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Judge May Release Mar-a-Lago Search Affidavit; Georgia Election Interference Probe Intensifies; Russia, Ukraine Accuse Each Other of Attack Plot at Nuke Plant; Afghans Reflect on Life Since U.S. Withdrawal. Aired 6-6:30a ET

Aired August 19, 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: "Willful retention of national defense information." Do those specific words create specific legal jeopardy for Donald Trump?

[06:00:09]

I'm John Berman with Brianna Keilar. And Judge Bruce Reinhart released several procedural court documents used to justify the search of Mar- a-Lago, providing new details and maybe a sharper focus on the president himself as a potential subject of a criminal probe.

This is the document that was released, and there is specific information in here about willful retention. In other words, they say he knew he had documents, and he knew what they were.

So this is all part of the argument over whether to release the affidavit justifying the search of Mar-a-Lago. Prosecutors made the case for secrecy, because they say evidence might be destroyed. But the judge set in motion the possibility of releasing a redacted version of the affidavit, and that process will really kick into gear as soon as next week.

BRIANNA KEILAR, CNN ANCHOR: And ludicrous, ridiculous, B.S., those words and phrases coming from some of former -- some former Trump senior officials, who are scoffing at the former president and his allies' argument that he had a standing order to declassify documents he took from the White House.

CNN reached out to 18 former top Trump administration officials, and all of them told us they never heard of any such order being issued during their time working for Trump. We're going to have more on this in a moment.

But now let's bring in Katelyn Polantz, who has more on this newly- unsealed document -- Katelyn.

KATELYN POLANTZ, CNN SENIOR CRIME AND JUSTICE CORRESPONDENT: Well, Brianna, we had these four different documents released in this case yesterday, and they really normally would appear to be pretty procedural. They might be not that exciting by name: a cover sheet, a request to keep under seal, an order sealing documents in this search warrant case. But in court, you read every word very closely, especially when it is written by the Justice Department to a judge.

And on this cover sheet of the search warrant, it does disclose a little bit more information about exactly what is being investigated here, specifically that one of the offenses under the Espionage Act that's being investigated is the willful retention of national defense information.

So someone who had access to national defense information and then decided to retain it in a way that is against the law. That certainly seems to point to Donald Trump, who would have had access as president, may now no longer have access.

We don't know if he's the target of this investigation. There could be many targets. But it certainly does move us a little bit closer to understanding exactly what's being investigated here.

There are some other things that were revealed in these newly-unsealed records yesterday, as well, such as why this search was so necessary to do two things, one, that investigators did want to get back items that were illegally possessed, but they also were, indeed, looking for evidence of a crime.

So that's what those boxes and documents would have became, taken out of Mar-a-Lago. That is evidence, not just things the government wanted to get back.

And then finally, the other thing that we learned was in the sealing request, when the Justice Department went to court and said we want to keep this all under wraps before we do this search warrant, one of their reasons was that they had a fear evidence might be destroyed. They wrote those words to the judge.

So that's these new documents. All of that said, the substantive piece of information, the thing that lays out the entire course of the investigation so far why that search was absolutely necessary is that affidavit. We still have a week or so of the Justice Department trying to negotiate redactions with the judge. And so we're going to have to see if we learn anything more with that, if it is released ultimately.

KEILAR: All right. Katelyn, thank you for that.

BERMAN: All right. Here with us now, CNN senior legal analyst, Elie Honig; CNN political commentator Errol Louis; and assistant professor of law at Brooklyn Law School, Alexis Hoag-Fordjour.

Professor, let me start with you, because this phrase, "willful retention of national defense information," evokes a couple very important Latin words in the legal profession, and they are --

ALEXIS HOAG-FORDJOUR, ASSISTANT PROFESSOR OF LAW, BROOKLYN LAW SCHOOL: I hope you don't ask me to translate this. I think what's key about the Espionage Act is that, as lay people, I think it's this idea that whoever is charged with that kind of crime needs to be some high-level spy, needs to be giving information out. But actually, the willful retention of documents, sensitive documents, is enough to constitute a crime. That's a pretty low threshold. And I think that underscores the fact that it might not just be Trump but those surrounding him that -- that could have violated federal law.

BERMAN: I guess what I'm getting at, mens rea, what does that mean?

HOAG-FORDJOUR: Mens rea. So most crimes -- all crimes require a mens rea, a mental state, and then an actus rea, some type of action.

