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DOJ: Sealed Trump Search Affidavit is 'Road Map' to Criminal Probe; Giuliani on Being a Target in Probe: We're in a 'Fascist State'; GOP's Cheney Faces Uphill Battle to Keep Seat Amid Trump Criticism; America's Exercise Habits are Changing as Pandemic Eases. Aired 6-6:30a ET

Aired August 16, 2022 - 06:00   ET

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

JOHN BERMAN, CNN ANCHOR: Highly-classified materials, highly-sensitive information about witnesses.

[05:59:54]

I'm John Berman with Brianna Keilar. That's a lot of "highly's" right there. This morning, that is what the Justice Department says it is trying to protect in its investigation of documents taken from Donald Trump's home at Mar-a-Lago.

In a way, these are the most expansive comments yet from the Justice Department, and they come in a court filing opposing the release of the affidavit that lays out the case for searching Mar-a-Lago.

Now, senators from both parties on the Intelligence Committee and media companies, including CNN, are pushing to see some of that information.

BRIANNA KEILAR, CNN ANCHOR: New reporting this morning from the "Wall Street Journal" reveals Attorney General Merrick Garland deliberated for weeks before approving the warrant application for the Mar-a-Lago search. Senior officials from the DOJ and the FBI met frequently during that time.

Garland now faces an even more daunting and consequential decision whether to pursue criminal charges against the former president or others connected to this.

Katelyn Polantz joins us from Washington with the very latest -- Katelyn.

KATELYN POLANTZ, CNN SENIOR CRIME AND JUSTICE CORRESPONDENT: Brianna, this Justice Department court filing on Monday saying that they don't want the affidavit that backs up the search at Mar-a-Lago released, it really does hint at the seriousness of this criminal investigation and those words, that it implicates highly-classified material, that this investigation implicates highly-classified material that really is a confirmation from the Justice Department that we haven't heard before about the seriousness here.

So remember, this is an affidavit that is a narrative, that explains everything that the Justice Department believes is relevant so far that they've done in their investigation so that they can go to the judge and say, we have probable cause to go into Mar-a-Lago and seize potential evidence of three different crimes. The three crimes they outlined were the Espionage Act, so that's the

mishandling of national defense information, obstruction of justice, and also the criminal mishandling of federal records. So, those are the things that they believed they would find evidence for, that would be explained extensively in this affidavit.

And then, also in this, they are making an argument about why they can't disclose it. They say, if disclosed, this affidavit would serve as a road map to the government's ongoing investigation, providing specific details about its direction and likely course in a manner that is highly likely to compromise future investigative steps.

What they're protecting here is the ongoing investigation. They say explicitly they're protecting witnesses that they've already spoken to. They're protecting grand jury proceedings, so federal criminal grand jury proceedings.

They're also protecting future witnesses, potentially. That is outlined in this filing.

We still are waiting for the judge that oversees the search warrant case to respond here. But these are very strong words from the Justice Department. The judge has already seen and read that confidential affidavit that is under seal.

Of course, Merrick Garland personally approving this search, thinking about it for weeks, is very significant. And in court filings, we cover them all the time; and we know the Justice Department is not cavalier about the words that they choose to put in a filing like this.

KEILAR: No, they certainly are not. Katelyn, thank you for that. Stay with us. I want to bring in Rudy Giuliani's former press secretary, Ken Frydman; CNN senior political analyst John Avlon; and criminal defense attorney Bernarda Villalona.

Bernardo, what they're trying to protect in this filing is what you try to protect in any ongoing investigation. This isn't unusual to see something like this, this rationalization.

BERNARDA VILLALONA, CRIMINAL DEFENSE ATTORNEY: Absolutely. It's not anything different, except that you have the magnitude of the press, and it has to do with the former president.

There are a lot of competing interests here, but most importantly with an ongoing investigation, you don't want to compromise the investigation. You lose the element of surprise, once the world knows what your next steps are.

You can also deal with destruction of evidence. You can deal with witness tampering. You can deal with so many valuables that will completely impede the investigation that it's not worth the risk. BERMAN: Yes, highly-classified information, and then highly-sensitive

information about witnesses, plural, John, and then that could compromise this investigation and others.

