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Source Says, Trump Charged with Seven Counts in Documents Case, Former President Says He's Been Summoned to Appear in Miami Tuesday; A Person Who Spoke with Trump Tonight Tells CNN Trump and His Aides are Jacked Up; Trump Says He's Been Summoned to Appear in Court Tuesday in Miami, Maintains He's Innocent. Aired 10-11p ET

Aired June 08, 2023 - 22:00   ET



ERIN BURNETT, CNN HOST: Good evening, everyone. I'm Erin Burnett.

DANA BASH, CNN HOST: And I'm Dana Bash. Our breaking news tonight, the federal indictment of Donald Trump, the first time in American history that a former president has faced federal charges. Donald Trump has been indicted in the classified document investigation and charged with seven counts. At least one will be a conspiracy charge, according to a source. Trump's team does not expect charges to be unsealed tonight, another source said. But in a video, he takes aim at the Justice Department.


DONALD TRUMP, FORMER PRESIDENT OF THE UNITED STATES: It's called election interference. They're trying to destroy a reputation so they can win an election. That's just as bad as doing any of the other things that have been done over the last number of years.


BURNETT: Well, there he is, lashing out. The former president says he's been summoned to appear at the federal courthouse in Miami on Tuesday afternoon. And in a statement, he says, it's a dark day in America, something everyone should be able to agree with, regardless of how you see this. But then he goes on to insist that he's innocent.


TRUMP: I'm an innocent man. I did nothing wrong.


BURNETT: I want to bring in Evan Perez, our senior justice correspondent, to begin our coverage here. And, Evan, the Trump team saying they haven't yet seen the full indictment. There's a lot we still don't know, but a lot, minute by minute, that you're learning.

EVAN PEREZ, CNN SENIOR JUSTICE CORRESPONDENT: That's right, Erin. We know just in the last hour, certainly from the Trump attorneys, that they have received the summons, which shows essentially a basic charge sheet. There were seven charges, according to them. We're told, according to them, that one of them has to do with the 793, which is the Espionage Act. One of them is 1512, which is an obstruction of justice charge. There's a witness tampering charge, according to the list that they provided, conspiracy, again, those are among the charges that we're aware of, according to the Trump attorneys.

And the idea at this point, right now, Erin, is that late this evening, the former president's legal team was notified that there had been an indictment in Miami, and he is set to appear on Tuesday at 03:00 P.M. at the federal court for his first appearance with a federal magistrate. We know that, frankly, this was something being held very tightly by Jack Smith, the special counsel, and his team, law enforcement officials, who are going to be in charge of trying to secure the president, secure that courthouse, and secure those judges were caught off guard, frankly, by this. They were not notified about this until after the former president had already gone public with this information on True Social.

And we can talk a little bit about more about that. I mean, it's something that I'm a little surprised that the Justice Department is allowing the former president to set the narrative of exactly what the special counsel has done at the end of this investigation. It's almost like they didn't learn anything from last August, when the former president was the first to tell publicly that his house had been raided at Mar-a-Lago, and then, for the next few days, spun out a bunch of lies about exactly what had happened, including allowing for threats against the FBI agents that carried out the search.

BURNETT: And to that point, Evan, right, they're coming out. He broke this before the Justice Department. They're talking about the summons. When do we all get to see the actual indictment, the charge? How does this happen from here? Obviously, he's appearing, as you said, on Tuesday at 03:00 P.M. But when and if, how do we all see the actual indictment?

PEREZ: Well, someone has to go to a judge and ask the judge to unseal that indictment. Again, we don't know exactly when this grand jury or when the grand jury returned that indictment. We knew we saw a lot of activity. Kara Scannell, Hannah Rabinowitz were inside that courthouse today trying to figure out what was happening. We saw there was activity at the grand jury room, but we don't know whether that grand jury returned that indictment today.

So, what we know is that beginning tomorrow morning, certainly someone, perhaps the Justice Department, will go and ask the judge to unseal the indictment. Jim Trusty told Kaitlan Collins in the last hour that he hopes that they can see it before the Tuesday court hearing. Erin, that's the truth, is that until the Justice Department or until a judge unseals it, we don't know what the special counsel is alleging against the former president. We don't know the seriousness of these charges until then.