And so here, just the mere retention, hanging onto documents, knowing that someone had asked for them. This is -- let's step back -- an 18- month process, beginning with National Archives noticing that certain documents were missing, requesting those documents.

People in Trump's camp saying, OK, we've got a few documents. Here you go. That's all the documents. But it wasn't. And so here we have the federal government, Department of Justice, having to subpoena information, and then, of course, now we know issuing a warrant to search the president's residence.

KEILAR: He's just saying, No, I'm not going to turn this over. Yes, I know what they are. Yes, I know that you want them. No, I'm not turning them over.

ELIE HONIG, CNN SENIOR LEGAL ANALYST: That's really the gist of this charge. Alexis makes a couple good points.

First of all, as a prosecutor, you don't shoot for the highest possible statute. You don't have to go right to the James Bond stuff if there's an easier way to get there. And this -- the description of the crime that we now see in this document, willful retention of national defense information, that's the easiest way to prove it. That's smart strategy.

And willful. Yes, willful just means knowing what you're doing and understanding the illegal nature of it here.

Another important point, though, these -- they're not charges yet, but these alleged crimes that underlie the search warrant, they're not specific as to any person. So when you get a search warrant, you don't have to go to a judge and say, We believe Errol Louis -- sorry, Errol -- Errol Louis committed these crimes. But you say -- you have to say -- you sort of phrase it in the Nixonian passive voice. We believe that these crimes were committed. Now, I think, it's Donald Trump's residence. But it could be anybody, as well.

BERMAN: There are those who are reading into this, though, Elie, and when they say the -- see the willful retention of national defense information, they think that somehow implies Donald Trump's will and the physical, you know, actuality of it being national defense information, he was the only one who could have possessed it. So they see that maybe focusing in more on him specifically.

HONIG: I think that's very logical. I mean, he would be the first person who comes to my mind. And who calls the shots about, Hey, those documents are coming, or those documents are getting sent back? I think it stands to reason -- and it would shock me if it was anybody but Donald Trump.

KEILAR: The basis for the search, and there's checked boxes in this new document released, it doesn't include that the information was intended for use or used in committing a crime. And I wonder if that gives Donald Trump at least, you know, when it comes to optics, something to hang his hat on. I was just holding onto these.

LOUIS: Well, it's entirely possible. There was some reporting, some good reporting, about how he was very proud of the letters that he got from Kim Jong-un, that he liked to show it around. You know, I got a letter from a head of state. This sort of a thing. He could try that as an alibi, but as Alexis said, I mean, the law doesn't really allow for that.

You read through the wording of the statute, it says, even if you lawfully possessed it, you can be in violation of the law. Because once they -- once a credible authority asks for it back and you refuse to do it, you're off in some other territory.

And I think that's what we're going to probably find the government trying to -- the Department of Justice trying to establish.

Whatever Donald Trump is going to say, I mean, it's been this, you know, moving target, right? I mean, first, he said the FBI planted it. You know, then they've attempted in the last few days -- I hope this goes away -- they've attempted this ludicrous idea that everything gets declassified automatically the minute you take it out of the White House, because Donald Trump said so, even though there's not a scrap of paper anywhere to memorialize that or to justify it.

BERMAN: Errol, it just so happens that CNN has some reporting on that very subject.

Jamie Gangel and her team talked to 18 former officials in and around the inner workings of the White House when Donald Trump was there, and they all say the same thing: there was no standing order to declassify.

John Bolton, the former national security advisor, on this show said it's a complete fiction. In the article, Jamie's article, it includes quotes from John Kelly, former chief of staff; Mick Mulvaney, former chief of staff. These are people who would necessarily know about a standing order.

LOUIS: That's right. That's right. Olivia Troy, the national security adviser to Vice President Pence. All of them are saying on the record this didn't happen. This couldn't happen. You know, which is, I guess, more to the point, that you -- you can't say that something is going to be classified in Washington, D.C., but once you put it on a plane and take it to his vacation home, now it's declassified. It just doesn't even make sense.

And to the extent that the president does have broad declassification powers, those don't exist in a vacuum. You have to tell somebody. You have to tell the national security adviser. You have to tell the CIA. You have to tell somebody that this document is declassified, because that's the meaning of it, is that everybody in the government knows that this document has been moved from one category to the next.

KEILAR: Which makes it clear that's not a real legal defense. That's just about a message that he's putting out to his supporters. It's just for optics.

