminal investigation is. So, Abby, we've just hit new. We're expecting more activity on the court's docket very shortly, and we'll keep checking it and get back to you as soon as something is filed.

ABBY PHILLIP, CNN HOST, INSIDE POLITICS: Jessica, standby, we will get back right with you as soon as you have that document. And joining me now, around the table is former federal prosecutor Elliot Williams, and CNN legal and national security analyst Carrie Cordero.

So, while everybody is hitting refresh on pacer right now, we have a moment where the judge in this case has said, government I agree with your decision to redact certain elements of it, but yet, he still sees fit to release this document. So, Elliot, what does that tell you?

ELLIOT WILLIAMS, CNN LEGAL ANALYST: What does it tell you? Look, it's important to take a step back and just think of what sort of the law governing all of this is, right? In criminal proceedings, documents are presumed - proceedings are presumed to be open, right? That's put in the constitution, things should be open. We have an open access to the criminal justice system.

Investigative documents, the Justice Department often does not make public, and the law allows that to happen. This judge is allowing some aspects of this investigative document to be released to the public because there's good cause to do that, right?

And what he has done is gone through and given the Justice Department an opportunity to blackout things that might jeopardize future investigations or the one they're working on. That's we're going to see today. The devils in the details, literally, of what the Justice Department's going to be able to black out and still have this document be somewhat useful.

PHILLIP: There are some who question that call, that is even in the public interest. Here's a conservative attorney and commentator at the National Review, Andrew McCarthy writing, that this is a criminal investigation. We are not talking about a classified FISA warrant that we were never going to see since we're probably going to find out soon enough what's in this affidavit, there is no great publicly need to find out now when the downside would be to undermine the government's investigation.

Carrie, I know you are sensitive to those concerns as well. Do you think that that is true? Or is the judge right to release something?

CARRIE CORDERO, CNN LEGAL & NATIONAL SECURITY ANALYST: Yes. Well, I think in one part of the question is, what's the rush here? Why this really, really tight deadline that the judge imposed on the Justice Department to have to really carefully go through this lengthy affidavit and determine in really quick time, what they can afford to release that hopefully won't disrupt their investigation.

So, one question I have is, why has the judge push the timeline on this so far? And then the next piece is the challenge here is, can the Justice Department produce a document according to the judge's order? That's going to be meaningful.

In my view, the worst outcome is going to be a document that contains a little bit of information that's subject to misinterpretation that then opens the Justice Department up to, oh, they selectively redacted the information. And really, the public doesn't even have that much more information.

PHILLIP: Wouldn't you think that if the judge has looked at the redactions said, I accept those redactions and still releases. And wouldn't you think that that means, he believes that it is substantive enough that it would provide some clarity to the public?

WILLIAMS: Again, the standard is, is it in the public interest to release the document, and that's a fuzzy standard. And the judge has decided that there's some use to the document, but once you get beyond names and addresses of individuals, there's other information that might be attached to somebody's name that can still tip off who they are.

Abby Phillip talked to two individuals on Friday, August, I think, I don't know what day it is anymore, the 26th or whatever, right? And that could give away both of our identities right here. Think about that over the course of a 25 or 50-page document, the number of pieces of information that you're going to have to redact out.

And that applies to places, objects, pieces of individual evidence, individuals who haven't been charged with crimes or might be charged with crimes in the future might be witnesses. So, what you may end up with is literally a document of pages and pages and pages of black boxes, and it's hard to see how that could be in the public interest. But we'll see, I don't know.

[12:05:00]

PHILLIP: The elephant in the room though is what you just said the charges. What is the likelihood that there are charges forthcoming as it relates to this document? Because, yes, the affidavit might be unsealed if there are charges, but we can't be sure that there wouldn't be.

CORDERO: Well, the affidavit is the judge has ordered that it's going to be unsealed. And nobody has been charged with anything yet. And so, that in itself is a risk, because if too much information is revealed through the publication of some of the affidavit, then that actually can potentially expose people who might not be charged with crimes.

There's other people who may have been involved in handling the information that ended up at Mar-a-Lago, who may or may not be charged with crimes eventually, and if information about them is put into the public that actually is an invasion of their privacy. So, there's a lot of really delicate aspects to the Justice Department conducting an investigation and information about that investigation coming out too prematurely.

WILLIAMS: And I think what folks don't understand is that this isn't just about the president of the United States being potentially the target of a crime. There could be other people being investigated for crimes, but the search warrant just happened to happen at Mar-a-Lago. If Carrie and I are engaged in a drug trafficking conspiracy, and I'm the head or the kingpin, but she's got the suitcase of crystal meth in a house. They can search her house but still charged me with a crime.

