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New Day

Judge Bruce Reinhart Releases Court Documents Used to Justify FBI Search of Former President Trump's Residence at Mar-a-Lago; Senate Minority Leader Mitch McConnell Says Republicans May Not Gain Control of Senate in Midterm Elections; 3 Men Charged in Prison Killing of Mob Boss Whitey Bulger. Aired 8-8:30a ET

Aired August 19, 2022 - 08:00   ET

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


[08:00:00]

BRYNN GINGRAS, CNN CORRESPONDENT: And making for an unforgettable moment for the newlyweds.

Brynn Gingras, CNN, Boston.

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JOHN BERMAN, CNN ANCHOR: I love this story so much, particularly because it's in Boston. It's a wicked good story, as they say. The only thing that would make it better if they had stopped by Dunkin' on the way to the island.

BRIANNA KEILAR, CNN ANCHOR: But it to me, it seems like a plot twist for "The Hangover 4." Maybe they'll incorporate that in there.

NEW DAY continues right now.

"Willful retention of national defense information," do those words create specific legal jeopardy for Donald Trump? I'm John Berman, with Brianna Keilar. And Judge Bruce Reinhart released several 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 this criminal probe. This is one of the documents right here. And there is specific language in here about willful retention of documents. In other words, they say, he knew he had them and knew what they were.

This is all part of the argument over whether it will release the affidavit justifying the search of Mar-a-Lago. Prosecutors made the case for secrecy because they say evidence may be destroyed. But the judge did set in motion the possibility of releasing a redacted version of the affidavit, a process that could kick into gear next week.

KEILAR: And ludicrous, ridiculous, B.S., those words coming from several former Trump officials who are scoffing at the former president and his allies arguments that he had a standing order to declassify documents he took from the White House. CNN reached out to 18 former top officials, and all of them told us they never heard any such thing. We'll have more on that in a moment.

BERMAN: First, though, let's bring in Katelyn Polantz with more on these newly unsealed documents that I've been looking through. It's not a ton of words here, but, man, do the words matter, Katelyn.

KATELYN POLANTZ, CNN CRIME AND JUSTICE REPORTER: They really do. They always matter. You look very closely at those words the Justice Department uses in court when they're talking about ongoing investigations, things like this. And in this case, they did unseal yesterday this judge after this push for transparency by the media organizations including CNN. The judge unsealed a couple procedural records around this search warrant and the search of Mar-a-Lago. One of those was the cover sheet for the application for the search warrant, and it laid out all of the specific statutes, the reasons that the Justice Department believed they needed to go into Mar-a-Lago and seize these boxes, both as evidence and also as items that were potentially illegally possessed, that needed to get into the hands of the federal government.

Again, those words, "willful retention of national defense information," that is on this cover sheet, and those words are the specific part of the Espionage Act that is being investigated here by the Justice Department. They have probable cause to go into Mar-a-Lago to do this search. And the reason why that is so significant that we're looking at those words in particular is that it implies that it is someone who had access to national defense information, rightfully so, and then willfully retained it, so kept it after they were able to. That certainly appears that it could be the former president who would have had access as president and then lost that ability after his presidency, making it very possible here that Donald Trump is a subject of this investigation, potentially with others.

We're still trying to learn more, though, through that affidavit that is under seal and that is going to go through that process with the judge to potentially be released at some time.

BERMAN: Katelyn Polantz, you've been doing wonderful work on this almost every hour of every day. Thank you so much for being with us this morning.

KEILAR: And joining us now, CNN legal analyst Norm Eisen and director at the Center on National Security at Fordham University Law School Karen Greenberg. This willful retention of national defense info speaks in some ways to intent here.

NORM EISEN, CNN LEGAL ANALYST: It does, Brianna. And under the relevant statute, the Espionage Act 793, you do have to have some corrupt intent. It is not enough just to have the documents.

And I think when you put it together with the rest of the new information we got, and this is only the tip of the iceberg, these are only the relatively scant details. Imagine when we get the redacted affidavit. But when you put it together, it really explains the theory of the case that they're going to be moving under, that the president had this sensitive information, put it together with what they say about obstruction of justice. He had this sensitive information, he hung on to it. He hung on to it intentionally. So that seems to be the case they're putting together, the pattern -- over and over again they ask, over and over again he refused.

[08:05:06]

BERMAN: We're talking about the offense description here, I'm reading off the document, concealment or removal of government records, obstruction of federal investigation. And, Karen, as Norm points out here, they said, DOJ said yesterday this is only just beginning. What do you see in this?

KAREN GREENBERG, DIRECTOR, CENTER ON NATIONAL SECURITY AT FORDHAM UNIVERSITY LAW SCHOOL: I see a lot of trouble for the former president. I think they're sort of laying it out bit by bit. It's almost like the January 6th committee did of telling us a little bit at a time and then more and more. I think the obstruction charge is extremely important. It carries a potential penalty of 20 years. And it is starting to look like these three statutes that they mentioned are all relevant. And so it is not -- we knew that there were documents that were taken, that were kept. We knew that we thought it was willful retention in the way it was late out.