HOAG-FORDJOUR: Exactly. And I think what's really important to note is that, even if the president had declassified this information, if that was actually a policy, it wouldn't make a difference in terms of defense of the Espionage Act which, again, as we opened with, is that it just constitutes the willful retention of, essentially, sensitive information. It doesn't have to have a specific categorization.

And so the declassification is immaterial to whether or not Trump or anyone in his camp violated federal law.

[06:10:04]

HONIG: The same goes for all three laws --

HOAG-FORDJOUR: Exactly.

HONIG: -- that they list, by the way, that may have been intentional.

BERMAN: All right. I want to bring up a different investigation. This is in Georgia, where the Fulton County D.A., Fani Willis, is looking into Donald Trump and people associated with their efforts to overturn the election results in Georgia.

The Georgia governor, Brian Kemp, has been subpoenaed to appear before this grand jury. He's fighting that subpoena. He doesn't want to do it, because he says at this point, this investigation is political, and it's pretty close to his reelection battle.

His opponent, Stacey Abrams, talked about this last night. Let's listen to what she said. (BEGIN VIDEO CLIP)

STACEY ABRAMS (D), GEORGIA GUBERNATORIAL CANDIDATE: If you look at the emails that have been released about the back and forth and having dealt with the Kemp administration, I would actually put my faith more in the Fulton County D.A.'s office.

I know that this has been a meticulous and very thoughtful investigation and that he is not the only Republican who's tried to skirt his possibility to provide information.

(END VIDEO CLIP)

BERMAN: Elie.

HONIG: So I did a double take when I heard that last night on Erin Burnett's show. And Stacey Abrams said the same thing later in the show. She said it twice.

This is a meticulous investigation by the D.A.'s office. How on earth would Stacey Abrams know that? Stacey Abrams is a civilian, no different than any of us. She's not a public official. She's not part of the prosecutor's office.

So there's two possibilities here. One, which I hope it's not -- it better not be -- is she's being briefed on this behind the scenes by the prosecutor's office. That would be wildly inappropriate, all sorts of crossed wires, politics and prosecution.

The other is she made it up. There's sort of a middle ground here where she's rooting for this investigation.

And let's keep in mind, Brian Kemp, her upcoming opponent in the gubernatorial race, has received a subpoena. He's now in a battle with Fani Willis. And to me, this sort of underscores it. There are real political problems going on here, and we're starting to see politics infect this investigation.

Not long ago, a judge in Georgia disqualified Fani Willis from one of her subpoenas. He said, You have a political conflict of interest. He said something along the lines of, I don't know what you were thinking. She had done a fundraising for the political opponent of someone who she had subpoenaed.

And now when it comes to Brian Kemp, Kemp's argument is you, the D.A., have politicized this by waiting so long. And the fact is, the D.A. shot back hard, but the reality is the D.A. took a year and a half, from January -- this tape, the Raffensperger tape, came out in January of 2021, until this summer to seat a grand jury. A couple months before that election.

Now, Fani Willis says you're the one stalling, Brian Kemp. He got subpoenaed three weeks ago. So who's more to blame here, the year and a half delay or the three-week resistance?

KEILAR: That comes down to this investigation, is the legitimacy of it threatened here? Is it politicized? Whatever the outcome, are there going to be questions around it?

LOUIS: Well, there are going to be questions. I mean, there -- it's grinding to a halt, frankly. And this is -- look, this is part of what comes from having elected prosecutors. Right? I mean, there are other systems around the world where they don't do it this way.

But for Fani Willis to go to a fundraiser, which is what an elected official does, that's sort of her night job. Meanwhile, the day job is now going to be sort of imperiled, in part because the integrity of it can't -- I mean, it has to be questioned.

You know, so, look, Brian Kemp has a point. Some of this could be negotiated. One would hope that all of these public servants, who after all, the taxpayers are, you know, funding their salaries, that they would sit down with a bunch of lawyers and they would say, Look, this is what we'll do. This is what we're not going to do. This is what we'll talk about. What information do you need? Maybe we'll do written interrogatories.

But you know, you -- you've got to make sure that the investigation, which is more important than any of these individual officials, is done properly.

You know, there's something really serious here. This fake electors scheme, the president's lawyer being deposed, the sitting governor being subpoenaed, it's really, really serious stuff. I think Fani Willis may have bitten off more than she can chew.

BERMAN: Errol Louis, Elie Honig, Professor, thank you all so much for being with us this morning.

The Ukrainian nuclear power operator claims Russian plans to disconnect units at a nuclear power plant as tensions there escalate. We are live on the ground in Ukraine.