BURNETT: And that's unbelievable, right? As you said, just because something fills empty air, right? Something fills it. And maybe it's better to let the facts and the truth fill it than speculation. All right, Evan, thanks so much.

I mean, Dana, it is incredible to think here we are, we know so much, and yet we still know so little.


And we don't know when this information is all going to come out.

BASH: No, absolutely. And the fact that as Kaitlan heard from one of Donald Trump's attorneys, even they haven't seen the indictment yet, they've just gotten word about it.

I want to -- on the notion of Donald Trump and what his team is hearing, I want to go to CNN's Kristen Holmes. You have done some reporting. You're still doing reporting as we speak. What are you hearing from inside Trump world about how he's doing and what they are hearing?

KRISTEN HOLMES, CNN NATIONAL CORRESPONDENT: Well, right now, I think it's starting to wind down. There was a lot of excitement and concern over the last several hours as this began to unfold. And as you noted, look, this is still sealed. No one that I have spoken to in Trump's political world has actually seen this indictment. They have just heard from attorneys what this looks like. This was something that they were not taken by surprise when it happened, but yet it is still shocking nonetheless, given the fact that the former president and unprecedented move has been indicted by the Department of Justice.

And as we've been reporting most of today, Donald Trump himself was starting to tell people that he believed he was going to be indicted. I talked to a number of senior advisers who said, yes, we think that this is going to happen. And his entire team was preparing for this moment. They have had a call with the lawyers, but just as Jim Trusty said to Kaitlan, they don't have all of the information yet. And sources are telling me that they aren't expecting this to be unsealed tonight or possibly even tomorrow morning.

They are still trying to piece together what exactly Trump's reaction is going to look like. Yes, he put out this video, but what does this look like in a larger sense? When does he go down to Florida? He has two campaign events on Saturday. He's going both to North Carolina and to Georgia. I am told by officials none of that is going to change.

So, the question is, how exactly does he address this? Is he going to bring this up in these speeches? Is he going to give remarks on Tuesday after he goes down to Miami? Is he going down to Miami in person? All of this is stuff that they are trying to figure out right now.

And I do want to note, my colleague, Alayna Treene, is in Bedminster. She's talking to several of Trump's advisers who say they are, quote, jacked up, they are ready for this. And I do believe that there is a faction of Trump's world that does feel that way. They feel energized. They feel like this is going to give them the same boost in the polls that they saw from the Manhattan indictment, the same boost in fundraising. But I will note there are a number of people around him who are very serious and very professional this cycle, and they do not feel that way. The people that I have talked to who say that they're not sure that this is an ultimate positive, that the entire way that they believe that Donald Trump can win the election is by broadening his base and getting an indictment in this federal investigation is not a way to broaden his base.

So, something to keep in mind there that while, yes, this could, in fact, energize his base, could bring in fundraising dollars, could boost up his poll numbers, there are still people who support Donald Trump who don't think that this is a positive when it comes to an actual 2024 election.

BASH: Yes. Will you use the word ultimate? It is the age old question about the short-term versus the long-term in politics, the primary versus the general election, and they are very, very different. But, clearly, he feels he needs to win the primary first, and that's who he's playing to.

HOLMES: First and foremost, primary.

BASH: Absolutely. Kristen, thank you so much.

On that note, I want to bring in CNN Chief Congressional Correspondent Manu Raju. Manu, many of the president's allies are rallying against this indictment, rallying on his behalf, including the speaker of the House. Tell me what you're hearing.

MANU RAJU, CNN CHIEF CONGRESSIONAL CORRESPONDENT: Yes, rushing to his defense, similar to what happened in the New York case, even after they -- before they had seen any details of the indictment in the New York case, before they've seen any of the details in this federal indictment, saying that the Justice Department is wrong, calling it a witch hunt, calling it a sham investigation, and vowing to use the power of the House GOP majority, in their words, to hold the administration accountable.

That is exactly what Speaker McCarthy just said in a tweet just moments ago, going after this indictment, calling it a dark day in American history. He says that the Republicans stand with President Trump against what McCarthy says is a, quote, grave injustice. He goes on to say, House Republicans will hold this brazen weaponization of power accountable.