But the real issue is, to norm's point, what was the intent? And we're going to start to get a sense of what was in the documents slowly over time. We have gotten a little bit. And as we do, it is going to be extremely important. And I think we are at the beginning of this story, but we're not at the beginning of the Donald Trump story in terms of his removal of evidence, refusal to issue reports, refusal to let notes be taken, et cetera. So this is a pattern we have seen from the very beginning, and now it is catching up with him.

KEILAR: Norm, you mentioned the affidavit as if it's a foregone conclusion it will be released. So you think it is going to be released. But if so, is it going to be so redacted that it doesn't tell us much? What do you think?

EISEN: We're reading the tea leaves in Judge Reinhart's announcement. But having gone to court now and dealt with the judges for over three decades, I think he has signaled a serious determination to make as much information as possible to the public, consistent with not burning the identity of informants, not allowing further obstruction. After all, we found probable cause of obstruction, this affidavit is a roadmap. So anything that could allow more obstruction has to be redacted. Obviously, classified information is going to have to come out.

But we'll see when it comes out, but I think that still leaves a lot. And that is also going to be very challenging for the former president because this is the government's side of the story only, probable cause that crimes, three crimes have been committed. So even in redacted form, it could be very damaging. And the redactions might just make it even more tantalizing, like a coming attractions trailer.

BERMAN: The judge may have a serious determination to release it, but DOJ has got a serious determination not to. I saw you shaking your head a few times. GREENBERG: I'm not so sure the classified information will come out

and --

EISEN: It won't. I think that will be redacted. It will come out of it.

GREENBERG: Yes, yes. OK, good, because I actually think that the DOJ is going to fight this as much as they can for a lot of reasons. That makes sense. The integrity of the investigation, the avenues of which they're going after it, the potential of retaliation against people who are mentioned if they're revealed. I think they'll fight it. I think ultimately there may be some kind of compromise that will come here largely because this is a department and this is an administration, and particularly the national security division which is handling this, which is basically trying to say, we're trying to restore the rule of law that was compromised.

And so I think they will try to maybe not go the extra mile, but go the extra yard to try to -- to try to make some kind of concessions here. So I don't think they'll do it easily or willingly, but I think they might do it for that reason among others.

KEILAR: Ambassador, Karen, thank you so much for this conversation.

EISEN: Thanks, guys.

GREENBERG: Thanks.

KEILAR: And listen to this. Senate Minority Leader Mitch McConnell lowering expectations -- don't listen to this. Listen to me. Listen to me.

BERMAN: I'm listening to you. I listen to you all the time. I like it. I was listening already, but I'm always happy to have a reminder to listen to you more.

KEILAR: Thank you, and I will issue them.

OK, so Mitch McConnell saying this about the possibility, or maybe not, that Republicans will take back control of the Senate in November's midterm elections as the political landscape shifts. I want to get now to CNN's Melanie Zanona with some new reporting on this. He's raising this possibility. It might not happen. And so we listen carefully when he does that, Mel.

MELANIE ZANONA, CNN CAPITOL HILL REPORTER: Yes, Mitch McConnell chooses his words very carefully. And so it's interesting that he says this. It's very clear to me that he's trying to sound the alarm and send a message. And he also mentioned candidate quality, which I believe a subtle dig at Donald Trump, because a number of his backed candidates have struggled to raise money and pull away in the polls.

And it's really easy to see why Mitch McConnell is frustrated here. Just look at this past week alone. A super PAC aligned with Mitch McConnell has had to come to the rescue of Republican J.D. Vance in Ohio. [08:10:01]

That is a state that Joe Biden lost by eight points in 2020, and they are now pouring $28 million into that race. Then you look at the Senate GOP's campaign arm. They have had to cut spending and shift around spending in order to preserve resources because a number of their candidates are struggling to raise money.

And then you have the nonpartisan "Cook Political Report" which just yesterday moved the open Pennsylvania Senate race from the tossup column into the lean Democrat column. And that was already seen as one of the Democrats' best pickup opportunities, and Dr. Mehmet Oz, the Republican candidate backed by Trump has been struggling. And so Democrats have all these reasons to have hope that they actually could hold on to the Senate.

But we should mention a few caveats here. They are still facing tough political head winds. Joe Biden's approval ratings are still hovering in the 40s. And Republicans only really need to flip, or net at least, one seat in the Senate in order to win back the majority. And so Democrats still have a long road ahead of them, but there is this renewed sense of optimism that really wasn't there a few weeks ago. Brianna, John?