And a widening drought and a water crisis in the West. Can desperate measures reverse the damage?

KEILAR: Plus, CNN's Clarissa Ward touring a Taliban stronghold in rural Afghanistan and the site where a helicopter full of U.S. Special Forces was shot down.

(BEGIN VIDEO CLIP)

CLARISSA WARD, CNN CHIEF INTERNATIONAL CORRESPONDENT: So he's taking me to the spot where he says his brother shot down a Chinook.

(END VIDEO CLIP)

(COMMERCIAL BREAK)

[06:18:40]

BERMAN: This morning, fears are growing over the fate of the largest nuclear plant in Europe, which is right now in the middle of a war.

Ukraine and Russia accusing each other of plotting to attack the Zaporizhzhia plant and risking a catastrophic release of radiation.

CNN's Sam Kiley is live for us in Zaporizhzhia, Ukraine, with the latest on this. Sam, what can you tell us?

SAM KILEY, CNN INTERNATIONAL CORRESPONDENT: Well, Brianna, yesterday, we were on the Ukrainian-held side of the Dnipro River, looking out at the Zaporizhzhia nuclear power plant and talking to villagers who had been shelled from that plant directly.

The Ukrainians are saying that they are not attacking back and accusing the Russians of a provocation. The Russians meanwhile -- excuse me -- making similar claims.

But we do know from images that we've verified, that Russian vehicles, military vehicles are even inside some of the buildings, inside that location. And today the Russian authorities have said that they are going to reinforce it militarily.

This flying in the faces of international demands from, lately, Turkey, the United Nations, of course, Ukraine and others asking Russia to demilitarize that nuclear power station, to take it out of the line of fire, get inspectors in, and get it under control.

But the Russians are ruling that out of hand, saying that they don't -- they didn't demilitarize, because they want to protect it.

[06:20:06]

And ultimately, they've also announced that had they want to try and move its capabilities to provide electricity away from Ukraine and into the illegally-occupied Crimean Peninsula, where Russian -- which Russia captured in 2014.

That is, itself is fraught with technical difficulties and among the reasons why people are so concerned that there could be, if not a military breakdown then a technical breakdown at this very large nuclear power plant -- Brianna.

KEILAR: Sam, are people prepared? Do they have iodine tablets? I mean, what are they -- what are they bracing for?

KILEY: There has been some drills here on the Ukrainian side, Ukrainian authorities. Again, we don't know whether this is propaganda stunts to try to paint the Russians to look even more irresponsible than they already have been.

There is not a mass issuing of iodine tablets, but there is deep, deep concern here in Zaporizhzhia and even closer to the nuclear power station that some kind of accident, even a relatively small one, could be catastrophic for the communities nearby -- Brianna.

KEILAR: Certainly would be. Sam, thank you for that.

BERMAN: All right. Joining us now is Joseph Cirincione, a distinguished fellow at the Quincy Institute and author of "Nuclear Nightmare: Securing the World Before It's Too Late."

Joe, we're talking about the largest nuclear power plant in Europe. The rhetoric is so hot right now. What do you see as the greatest risks?

JOSEPH CIRINCIONE, DISTINGUISHED FELLOW, QUINCY INSTITUTE: Well, this is an unprecedented crisis. We've never had a nation occupy the civilian nuclear power plant of another nation, let alone turned it into a military base, moving artillery and ammo into the facility.

Some of the video you were showing was shot by a worker in the plant, showing that the Russians have moved trucks inside some of the turbine buildings there.

Now, you're worried about the six reactors that are at the plant, plus the 3,000 spent fuel rods. All are protected by reinforced concrete structures, but no structure is designed to maintain its integrity after a sustained artillery or rocket attack. In the case of the spent fuel flasks, even heavy machine gunfire would damage these.

Or a loss of power. That could shut down the reactor cores, a meltdown, a loss of water to the plant or operator mistakes could cause a Fukushima or a style meltdown of these reactors.

And then you're worried about radioactivity spreading over tens, hundreds, even thousands of square kilometers, contaminating the soil, the water and the air around the plant and far into the rest of Ukraine and even Russia itself.

KEILAR: And Joseph, it doesn't seem that there is much preparation that is going to prevent if there is the ramifications of some sort of event.

CIRINCIONE: Well, the iodine tablets you spoke about is something you would do to prevent radioactivity being absorbed by the thyroid, but radioactivity can come into the body in a variety of ways.