The mere fact that her property was the one search doesn't mean that she's the only person who might. And so, you know, there could be many, many people here whose privacy rights and criminal justice rights are at stake.

PHILLIP: It's always important in moments like this to remind people, there's a lot that we do not know.

WILLIAMS: Yes.

PHILLIP: And that is incredibly important, even when we get this document because there's still going to be a lot that we don't know. One piece of information that we've received in some of the reporting that my colleagues have done is about what is going on in Trump world inside the former president's head. Our colleagues report that one source close to Trump told CNN that Trump has posed the question about a potential indictment to members of his inner circle.

Another advisor acknowledged, that while Trump has certainly been in legal peril before, this seems different and potentially more dangerous, particularly because the former president no longer has the legal protections afforded to the executive orders or office. So, two separate issues here. There's the Trump circle, and then there is Trump himself. But there's clearly some concern here that the investigation is centering on the former president or people close to him.

CORDERO: Well, allegations of mishandling classified information are violations of significant federal crimes. The mishandling of classified information falls under the Espionage statutes. That's where in criminal law it resides. It's a really serious federal crime.

Now, I can think of case examples where former senior intelligence government officials were charged with mishandling classified information, taking information back to their home, but those only ended up as misdemeanors. And one case I can think of was a pardon, eventually, and one case was someone who ended up pleading guilty, but those people did not face jail time.

That's different than other cases, I can think of where former government officials who had access to classified information gave that information to somebody else, gave it to a member of the media, gave it to a foreign government. Those cases are cases where people end up charged with really serious federal crimes and they end up going to jail.

And the difference here and the problem with potentially releasing this affidavit is that the FBI's investigation was on going and the piece that is they - I imagine they are still trying to investigate is whether these documents ended up in other hands other than the former president. And that can make a huge difference in terms of the potential criminal exposure.

WILLIAMS: And on top of that, I'm picking up on the former president versus current president point. There's a big, big difference between charging the former president who is a private citizen with a crime and charging a sitting president with a crime. This came up many times over the course of the last two or three years.

The presidency is the one role in United States government that is, for lack of a better term unitary, nobody else fills the role. It's not like the chief justice, where somebody else can step in and take the role. There are simply functions that the president has, and if you charged that person with a crime, you could create a constitutional crisis. And that was one of the things that sort of tied up the Justice Department on Robert Moore.

PHILLIP: But that's not the case. WILLIAMS: That's not the case. (crosstalk) situation. Carrie and Elliot, standby for us. We're going to go to Evan Perez, our senior justice correspondent, and Katelyn Polantz our senior crime and justice reporter. Evan, I know that the Justice Department has met their a noon deadline to produce this document. What are we waiting for at this moment?

EVAN PEREZ, CNN SENIOR JUSTICE CORRESPONDENT: Well, we're waiting for the creaky system of the court documents system to actually give us the document that the Justice Department filed. You know, jokingly last night I said, you know, knowing these lawyers at the Justice Department, and especially the ones at the National Security Division who are handling this, I jokingly said that they were going to wait till 11:59, 59, 59, 50. You know, that is appears is what has happened here.

[12:10:00]

And so, now we're waiting to see. Look, one of the things that I just listened to your conversation, I think, you know, I want - in reading the order from the judge ordering that this be released. You know, he said that, you know, he viewed what the government had submitted as meeting its burden of showing that the proposed redactions are narrowly tailored to serve the government's legitimate interests.

And that's what I think we're going to see. We're going to see a document that is narrowly tailored in the view of this judge, in the view of the Justice Department. And so, we're probably going to see a lot more perhaps than they normally would on redacted types of documents. Obviously, we almost never see a document like this at this stage in investigation.

But obviously, because of the unprecedented nature of what has happened, the search of our former president's home. The finding that there are perhaps up to, you know, hundreds of pages of classified documents. Some of them at the highest level of classifications found in an unsecure place, which is the beach house of the former president has brought us to this point. Now, we are all sitting here, refreshing PACER. And that might be adding to the problem of us, trying to actually get this document. Hopefully, we'll see that soon, Abby?

PHILLIP: Hopefully, we will see it soon. I mean, everyone, probably in the United States and around the world is hitting that refresh button. And Katelyn, you have been following the docket back and forth on this for quite some time. What do you make of what the judge has said over the last week first, in his decision to say, I believe that some of this needs to be released? And now to do it, frankly, so quickly, after the Justice Department submitted to him those redactions.