BERMAN: Let me try this. All right, listen to this --

(BEGIN VIDEO CLIP)

SEN. MITCH MCCONNELL, (R-KY) SENATE MINORITY LEADER: I think the -- there is probably a greater likelihood the House flips than the Senate. Senate races are just different. They're statewide. Candidate quality has a lot to do with the outcome.

(END VIDEO CLIP)

BERMAN: Candidate quality, Melanie, that's what you're talking about right there.

ZANONA: Yes, exactly. That is very clearly a dig at Donald Trump. And Democrats argue about a number of these Trump-backed candidates are flawed, and it is going to be easier to beat them in the general election.

And meanwhile, Democrats have also benefitted from this recent burst of legislative activity. They recently signed their climate and healthcare bill into law. Inflation and gas prices, while they're still high compared to last year, they have started to come down, and we are also starting to see signs that the overturning of Roe v. Wade has energized Democratic voters. So like I said, there is just this renewed sense of optimism among Democrats in the Senate.

KEILAR: All right, Melanie, thank you so much for that reporting.

BERMAN: Joining us now, CNN anchor Chris Wallace. He's the host of "Who's Talking to Chris Wallace." Chris, Mitch McConnell, not a man of many words or few words, but precise words, like each word carefully chosen. So why is he telling us this now?

CHRIS WALLACE, CNN ANCHOR: Well, I've been sort of riddling that myself over the last 24 hours. You're exactly right. McConnell doesn't say a single unguarded thing, and you would think even if he believes that Republicans are in trouble and taking back the Senate, why would he say that? It's certainly not going to be good for fundraising.

And I think Melanie put her finger on the two reasons, one, hoping that it will get those Republican candidates and their donor base energized again, not to take the idea that the Senate is going to go with the House and flip to Republicans, and, two, maybe to take a shot at Donald Trump because it seems in a lot of these races, Herschel Walker, in Georgia, Mehmet Oz in Pennsylvania, that President Trump in terms of his endorsements and backing went more for celebrity than he did for candidate experience, political experience. A lot of these people are being dismissed as amateur candidates.

Pennsylvania, just a classic case, in the last few days, what is being called crudites-gate because Mehmet Oz did a video, perfectly sensible, the price of everything going up, he went to a store. First, he called it Wegner's, when Wegmans is the name of the grocery chain, which is very popular in Pennsylvania. And then he said look, instead of just saying, look at the cost of broccoli or carrots, or whatever, he said my wife wanted to make a crudites plate, and I'm not sure in Pennsylvania that that translates very well.

KEILAR: No, it didn't. That was actually an old video that got recycled into the atmosphere in a way that certainly Fetterman really liked as he's facing some of his own questions about his health, and it's really giving him a chance to kind of push some of those to the side. When you see that candidate quality comment, do you take that to mean McConnell, Chris, is basically saying, like, yes, we should be able to prevail in this environment, and it's sort of our own fault as a party, or whoever's fault it is, that we aren't?

WALLACE: Yes. Let me just say, you know, in the first midterm after a new president takes office, his party tends to lose seats. I think that's an average since World War II of losing 23 seats in the House. But it's a little different in the Senate. It is only one seat lost in the Senate on average. And McConnell is right, Senate races are different than House races. Oftentimes people aren't nearly as invested in their local congressmen, and it tends to go more with the flow of how people feel about the country, if they don't like the direction of the country, if they don't like the way the president's party, the new president's party is governing, then they're going to vote out their congressmen.

[08:15:17]

Senate races are much more about those personalities. You can become much more invested. You're for John Fetterman or Mehmet Oz, Herschel Walker or Raphael Warnock. And so it does make a difference.

But, yeah, I think there is an argument that this is a bad year for Democrats. There's a lot of reasons, you know, the white direction, long direction is heavily negative for Democrats. Joe Biden's approval rights are still around 40 percent, way under water, so if Republicans failed to pick up the Senate at this point, you could argue whether it is Trump or something else, that it is on the Republicans themselves.

And it will also probably as a statement about Mitch McConnell' deep felt desire, there is nothing he wants more than to regain the position of Senate majority leader and among other things that would allow him to block Biden legislation and especially Biden nominees to the various courts.

JOHN BERMAN, CNN ANCHOR: So, Chris, there was this hearing before a judge in Florida over whether to release the affidavit to justify the search warrant into Mar-a-Lago. Donald Trump had lawyers there for the arguments, but only there. Why is that important that they were there as observers and not more than that?

WALLACE: Well, it's fascinating because, you know, he put out a statement saying that he wanted the entire affidavit released. That Justice Department Merrick Garland said they don't want any of it released because they think it will identify confident sources, it will hurt their prosecution of the case, maybe jeopardize national security. Trump in public said he wanted it all released.