Again, I was just surprised to see this much information in one court filing, late yesterday. What do you make of all that, the idea that there are going to be witnesses for other investigations, as well?

JOHN AVLON, CNN SENIOR POLITICAL ANALYST: Well, it's clearly tip of the iceberg, and this is the kind of stuff that probably makes ex- President Trump crazy. Right?

It raises the question of how many people might be talking to the DOJ, how many investigations may be going on, beyond the ones that we already know about.

I will say that, you know, with regard to the DOJ's posture here, it makes sense to try not to be played. We've had a lot of problems come when people play the refs, and the politicization of justice starts creeping in.

I understand the desire for more information. As journalists, we desire that. Look, I think there's a case to be made that maybe the heads of the Senate Intelligence Committee should see it, given the seriousness and severity of this.

But this is clearly something that could compromise an ongoing investigation. And you can't let that be, you know, determined by -- by short-term news cycle demands for, you know, potential people being investigated.

KEILAR: And maybe, Katelyn, not just one ongoing investigation, or this ongoing investigation, but many others. Because there's this nugget in there that says, basically, making the case that it would chill the cooperation, not just in this case, but other -- in other high-profile investigations.

[06:05:18]

But it seems to be making the case that this would set a very bad precedent that would affect the process far beyond this.

POLANTZ: Right. I mean, we do know that there are several investigations around the former president that are going on right now. January 6 is the other one, out of this grand jury in Washington, D.C.

So that is a pretty significant statement from the Justice Department, to say that it could chill future on -- ongoing investigations.

And the other thing about it is that we don't know who the target is here. And there are possibilities that they could find other things in these materials. Or they could decide that there are other crimes to investigate. They may have already even decided that, regarding other people. We also don't know, even, if it's Trump himself that would be

investigated here. But the thing that is -- that was really striking to me about this is we get filings like this all the time in court, where the Justice Department says we want to keep secret something in our investigation. We disagree with the media wanting to unseal.

They're usually just one page and just a couple lines, saying we want to protect the ongoing investigation. I haven't seen something that was ten pages long like this, that really goes a little bit further than what was already said in the court record.

I mean, we have been talking about Merrick Garland calling Trump's bluff, right, by going out, making this -- unsealing the search warrant himself, you know, trying to get that out there, after Trump and his team were putting information out.

But then there's also this additional calling of the bluff that appears to be happening here, where they are saying it's highly- classified materials involved in this investigation, after we have had several days of the ex-president saying I declassified everything.

We've even heard Republicans tell you directly, Brianna, from Capitol Hill, that, you know, maybe they're downplaying this idea. They've said, you know, maybe this information wasn't that -- that necessary to keep secret.

BERMAN: Yes, I'm actually very interested in this line that you're going on right now. You said -- before you said the DOJ doesn't put words or phrases in these types of statements cavalierly. So when they say potentially witnesses for other investigations, they're putting it in there for a reason.

You also seem to be saying the DOJ wanted to get something off its chest here.

POLANTZ: I think that's totally, totally possible. I mean, they would not choose these words lightly. And to be -- to say that this does implicate highly-classified material. I mean, we saw those receipts before, knowing that whenever the boxes were removed, there were documents marked, secret, confidential, on them.

But now those boxes are in the Justice Department's hands. They're reviewing them through a filter team, and also, the investigators would be looking at them. So they wouldn't get ahead of what they're actually looking at here. And to be able to say that is, I think, pretty significant.

BERMAN: Everyone standby. And Ken, I promise, you're first up next time. This is right in your wheelhouse, because this morning, Rudy Giuliani is making his first public comments since learning that he is the target of a 2020 election investigation in Georgia.

(BEGIN VIDEO CLIP)

RUDY GIULIANI, FORMER ATTORNEY FOR DONALD TRUMP: It's just a further desecration of the Sixth Amendment. I was his lawyer of record in that case.

The statements that I made are either attorney/client privilege, because they were between me and him. Or they were being made on his behalf, in order to defend them.

When you start -- when you start turning around lawyers into defendants when they're defending their clients, we're starting to live in a fascist state.

(END VIDEO CLIP)

BERMAN: Giuliani has been ordered by an Atlanta-area judge to appear in person in front of a special grand jury tomorrow. His attorney says he will not answer questions about conversations he had with the former president.