KATELYN POLANTZ, CNN SENIOR CRIME AND JUSTICE REPORTER: So, Abby, actually I was just reviewing what the judge has said. And one of the things that really jumped out was when he first decided that there was an interest here, to have this transparency, to have a level of negotiation with Justice Department of what could be unsealed.

He wrote that he wanted to do this because he wanted to promote public understanding of historically significant events, historically significant events, plural. And that really is something we should be remembering right now, as we're waiting to see what is in this affidavit. There are so many pieces here, that we have never really been down this road before, at least in the modern era of the presidency, especially post Nixon.

The way these documents have been handled, that is historically significant. Apparently, from what we know so far for a president to leave office to take with him without the help, or apparently with the blessing of the National Archives at that point in time.

The fact that there's a criminal investigation into a former president or all those around him, we don't know if it's him exactly. But a federal investigation into the handling of federal records of National Defense Information related to a former president, and then also the search of the former president's home Mar-a-Lago. We have never really seen anything like that before.

And then finally, the last thing that's historically significant about this is the transparency that's happening here. This, we never see this related to affidavits. Whenever there's an ongoing investigation, this is the sort of thing that the Justice Department holds the closest to their chest, not even after an indictment. But once someone is convicted, they usually don't even let you see this until a case is totally wrapped up. So, we really are living in an unprecedented time, a waiting to see what is in this document.

PHILLIP: A very important point. I do want to emphasize that this is an incredibly significant and historic day because of the nature of what we are talking about. And now everyone standby. That's right, Evan. The Department of Justice legal brief has been - explaining the redactions has been unsealed. This is not the affidavit itself, but rather the memo outlining the redactions. We're going to go to Jessica Schneider, who has the details for us. Jessica?

SCHNEIDER: Yes, Abby. So, what we are getting right now is not actually the redacted affidavit, but rather, the memorandum of law. The DOJ also submitted yesterday, explaining the reasoning behind the need to redact a lot of this information. So, it's really two different documents at this point.

One of the documents is a lengthy legal explainer. The other one's actually pretty interesting, it goes through the exact paragraphs of this affidavit. The document I'm looking at shows about 78 paragraphs of the affidavit in all, and then lists all the reasons why information should be redacted. However, all of those explanations are in fact redacted.

[12:15:00]

Then you go to the memorandum of law that has been released, and it tells the judge exactly why certain elements need to be kept out of public view. And the very first thing it talks about is the identity of these witnesses. This is something that the government has talked about during that court hearing, talking about really the danger to these witnesses that have provided information throughout this criminal investigation, the danger that they could face, if any information, any identifying details are released to the public.

The DOJ saying, this information needs to be sealed to ensure their safety information in this affidavit, they say could be used to identify many, if not all of these witnesses. And as we've stressed before, this shows us that the DOJ has been talking to many witnesses throughout this investigation, not just one here.

I mean, it says specifically, if witnesses' identities are exposed, they could be subjected to harms, including retaliation, intimidation, or harassment, even threats to their physical safety. So, the DOJ making clear here, how dangerous this would be.

The memorandum of law goes on, not only to talk about witnesses, but to talk about how they have to keep the information about the roadmap to the investigation under wraps, because Abby, as we've repeatedly said, this is an investigation that's ongoing. It is very unprecedented to unseal an affidavit before charges had been filed and that's exactly what the judge is doing in this case.

So, the DOJ laying out exactly why much of this affidavit needs to be redacted, remains sealed. So still waiting on the affidavit itself but getting a little bit more information from DOJ about why they need these necessary redactions. So, stay tuned for more.

PHILLIP: Jessica, will be back with you as soon as you have more. Let's come back to the table with Elliot and Carrie. So, Carrie, what do you make of the fact that this explanation of the redactions was actually released? I'm not sure that was expected, but perhaps it was.

CORDERO: So, the memorandum of law is laying out some of the things that we were describing before in terms of, it's really the Justice Department explaining why most of the affidavit cannot be released to the public. And they're the looking through the memorandum of law very quickly.

It looks like there's five reasons as Jessica was describing witnesses, that it would provide the roadmap to the investigation, grand jury information, importantly the safety of law enforcement officers who have been involved in this investigation, and then something we were describing earlier, which is the privacy interests of individuals who might be referenced in the affidavit but not eventually charged.

So, this memorandum of law is really laying out the reasons why in a normal course of business, the Justice Department would not want this information out and why it really respects people's constitutional and privacy rights to not have all of this information spilled out into the public.

Another notable thing that I saw quickly in the memorandum of law is the Justice Department argues in this document, that the facts of this case are particularly compelling. And so, there are circumstances in this investigation, most likely because it involves national security, most likely because there have been threats to individuals in law enforcement who have been involved in this investigation, that there are even heightened reasons in this case, maybe as opposed to a regular case, why so much of this investigative information would be premature to be released (Ph).