But when they had the hearing yesterday, even though as you point out he had a lawyer, Christina Bobb in the courtroom, he didn't say anything. She didn't make a motion, she could easily have said the person whose home was investigated here, he also supports release of the affidavit, but that case had to be made entirely by media people. People like CNN and other news organizations to release the document. She didn't say anything.

And that's because I think frankly he knows that while it might help him a little bit in the defense, there is probably a lot in that affidavit that is very damaging. Yes, it is only allegations, hasn't been proven, probable cause, not beyond a reasonable doubt, but, you know, he probably doesn't want to have that affidavit released because there be with a lot of stuff in there that he wouldn't like.

BRIANNA KEILAR, CNN ANCHOR: That makes sense. I'm very excited this morning. It is one month until your show debuts. So --

WALLACE: I was wondering.

KEILAR: It is a very exciting, very exciting as we get to look toward this date. What should we be prepared for, how is this all going to go down?

WALLACE: Well, I'd love to say, listen to this, and play a clip, but we have overdone that joke.

BERMAN: It only works when Berman does it. It might not work when you do.

WALLACE: We have been putting a lot of interviews in the bank and the whole panoply, what the show is going to be, politics, entertainment, culture, sports, I'm going up to New York next week to interview Shania Twain, which I have to say I'm excited about. Man, I feel like a woman. But --

BERMAN: Right there, by the way, that's the clip coming from this interview. But go on.

WALLACE: I'm sure. It is wiser than anything I said. Yeah, first of all, it has been great fun and I hope, and I trust that it is go to be great fun because, you know, there was a time when long form interviews with people in a variety of fields were kind of standard, whether it was the great Larry King or Charlie Rose or whatever, kind of absent on the TV landscape now.

And we sit down for half an hour or more and it is not an interview, it is a conversation. We talk about whatever is on guest's mind and my mind and sometimes it goes off in a direction that neither of us expected.

They have been really good so far and we're going to do more topical guests as we get closer to our launch day on September 23rd on HBO Max and September 25th on CNN.

BRMAN: That sounds wonderful. I really am looking forward to it. The best stuff comes when you take the time to sit with people for a while.

Chris Wallace, thank you so much for being with us this morning.

WALLACE: Bye, guys.

BERMAN: All right. Here's a question, so who killed Whitey Bulger? Three men were just indicted for murdering the notorious mob boss.

KEILAR: Plus, CNN speaks with the family of the 12-year-old little leaguer who is now recovering from a fall at the Little League World Series. We have the latest on his remarkable recovery.

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[08:23:29]

BERMAN: This morning, three men are facing charges in the killing of infamous boss and mobster James Whitey Bulger. Bulger was serving two life sentences for 11 murders when he was beaten to death in 2018 in a maximum security prison in West Virginia.

CNN's Alexandra Field is with us now with this story -- Alexandra.

ALEXANDRA FIELD, CNN CORRESPONDENT: Hey there, John. Good morning. Look, after years of investigation, arrests made in the case, all three of the men charged were also fellow inmates of Bulger's at the Hazelton federal penitentiary in West Virginia at the time of his death.

Bulger had been transferred to that prison in West Virginia from a federal prison in Florida just hours before he was killed. His death quickly raising questions about the decision to transfer the infamous mobster and the subsequent decision to put him in with the general population.

Now, two of the three men who have been charged are accused of hitting him repeatedly over the head, causing his death at the age of 89 years old. All three of the suspects are charged with conspiracy to commit first degree murder. They are identified as Fotios Geas, Paul DeCologero and Sean McKinnon.

Of the three, Geas is the only one who remains at Hazelton. DeCologero is still in the federal prison system. And McKinnon was under federal supervised release at the time of the arrest.

Now, Whitey Bulger, as anyone will remember, was the infamous mob boss of the Winter Hill Gang in Boston in the '70s and '80s. But he did spend some 16 years on the run from authorities. He was on the FBI's most wanted list before he was captured in 2011 and sentenced to those two life sentences.

[08:25:06]

The U.S. attorney in Massachusetts is reacting to the arrests of Bulger's suspected killers by showing her solidarity for the families of Bulger's victims. She put out a statement that says in part, this: In the truest of ironies, Bulger's family has experienced the excruciating pain and trauma their relative inflicted on far too many and the justice system is now coming to their aid -- John.

BERMAN: Such a good point. Look, there's so many twists and turns in the Whitey Bulger story, for decades, always important to remember how many people suffered because of him.

Alexandra Field, thank you very much.

Former Secretary of State Henry Kissinger on what he calls the biggest challenge facing humanity and why he disapproves of Speaker Pelosi's controversial trip to Taiwan.

KEILAR: And fears are growing over the fate of Europe's largest nuclear plant amid claims that Russia plans to disconnect units. CNN is live on the ground in Ukraine.

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KEILAR: In a new episode of "The Axe Files," David Axelrod speaks one on one with the 99-year-old former secretary of state.