CNN's Nick Valencia is in Atlanta, where this just got very interesting, Nick.

NICK VALENCIA, CNN CORRESPONDENT: It did. It got very, very interesting. Good morning, John.

And despite his best efforts, Rudy Giuliani was trying to delay his testimony because of health concerns. He will now have to appear before that special purpose grand jury, but he will be doing so as a target of Fani Willis's criminal investigation.

For weeks, his attorneys and Giuliani have been trying to get answers from the D.A.'s office as to whether or not he was the target of this investigation. And it was sometime Monday that they received a phone call, according to Giuliani, indicating that indeed he was.

This development is a significant one. It's the first time that someone that's part of Donald Trump's inner circle has been named as a target of this criminal investigation.

Giuliani, in the wake of the 2020 election. This is the whole criminal investigation that the D.A.'s office is investigating here, whether or not there was election fraud, or election interference in Georgia in the wake of the 2020 election.

The -- Rudy Giuliani, the former attorney for the president, or the attorney for the president. He spoke to state legislators here three times to spread conspiracy theories, false election claims about fraud here. Claims that have since been proven to be untrue.

[06:10:07]

Now, getting information out of Giuliani may be a tall task for this special purpose grand jury. An attorney for Giuliani indicated that, while he will appear, he makes no promises about how responsive his client will be -- John.

BERMAN: Right. And if he is a target, he could take the Fifth on just about any question when he is there answering.

Nick Valencia, thank you so much.

VALENCIA: You bet.

BERMAN: We're back with our panel. And Ken, I want to start with you, as someone who worked for Rudy Giuliani. John did also, but you were Rudy Giuliani's press secretary, the target, now, of this investigation. That's a big deal.

KEN FRYDMAN, FORMER PRESS SECRETARY FOR RUDY GIULIANI: That is a big deal. And he's trying to create a smoke screen and to lay as long as possible.

Listen, Rudy flew too close to the sun. He got too close to Trump. He got burned. He knows how DOJ works. He knows how the FBI works. He knows these are meticulous investigations.

I know this is not a popular position with the media, but I think we should take a wait and see, that the affidavit shouldn't be released. I'm doubling back to the earlier conversation.

I know he's -- I know he's nervous. He could have flown to Georgia. You know, he flies all over the world. So that's just a typical tactic to try to postpone the inevitable.

BERMAN: Why do you think he's nervous about the Georgia investigation?

FRYDMAN: Because he knows the truth. He knows he lied to legislators. He knows that he concocted this false elector scheme. You know, he knows he lied for his client. And he knows we all know. It's clear.

BERMAN: What's his next move?

FRYDMAN: Delay, delay, delay. Kick the can down the road. I think, you know, at this point in his life, his goal is to die a free man.

BERMAN: Pretty stark, John.

AVLON: That is stark. And, look, it highlights, I think, the tragedy of his trajectory. But it's a self-inflicted tragedy.

You know, the deal is that Rudy was, as Ken knows, really one of the most respected legal minds of his generation. I remember him telling me many times that, you know, the law is about the search for the truth. And that is not what he is -- is pursuing right now. He's trying to evade the truth, because he's afraid of what will come up.

Now, he is saying, Look, I was acting in the capacity as lawyer. And whether the ex-president ultimately throw him under the bus is yet to be seen.

But I will also say that Rudy Giuliani is someone who said many times on tape, from the Blue Room at city hall, that, you know, you respect the sanctity of the grand jury. They know more than we do.

And so to push back against that as aggressively as he has and to throw around terms like "fascist state" is beneath the man he was and the credibility he once had.

KEILAR: To be clear, Bernarda, about the luck he's going to have pursuing this, yes, delay, but success, probably not. I mean, the judge has said fake electors, you have to comply. Congressman Jody Hice, you have to comply. Senator Graham, you have to show up.

VILLALONA: Exactly. So Rudy Giuliani, you can run, but you can't hide. Your time is up. You have now graduated to be a target.

And now it's your time to appear before this grand jury. He can plead the Fifth. Yes. He can decide, oh, attorney/client privilege, but then you have the crime/fraud exception. But there's so much that can go on. And let's just not forget, Rudy Giuliani also had his license suspended.