Now, it's not entirely clear what he means by that. Some folks in the far right of his conference want him to go as far as calling for defunding or dismantling the Justice Department. That is not rhetoric that McCarthy has embraced, but they have done other things to go after investigations, including in that New York investigation. They have already gone after that prosecutor in that case, trying to call him to come and testify on Capitol Hill, to try to suggest that that was a politically motivated investigation. Expect the same to happen here. It's unclear exactly what at this point.

[22:10:01] But, Dana, there is a serious divide within the ranks of the Republican Party. We have not heard of anything from Senate Republican Leader Mitch McConnell or his number two, John Thune. McConnell is publicly neutral in this campaign, but he wants to move past the Trump era, as does John Thune, who supports Senator Tim Scott, yet to weigh in on this issue, showing the persistent divide within party over Donald Trump.

And also, Dana, most members are gone. There are really nobody here in the Capitol left tonight. Most of them are not here until next week. So, really, the only people are speaking out are the vocal ones. A lot of them are quiet now, waiting to see the details before they weigh in, if they weigh in at all. Dana?

BASH: Manu, thank you so much for that reporting. Yes, we can hear the echoes in the halls there. And, Erin, what he just read, it is from the House speaker. I think to me, the most striking part of it is it is unconscionable for a president to indict the leading candidate opposing him. That just frames it exactly the way that Republicans will be doing it. Not that this is something that is happening to a former president, but to somebody who wants to be president again, making it a political -- alleging that it's political.

BURNETT: Right, absolutely. And saying the president is doing it, as opposed to a special counsel, right, who was given those powers, of course. Thank you, Dana.

So, let's get straight some reaction from Ty Cobb, former Trump White House lawyer. And, Ty, I know we've talked a lot during this. You heard Manu and Dana talking there. I know your contacts had told you that this was probably ready. It could happen today or tomorrow. Here we are. You were right. What stands out to you most here? And I guess I'd like to start with, if possible, the seemingly relatively sudden switch from Washington to South Florida. Do you have a theory on that?

TY COBB, FORMER TRUMP WHITE HOUSE LAWYER: Yes, I do. I think there have been complaints made by the defense counsel about some procedural issues that they view as misconduct, which the Justice Department apparently does not believe rise to misconduct.

There's been a lot of exchange of legal theories, there have been logistical discussions. I think it's likely that in the course of that back and forth that the Justice Department as it firmed up the evidence and considered where the charges should actually be brought, reconsidered some of the venue issues.

I think they have venue in D.C. But I can understand that there are arguments that might delay the venue decision that force it to go through a hearing and an appeal and that by bringing it in Florida they sort of bulletproof themselves from that because obviously that's where the bulk of the activity in terms of the unlawful possession and obstruction occurred.

BURNETT: Does it speed it up? It sounds like you're getting rid of some of the delays that would come through venue challenge and other. Does it speed it up enough that this could somehow get through the process before the election by doing it in South Florida?

COBB: So, that's an excellent question. I know that's on everybody's mind. I think as we've talked over the course of the last year, this is right up against a line at which it is conceivable that it could get to trial before the election. I think had they waited until September or later, that would have been very difficult.

But I think by, A, bringing it in Florida, B, limiting it to seven counts, which I think is very prosecutorial, very professional, very intelligent approach, unlike bringing 34 charges or however many were brought in New York.

But having seven charges, seven counts tied together, blending in the unlawful possession and use of the classified documents, along with the obstruction efforts that were made to prevent the Archives and the Justice Department from receiving those documents, I think that's a smart approach. I think that also speeds things up.

I think from the description that Jim Trusty gave, and I appreciate his passion on that, but from the description of what he gave, it sounds like a pretty lucid approach to the indictment.


And we still don't know exactly what's in it. We hear a lot about public interest and the poor president not having a copy, but the reality is he's not entitled to a copy. Nobody is entitled to a copy until arraignment. I think they'd like to work out a circumstance where they could maybe make an agreement with the president and his counsel to share the indictment with him ahead of time on the condition that the president's team wouldn't leak it. But we'll see how that develops over the weekend.

BURNETT: All right. Well, Ty, thank you very much. I appreciate that.