PHILLIP: And as a reminder to our viewers, the reason we are having this discussion is actually because news organizations including CNN have asked for this affidavit to be released. The government opposed it. They proposed their redactions, but the Trump side, even while publicly they've been saying in the media, we want the warrant. We want the affidavit. We want the witness list. In court, they have made no such argument.

WILLIAMS: Which is a little bit perplexing, because really what matt, this is not a political proceeding in a courtroom. There is time for politics, right, in America but that doesn't win in court. And if they wish to take a position with respect to the any of these documents being released, they ought to have filed so in court.

This is a really interesting document, because what it does is sort of just state things that you kind of could Google, it's the law governing why the Justice Department or why our system does not allow grand jury materials to be released at states a couple cases. And then says, for example, and then it's a page of black marks. And that's pretty much on everything. There are privacy interests at stake in this case. And it lays out the law and privacy, and then says for example, and then has redactions.

And so, really this is - it's an important document because it's not just the opinion of the Justice Department. These are cases that are either the Supreme Court or other cases in America that lay out what governs documents like this, but you're not really finding out anything in particular. I mean, they do say the public is aware that there was a search at Mar-a-Lago and then it's black.

[12:20:00]

PHILLIP: Well, everyone standby for just a second. Let's go to Kaitlan Collins, our chief White House correspondent. Kaitlan, the Trump world I am sure is also waiting to see what is in this affidavit. What are you hearing about what's going on over there?

KAITLAN COLLINS, CNN CHIEF WHITE HOUSE CORRESPONDENT: Yes. I think it's important to remind people that Trump and his legal team have not gotten a look at this this document either. The government is not required to show them the affidavit, which was of course behind the search of Mar-a-Lago. And though as you were noting, Abby, he has called publicly for it to be released, and so have some of his attorneys on cable news on social media. They haven't actually argued for that in court.

And the government actually notes that here in this filing, saying they recognize that the former president has spoken publicly about this investigation, and has said in a public statement he wishes for the affidavit to be disclosed in its entirety. Although the court has noted that neither the former president or anyone else reporting to be the owner of the process has filed a pleading taking a position on this.

So, noting, they are talking about it publicly. They have not actually taken a position in a courtroom on unsealing the affidavit, and they said they would like to see the entire thing released. And I think, Abby, as we wait for the actual affidavit, and we look through the reasons for why they wanted the certain parts of this to remain blacked out to remain not seeable to the public.

They also say, the government has well founded concerns that steps will be taken to frustrate or otherwise interfere with this investigation if the facts were released, too prematurely. So, noting, you know, really the concerns that they have here about, if they reveal too much in affecting the outcome of this investigation. Trump and his legal team are watching closely to see what this says. He has been huddling with his attorneys this week. And so, they will be watching and refreshing just like everyone else, Abby.

PHILLIP: Yes. And that's a very significant piece of the filing that you just read there about their concerns that disclosures could end up disrupting their ongoing investigation. But Kaitlan, I want to ask you about President Biden. He was asked about this issue of whether national security has been or what is being compromised. What did he say?

COLLINS: This has been a major question for the White House, because for obvious reasons, they have not wanted to weigh in on this investigation. They did not know about the search. They say until it actually was happening at Mar-a-Lago. They found out through public reporting, like the rest of us something that President Biden reminded reporters of this week.

But a big question has been, their concerns about whether or not any kind of U.S. national security secrets were compromised, potentially sources and methods maybe by the fact that these documents were at Mar-a-Lago. And clearly, we saw a great concern that the authorities had about this as they were discussing the need to get these documents back to be able to go through these documents.

And basically, Abby, do a damage assessment of what was taken to Mar- a-Lago and kind of left in the storage room. When President Biden though was just asked a few moments ago, he thought national security had potentially been compromised by these documents being kept there. He paused for a moment, and he said that, they are going to let that determination be made by the Justice Department. He said, "we'll see what happens."

PHILLIP: Kaitlan, thank you. We'll be back with you throughout this hour. And we're going to go now to Evan Perez. Evan, we're also learning about a key reason that the Justice Department tried to keep items from the affidavit secret, as we've been discussing a concern about threats to witnesses in this case.

PEREZ: Right. I mean, look, this memorandum of law actually talks about in this 13 pages. It talks about that we've already seen threats made to the FBI agents who were involved in the search. And I'll read you just a part of it. It says, FBI agents who have been publicly identified in connection with this investigation have received repeated threats of violence from members of the public, exposure of witnesses' identities would likely erode their trust in the government investigation. And it would almost certainly chill other potential witnesses from coming forward in this investigation and others.