KEILAR: That's right. And what does it look like to the grand jury if he takes the Fifth?

VILLALONA: Well, the grand jury's going to take it as it is. I mean, the -- the district attorney who's going to be in the courtroom is going to give that grand jury an instruction as to taking the Fifth, pleading the Fifth, and what impacts it can have.

BERMAN: Just to be clear one thing -- and Ken alluded to this before, and Rudy Giuliani is going to say that anything he said was in defense of his client. Is that an offense? Can you lie as an attorney in defense of your client?

VILLALONA: Well, that's what exactly one of the reasons that got his law license suspended. In fact, the department said in their decision that they cited 35 violations, 35 times that Georgia was mentioned during that investigation, where they ultimately determined that his license needed to be suspended. You can't just run around here as an attorney and just lie to the public.

AVLON: Yes, I think this goes to the question of every client is entitled to a defense. But there's no right to try to overturn an election on the basis of lies.

FRYDMAN: Agreed.

KEILAR: You say this is sad.

FRYDMAN: It's bad.

KEILAR: It's bad? Is it sad?

FRYDMAN: Very bad.

KEILAR: Is it sad, watching this?

FRYDMAN: It's bad and sad, sure. When John and I look back at the great mayor that he was, and the great man he could have been, it's tragic that he wound up like this. BERMAN: A friend, Norm Eisen, I saw him quoted in one of the New York

-- one of the pieces. I think it was in "The New York Times" about this.

It said if Rudy Giuliani is a target, there's no way, Norm says, that Donald Trump isn't also a target of this Georgia investigation. Any chance, based on the Rudy Giuliani you know, that he would -- I don't want to use the word -- turn on Donald Trump, but would in some way, if he needed to save himself, give testimony that might be harmful to the former president?

FRYDMAN: Nobody protects someone else to stay out of jail. That's human nature.

[06:15:09]

So if this is a RICO action, if this is a RICO case, Trump's at the top of the pyramid. And Rudy is one brick below. So they're obviously squeezing him for anything that would incriminate the president.

AVLON: If it's a RICO case, obviously, the irony would be particularly rich. But I will also say --

KEILAR: Because explain that.

AVLON: Well, because Rudy and his team, at the U.S. attorney's office of the Southern District, pioneered the use of RICO statutes to break the back of the mob very effectively. One of the many things he did in his career which deserves a great deal of appreciation and respect.

And I hope he's not solely defined by this last chapter, although this last chapter will overshadow everything else.

BERMAN: It's getting longer, this last chapter.

AVLON: You know, it's not going away. But I will also say I think it's a mistake to judge Rudy as the man he was against who he is now. I think there's a significant departure in terms of his judgment and his -- his character.

KEILAR: We have one life, though, not two, right?

AVLON: Right.

BERMAN: Friends, thank you all so much for being with us this morning.

We are going to speak with former Trump national security adviser, John Bolton. His reaction to the Justice Department opposing the release of the Mar-a-Lago search affidavit.

So, it's primary day, and Wyoming voters will determine the political fate of Congresswoman Liz Cheney, the last of the impeachment ten to face a primary.

A suspect in custody following the deadly shooting of a youth football coach near Dallas. What we are now learning. Plus --

(BEGIN VIDEO CLIP)

MEHMET OZ (R), PENNSYLVANIA SENATORIAL CANDIDATE: I did some grocery shopping, and my wife -- my wife wants some vegetables for crudite, right. So --

(END VIDEO CLIP)

KEILAR: Crudite -- cru-dite, crudite. Mehmet Oz, trying to be relatable as he grocery shops for his wife. How his opponent, John Fetterman, reacted.

(COMMERCIAL BREAK)

[06:21:10]

BERMAN: We have new video this morning that shows the moment a deadly shooting happened at a youth football game in Lancaster, Texas. A warning: you might find this video disturbing.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: (UNINTELLIGIBLE) (EXPLETIVE DELETED) (EXPLETIVE DELETED) (EXPLETIVE DELETED)

(GUNSHOTS)

UNIDENTIFIED MALE: Get down!