And let's go straight to our panel here in New York, Ryan Goodman, former Special counsel, Defense Department, former Federal Prosecutor Elliot Williams, Scott Jennings, who worked in the George W. Bush White House and the former Democratic congressman, Mondaire Jones.

All right. Let's just start here on the legal side. And the point, interesting, Ryan, that Ty is saying by doing it the way they did it, by evaluating, even though he felt that they would ultimately prevail in Washington, evaluating the pushback, said it will be faster to do this in South Florida, that speed seemed to be a part of it, that he's saying it is possible that this could get through the system prior to the election.

RYAN GOODMAN, PROFESSOR, NYU SCHOOL OF LAW: I think that's right. And before this point, if you were to have asked me what is Trump's strongest legal argument, I would have said venue, if they brought it in D.C. That would be the place that he could make an argument and a challenge that they brought it in the wrong jurisdiction, which could actually ultimately end up in the entire case being thrown out.

BURNETT: Right. So, the risk is it being thrown out, and even if you win, you just burned a lot of time.

GOODMAN: Exactly. So, that now they've taken that off the table. It's in Florida, strongest legal argument that that is exactly where it should be brought. There's no venue challenge that's going come up of bringing it in Florida.

BURNETT: And, obviously, we obviously haven't seen it. We know from Jim Trusty and from CNN reporting you've got espionage, witness tampering, and conspiracy among what's referenced in the summons that they got. But interesting, as Ty says, seven charges seems to be very specific, very buttoned up, very tight. Although when I hear, okay, I got witness tampering, espionage, conspiracy all in there, along with, obviously, presumably obstruction, that's a lot in a few counts.

ELLIOT WILLIAMS, CNN LEGAL ANALYST: It's a lot in a few counts. Now, I want to be careful and clear here. When we say espionage, we're speaking about the Espionage Act. It's not the cloak and dagger trench coats and sort of spying, but it's the mishandling and retention of information that could harm the defense interests of the United States. That's probably what was charged here, and that sort of specific spying.

Now, conspiracy is something quite concerning, because that's an indication that in order to be charged with conspiracy, you're convicted of it, you formed an agreement with another person to commit to break the law and took an act in furtherance of breaking the law there, right? And so there's probably one other person, at least who came to some agreement with the former president or acted at the direction of the president to break the law.

BURNETT: All right. Now, I don't want to like just play 20 questions, because none of us know the answer to begin with, Ryan, but, I mean, that could be anybody from person moving the boxes to Mark Meadows and what immunity he had, right? We don't know who that, quote/unquote, conspirator is and what deal was reached, but it could be anybody in that gamut.

GOODMAN: It could be. Jim Trusty said something very interesting in his interview with Kaitlan Collins. She basically said, what about the fact that do you know of anybody else who's been indicted? And he says, we're not aware of anybody else who's being indicted, and I have a theory. She says, what's your theory? Then he says, and he maps out this argument as to what that does seem to point the finger at Walt Nauta. So, that's the porter. That's the body man who's moving the boxes in and out, who said he moved the boxes in and out at Trump's direction.

And he said, basically, he's trying to make this argument that the DOJ engaged in misbehavior, according to his allegations. That could have changed the equation in that other case. That is the Walt Nauta case. And he's suggesting that's why Walt Nauta is not being charged tonight, and that might be the other conspirator. So, that could be at least one of them, because it's two or more.


GOODMAN: And it could also mean what he's saying there is not being charged means he's cooperating, which would be a very big deal.

WILLIAMS: And one more thing. Another charge is being talked about is false statements, and that would be a false statement made to law enforcement or a government official, right? It's not clear that the former president spoke to any law enforcement, but he might have directed somebody be and tried to influence the words that they provided to somebody else, which would get you charged with false statement.

BURNETT: False statement, witness tampering, you got all these possibilities in here. As I said, seven charges. You could look, and you go, okay, that sounds like a lot in a little, right? But you already hear their arguments. You already see their arguments against it, DeSantis saying.