And let's just pause for a minute and talk about and think about this. We're talking about an investigation that has to do with the former president of the United States. And the Justice Department is - and you know, under this - in this filing is saying that as a result of this, because of the actions taken by members of law enforcement authorized by a federal judge down there in the Southern District of Florida.

There have now been threats, which sort of gets to what we've been living with, frankly, over the last five years or so, which with the idea that the former president with some of his public statements, the statements of some of his allies can trigger this deluge that goes at whoever he believes is wronging him.

And in this case, we're talking about federal law enforcement officers. And of course, you know, for the Justice Department, the concern here is that they're trying to do an investigation and they need to be able to get the trust of witnesses. And according to this, witnesses is very important because it tells us that, you know, it's not just one person who has given information to the FBI to prosecutors about what they saw at Mar-a-Lago and what gave them the belief that there was more classified documents to be retrieved there.

[12:25:00]

So, we are talking about multiple people with multiple witnesses that the Justice Department says, I'll read you just another part of it. It says, if witnesses' identities are exposed, they could be subjected to harms, including retaliation, intimidation, or harassment, or even threats to their physical safety. It's an extraordinary choice of words to be talking about. When you're talking about an investigation that has to do with the former president of the United States.

PHILLIP: It is extraordinary, but not hypothetical at all. We have seen those threats in real life carried out over the last couple of weeks. So, it's very significant. Evan, standby for us. We're going to go now to Katelyn Polantz. Katelyn, you've got some more information about what else is in the documents that we have so far.

POLANTZ: Right. So, we're still just looking at this reasoning for why the Justice Department wants to keep things very protected here as this ongoing investigation goes. And to what Evan was saying about these threats. The way that this is being thought about, at least by the Justice Department and the judges agreeing is that there are two sides of the possibility of risk for witnesses and law enforcement agents.

There is the risk in the public sphere, right? There is a public tenor of anger of people that have really threatened as the Justice Department is confirming here, people that are involved in this investigation, FBI, its agents in particular, but then there's the private sphere, the sphere of this investigation, that is not a hypothetical threat, that it is a real investigation into obstruction of justice. And one of the things that when you look at this week legal brief that the Justice Department is writing and saying, why they need all these reasons to protect witnesses and to protect law enforcement officers, they say that information regarding investigative avenues and techniques are included in this filing that could provide a roadmap for potential ways to obstruct this investigation.

And when we were in court previously, last week, watching this proceeding play out, it was made very clear by the judge that these are not just hypothetical threats of obstruction, there is probable cause to believe that there could be obstruction, intimidation, some sort of tampering, happening behind the scenes, in this case. Abby?

PHILLIP: And it's notable also, the language, Katelyn as you know, every single word of these documents matters. The government writes that there are a significant number of civilian witnesses in this case, that stuck out to me. Katelyn, standby. We're going to go back to Evan Perez. Evan, what are you learning?

PEREZ: Well, Abby, we now have the document. It's 30, roughly 38 pages that we're looking at. And, you know, it looks like from what the judge said yesterday, this is exactly what the Justice Department did. We're talking about significant portions of this document, are not redacted. And, you know, we are talking, you know, again, just from my eyeball - eyeballing of it, it's probably roughly half of it is actually visible to us from, you know, from these pages.

And, you know, it goes through - from the beginning of it, it goes through the timeline of the Justice Department getting involved in this, which is back in essentially in February, when the FBI receives a referral from the National Archives that there are these boxes, these 15 boxes that have been retrieved from Mar-a-Lago and that they contain - they contain significant amount of classified information.

And significantly, it says here, you know, one of the - there's a lot that is redacted. But it says, there is a further probable cause just to believe that additional documents that contain classified national defense information, or that our presidential records subject to record retention requirements, currently remained at the premises and this is significant. There is also probable cause to believe that evidence of obstruction will be found at the premises.

Again, this is why the Justice - this is why the FBI believed that they had to take this extraordinary step, which was that they believed they could find evidence of obstruction, not just the storage of classified information in a non-secure way. But just the idea that there might be obstruction, which we don't know a lot more about what that is, but it really says that they were concerned perhaps about the destruction of evidence or other methods to try to evade what the FBI was trying to investigate him.

PHILLIP: Evan, let's go to Jessica Schneider right now as well bringing her into the conversation. Jessica, you've been going through this document as it's just come out moments ago. What are you learning from your initial read of it? SCHNEIDER: Well, Evan touched on a lot of it as well. I mean, you know, we are getting a lot of information here, you know, just to show viewers at home what this is like.