So no, there's not much you can do in case of an accident. That's why international officials are ringing the alarm bells. You hear them at the highest level, the secretary-general of the United Nations saying that Russia's occupation is suicidal.

The head of the International Atomic Energy Agency saying the plant already is out of control. The head of the World Health Organization saying that we're on the brink of a nuclear catastrophe.

Officials at the highest levels are warning us that urgent action must be taken. Zaporizhzhia is a ticking nuclear time bomb. Unless we take urgent action, it will detonate.

BERMAN: That's a pretty dire warning right there, and another thing Joseph points out is that the Russians know all of this. They know precisely what the risks are and what they're doing.

Joseph Cirincione, we thank you so much for being with us this morning.

CIRINCIONE: Thank you.

KEILAR: A deadly month in Afghanistan. The U.N. mission there reporting the highest number of civilian casualties this year. At least 250 people killed or injured here in recent weeks.

The latest here at a Kabul mosque during evening prayers on Wednesday, where an explosion killed at least 21 people and injured dozens, including nine children, according to local police.

Despite the violence, some Afghans say they're relieved that U.S. troops have left. CNN's chief international correspondent, Clarissa Ward, has more.

(BEGIN VIDEOTAPE)

WARD: Good morning, John and Brianna. We traveled to the Tangi Valley. It's less than 50 miles from the capital city here of Kabul, but whereas many here were devastated when the Taliban took over, there it's a very different story.

WARD (voice-over): There were no tears in the Tangi Valley when U.S. forces left Afghanistan. The landscape is awash with white flags, marking the graves of Taliban fighters killed in battle.

Among them is the son of Nabi Mubarraz (ph).

WARD: This is your son?

[06:25:03]

WARD (voice-over): He tells us he was killed during a U.S.-supported Afghan Special Forces night raid on the family home in 2019.

Video of the aftermath shows the scale of the destruction. After a protracted gun battle, the house was leveled, killing a second son of Mubarraz's (ph), as well as his niece and her daughter.

"There was a lot of blood spilled," a voice says off-camera.

The rebuilt living room is now a shrine to the dead.

WARD: What was your reaction when American forces left a year ago?

WARD (voice-over): "I said that peace has come to Afghanistan," he says. "There will be no more mothers becoming widows, like our mothers and sisters who were widowed, and our children killed."

Across this rural Taliban stronghold, American forces were seen as invaders, who brought death and destruction with their night raids and drone strikes.

Peace has brought a chance to air long-held grievances. At the local market, we're immediately surrounded.

"Every household had at least one fighter," this man tells us. "And every house had people who were killed by the Americans and their drones. And we are proud of that."

Shere Mohammed Hamas (ph) is treated like royalty here. His brother is believed to be responsible for downing a helicopter full of U.S. Special Forces.

WARD: So he's taking me to the spot where he says his brother shot down a Chinook.

WARD (voice-over): It was August 6, 2011. Hamas (ph) says his brother was hiding behind the trees and shot the Chinook down with an RPG as it prepared to land by the river. Thirty Americans were killed, the single greatest loss of American life in the entire Afghan war.

"There were a lot of celebrations, and not just here," he tells us. "It was a big party."

WARD: I'm sure you can understand that it's -- it's hard to hear that people were celebrating about the deaths of dozens of Americans? WARD (voice-over): "This was a heroic achievement, because the people

who were killed on this plane, they were the killers of Osama bin Laden," he says, "and Sheikh Osama is someone who was the crown on the head of Muslims. So definitely, the people were happy about this."

Days later, the U.S. says it responded with a strike that killed Hamas's (ph) brother. Another white flag raised in a valley where martyrs were made and views hardened.

WARD: While the people of Tangi Valley may be happy that the security situation is a lot better, they still face major challenges in the form of poverty and hunger.

And when you walk around some of these rural areas, John and Brianna, it's just so striking how little development there has been. All those billions of U.S. dollars that were pumped into Afghanistan funding infrastructure, very little of that trickled down to communities like the Tangi Valley.

(END VIDEOTAPE)

KEILAR: All right. Our thanks to Clarissa for that. That's why we've been asking her, you know, what's the difference in Kabul versus in rural areas, you hear very different things.

BERMAN: And what is life like, day in and day out? It's so important to see that. Our thanks to Clarissa.

The ongoing mega-drought means fresh water cuts are coming to several states in the West. How this could ultimately affect all Americans.

KEILAR: Plus, a looming September showdown. Giant corporations demanding their employees return to the office after Labor Day.

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