SCOTT JENNINGS, CNN SENIOR POLITICAL COMMENTATOR: Well, the word of the night for the Republican Party is weaponization. And you are broadly seeing the Republican Party leadership rally around and circle the wagons around Donald Trump, House Speaker Kevin McCarthy, Ron DeSantis, other presidential candidates, lots of members of Congress.


I think there's going to be a tremendous amount of pressure in the U.S. House. And you're already seeing vague promises. We are going to hold the Department of Justice accountable. What does that look like? Does that look like funding? Does that look like impeaching the attorney general? And I think Trump is going to want to encourage that.

But this word, weaponization, this is a key argument that Trump is making and will continue to make, that your government is being weaponized against you if you're a Republican.

BURNETT: And so what fills the airspace between now and when we actually see this indictment, which could be several days? I mean, this is what you're going to get from one, but this is it?

MONDAIRE JONES, CNN POLITICAL COMMENTATOR: Yes. Look, I think you'll continue to see allegations of weaponization of the Department of Justice by my former Republican colleagues in the House. The irony, of course, is that nothing could be further from the truth. I mean, this is a Department of Justice that clearly isn't politically astute enough to even issue a statement to at least get its own position out there with respect to what it did today in terms of the indictment.

And it is ironic, though, probably not surprising, that we will see, I think, House Republicans move forward with continued talk of defunding the FBI and defunding the Department of Justice, despite having spent years now running campaigns against Democrats, falsely accusing them of wanting to defund law enforcement.

BURNETT: Yes, I like the irony there. All right, Dana, it is amazing to think that it could be maybe somehow it comes out tomorrow, right? Or maybe we're still sitting here having the same conversations around the edges of conspiracy or espionage in a few days. BASH: It very well could be, if we don't end up seeing this until Tuesday.

I want to go, Erin, to Mar-a-Lago. That is where CNN's Randi Kaye is. And, Randi, there's a small crowd of Trump supporters gathering there. What are you seeing?

RANDI KAYE, CNN CORRESPONDENT: Dana, they've been gathering here for the last couple hours or so since news of the indictment broke. We're on the bridge, which overlooks Mar-a-Lago, known as Southern Boulevard. And this is where the protesters come, whether Donald Trump is here or not. As we know, he's in New Jersey tonight. But there has been a small group of supporters, you can see here behind me that have been gathering here tonight, very, very peaceful. There's police in the area as well, making sure that it remains peaceful.

I did speak to some of them earlier, and they were basically saying that they think that this indictment is only going to make the former president stronger, going to make his campaign stronger. They believe it's a witch hunt. As we know, that's a word the former president likes to use. They called it political garbage. And they truly believe that this is not going to impact his campaign or a possible win in the election at all.

Now, also, I should note, there were plenty of people that were driving by, honking their horns, yelling out their windows, saying, lock him up. So, not everybody here is a supporter of the former president. But this is ground zero. We are just at the edge of Mar-a- Lago. This is where it all happened. This is where the 15 boxes of documents were removed. 300 documents marked as classified were removed from here. But when you speak to these supporters of the former president about that, they don't want to hear anything about it. One of them told me, in fact, that they believe it was all planted. Dana, back to you.

BASH: Randi Kaye, thank you so much for that report. And we've got much more to come on our breaking news, the first time in U.S. history a former president has faced federal charges. Donald Trump indicted in the special counsel's classified documents investigation. Stay with us.



BURNETT: Breaking news tonight, the former president, Donald Trump, has been indicted in the special counsel's classified documents probe, and a source says the Trump has been charged with seven counts, at least one of them conspiracy. He's set to appear at a Miami federal courthouse on Tuesday afternoon at 3:00 P.M.

Kara Scannell is in Miami tonight. And, Kara, what are you learning? And obviously between now it may be until then, we have to wait until then to actually have this not under seal.

KARA SCANNELL, CNN CORRESPONDENT: Yes, Erin. It's a big question of will prosecutors ask a judge to unseal this indictment between now and Tuesday? And if they don't, then on Tuesday, when he's appearing in court, that might be the first time that we learn what these specific charges are.

And in the case of a lot of these indictments are known as speaking indictments, it will go through in some kind of narrative form what the prosecutors alleged the former president done that violated the law. So, there will be a lot more that we can learn once this document is unsealed.