(END VIDEO CLIP)

BERMAN: Police Yaqub Salik Talib, the brother of former NFL star and Super Bowl winner Aqib Talib, pulled out a gun and started shooting during an argument between coaches and referees on Saturday.

Several people can be seen fighting, and then five shots rang out. Michael Hickmon, a grandfather and father of three, was killed. He was there coaching his son's team.

Police say Talib has turned himself in, and the incident remains under investigation.

KEILAR: Today, Donald Trump's influence over the Republican Party will be tested once again in the Wyoming GOP primary.

Congresswoman Liz Cheney, one of the ten Republicans who voted to impeach the former president, is facing an uphill battle to keep her seat against Trump-backed candidate Harriet Hageman.

Joining me now is CNN national political reporter Eva McKend with the latest on this -- Eva.

EVA MCKEND, CNN NATIONAL POLITICS CORRESPONDENT: Hi. Good morning, Brianna. Congresswoman Cheney is facing the largest political test of her

career as he trails her Trump-endorsed opponent, Harriet Hageman, and unless an unprecedented number of Democrats cross over and support Cheney in today's Republican primary, it's hard to imagine how she emerges as the winner.

Cheney fell out of favor with her party when she voted to impeach Donald Trump last year and, more consequentially, continued to call out the former president as a threat to democracy.

It's been quite the evolution for Cheney and could represent the end of an era in American politics.

She entered Congress six years ago, a well-known daughter of a former vice president. A solid conservative who voted with Trump 93 percent of the time. But that isn't enough in today's Republican Party.

Her larger mission is to keep Trump away from the party. Take a listen to how she still is trying to appeal to conservatives.

(BEGIN VIDEO CLIP)

REP. LIZ CHENEY (R-WY): America cannot remain free if we abandon the truth. The lie that the 2020 presidential election was stolen is insidious. It preys on those who love their country. It is a door Donald Trump opened to manipulate Americans to abandon their principles, to sacrifice their freedom, to justify violence, to ignore the rulings of our courts and the rule of law.

(END VIDEO CLIP)

MCKEND: No matter the outcome of today's election, Cheney will continue to serve the remainder of her term in the House for the next few months and will still serve as the vice chair of the House Select Committee Investigating January 6th.

Her opponent, Hageman, gained prominence as a natural resources attorney. She falsely claims the 2020 election was rigged -- Brianna.

KEILAR: All right. Eva McKend, thank you for that report.

As the FBI warns of unprecedented threats against the agency, a man in Pennsylvania charged with threatening to kill agents after the Mar-a- Lago search.

BERMAN: Plus, the shift in Americans' exercise habits hitting fitness giants hard and why companies including SoulCycle and Peloton are breaking a sweat.

(COMMERCIAL BREAK)

[06:28:40]

KEILAR: New this morning, more signs that Americans' workout habits are changing as the cycling boom we saw during the pandemic kind of goes bust. SoulCycle is closing 25 percent of its studios, and this is coming as

at-home workout systems like Tonal, Peloton, and iFIT are also struggling, while some gyms are seeing a spike in membership.

CNN chief business correspondent and "EARLY START" anchor Christine Romans joins us now on this trend. What are we seeing?

CHRISTINE ROMANS, CNN CHIEF BUSINESS CORRESPONDENT/ANCHOR: Changing behaviors 2 1/2 years into this. You know, Peloton announcing some layoffs and some changes last week, SoulCycle closing 25 percent of its studios.

And Planet Fitness saying they're having a great year and a record number of new members. So what you're seeing is people are -- that at home or going to the Soul Cycle, which for a couple of years was the only thing you could do, right?

KEILAR: Yes.

ROMANS: Now people are going to the gym. They're creeping out and going back to work, and behaviors are changing once again here. You can see what those Soul Cycle closures are across the country, several of them in New York, some in California.

Peloton also announces layoffs and closing some retail locations, as well. So we saw that pandemic boom, right, for names like this. And now it's fizzling again, and people are changing their behaviors all over.

BERMAN: That map, Canada, anti-SoulCycle, a lot of red. Like, they don't like to peddle in Canada, no matter what. Like, peddling is not good in Canada. It was all red.

ROMANS: It was, like, a really elite thing. And you could go -- I mean, a lot of people were working from home bit still going to SoulCycle. And --

[06:30:00]