But on Tuesday, as we wait for that, I mean, this will be just like any other arraignment. The former president will come in, he will self-surrender to the FBI, they will process him, and then he will appear before a judge here and be asked to enter a plea in this case.

Now, the big question also here is what will that look like here? Will this be in the ceremonial courtroom? Will it be in the judges who randomly assign this case? Who will it go to? Will that be a Trump appointee? He's appointed a number of judges in this district. Will it be someone appointed by a Democrat? We just don't know yet how that's going to play out.

But then he will make his appearance, as we saw in New York just a few months ago when he made that appearance in the state court, that was a big security undertaking. There were a lot of precautions that they took, but they tried to get him through the actual process, both through turning himself in and then actually going into the courtroom and going through that proceeding. They tried to do that as quickly as possible, given just the big security risk that he faces by being out there and then just kind of issues it causes to a city because of all the lockdowns and the security parameters that they take.

So, that will be the next steps here once -- we don't expect anything else to happen in court. So, the next thing will be on Tuesday, and then he will come in and enter a plea to these charges. And then, usually, in an arraignment, you do get some additional discussion about what kind of discovery they have. So, sometimes you can learn a little bit something more about the evidence that they collected, how much of it is, how much they've turned over, so all these other little details that sometimes come out that we'll be looking for on Tuesday. Erin?

BURNETT: All right, Kara, thanks so much. And, Dana, it's amazing when Kara is talking about that, to think about the former president, again, having to turn himself in. He just had to do that in New York. It was unprecedented. Now here we are, unprecedented take two. In between that, there was being found guilty, right, in the defamation, sexual abuse, E. Jean Carroll case. I mean, it's pretty stunning.


BASH: It is pretty stunning. And of course, that was on the state level. This is on a federal level, which is a whole different ball of wax as they say. And on that, I want to bring in John Miller to talk about the Secret Service meeting with staff this morning, beginning security planning for the former president's indictment. So, John Miller, before we talk about security, I should also say, you are CNN's intelligence analyst and CNN chief law enforcement analyst. On the charges first, John, what is your takeaway from what the little, really, that we know so far?

JOHN MILLER, CNN CHIEF LAW ENFORCEMENT AND INTELLIGENCE ANALYST: Well, we know it's a seven-count indictment. We are told there's a conspiracy count there. That is particularly important because a conspiracy count means that the person charged in the case conspired with another. That could suggest, as was discussed a minute ago, that someone else could be charged, or it could suggest that someone else is going to testify that they conspired with the former president to obstruct justice by moving, hiding, or otherwise shifting these documents around to avoid discovery.

You know, the most likely charge we're looking at here is Title 18, U.S. Code Section 1924 because it speaks to the actual mechanics and component pieces of the investigation. It's about any unauthorized person who knowingly removes with intent to retain at an unauthorized location, those are three points of the investigation, classified documents about the United States defense.

And we've seen other cases involving government officials with the same charges, notably the airman up in Massachusetts, another air force suspect in Florida. This seems to be the go-to charge for the moving parts of this case, Dana.

BASH: And this is the Espionage Act?

MILLER: This is under the Espionage Act. So, you have, you know, a Secret Service detail that only found out tonight that they are to basically produce their protectee in the Southern District of Florida at a hearing at 3:00 on Tuesday to face these charges. This was held very closely.

BASH: And what does that tell you about how law enforcement, Secret Service and outside law enforcement agencies are going to handle this on Tuesday?

MILLER: Well, the advantage is, it's not -- as we were just talking about a minute ago, it's not unprecedented. It's a drill that they've been through in a state court. This will mirror that. You're going to have the former president brought to a federal court, he's going to go through what we would call an arraignment. In the federal system, it's a presentment where, you know, he will be presented for the purposes of identification and for hearing the charges.

He's going to be released on his own recognizance and that, you know, he's going to be judged not a flight risk, but at that proceeding is the place where most likely they will unseal these charges and we will get the first look on what is the breadth and the story behind them.

BASH: John Miller, thank you so much. And here with me now in Washington, CNN chief legal analyst, Laura Coates, legal analyst Kerry Cordero, senior political correspondent Abby Phillip, and former deputy FBI director Andrew McCabe. Thank you all for staying up late on this -- another history-making night.

Laura Coates, I want to start with you. As you are sitting here sort of consuming all of this, I want to know what's going through your mind given your legal background.

LAURA COATES, CNN CHIEF LEGAL ANALYST: Well, let's take a step back on the extraordinary nature of the fact that we have a former president being charged, but I'm not going to get hung up on the fact that it's a former president. What I'm focused on is the conduct, that somebody previously had the authority to retain classified documents as a person who had that legal authority and doubled down and retained them, according to and presumed to be the willful retention of that.

There'll be a lot of focus going forward about, well, what does this say about our country. Other democracies, of course, have held their former leaders to account. But what does it say about America to have this moment? Well, what would it say about our country if we allowed laws to go unchecked? If we had a notion that people were above the law, if they were no longer the head chief officer in the country?

And so, I'm focusing in that realm, but also, I'm going back to this moment that was also extraordinary. A former president's attorney was allowed to testify in the grand jury. Was allowed to give evidence and testimony about the conduct that actually I'm glad we're talking about now. And I have an eye towards that, when I'm looking to figure out what evidence Jack Smith had, what is the evidentiary basis of the allegations --

BASH: It's so unusual for people, who don't know.

COATES: It's so unusual.

BASH: For a -- to allow for attorney/client privilege to be breached.

COATES: To be pierced in this way because we want, as in presidential privilege, just not this instant. We want forthright, candid conversations.


We certainly want them with our attorneys. So, if an attorney is allowed to speak about the nature of conversations and the substance, because the federal court has said, wait, there's an exception here, it's called crime fraud. I'm not going to let you shield yourself because you're an attorney to say, you can't tell me anything. That was the moment I think this became a kind of foregone conclusion.

BASH: I just want to pick up on one thing you said, Laura, at the beginning, which is that you want to look at this as a person --

COATES: A person.

BASH: An American citizen, not necessarily a former president that we all know that that's not necessarily how they look at it, and Andrew McCabe, you are the only one at this table I believe who has experience, not necessarily with the former president, but with a very high-profile figure, and that is a presidential candidate. He -- there has to be a different lens through which you look at a case like this because he is a former president and a candidate again.

ANDREW MCCABE, CNN SENIOR LAW ENFORCEMENT ANALYST: You know, not in the way that Laura was just speaking. Not when it comes to examining the conduct. That lens should be the same for former President Trump or anyone else who engaged in this, you know, it would be impossible for anyone but a former president to have had the sort of authority that he had to classify and declassify documents, to lose that authority, and then to continue to retain the documents. So, the fact pattern here is pretty specific.

But nevertheless, when you are investigating this alleged activity, you have to look at it through that lens of, what did this person do and how does that conduct stack up against the law? Certainly, now when we're talking about a presentment, arraignment on Tuesday, there are security concerns. How do you transport this person? How do you handle them? Those are all places where it's perfectly reasonable to think about this soon to be defendant as a former president, and the unique considerations that come along with transporting and securing him.

But when it comes to presenting that evidence to a grand jury, having a group of your fellow citizens sit in judgment as to whether or not there is probable cause to hold you accountable for a crime, you should be seen the same as any other citizen in that context.

BASH: Yeah. And I didn't mean to suggest that he's going to be held to a different standard when it comes to the law and to the facts and the evidence, but when it comes to approach and being really buttoned up.

MCCABE: Hey, there's no question. Any high-profile case that you know is going to receive this level of scrutiny, you want to be perfect. You want to have every detail taken care of. We also know that being perfect in a large, wide-ranging, broad investigation is impossible. And over the course of this litigation, I'm sure we will see arguments about things that the department of justice allegedly should have done better or have been more careful about. That happens in every single case.

At the end of the day, the question is, do the prosecutors convince a jury of Americans that there is beyond a reasonable doubt, that President Trump committed these offenses? That's at the end of the day the only standard that matters.

ABBY PHILLIP, CNN SENIOR POLITICAL CORRESPONDENT: And it's not the first time that we will be asking that question of this particular former president. I mean, that's what also makes this unprecedented and historic and probably all the bad ways. This is a current candidate, former president, who now faces several indictments, and many more, potentially, to come.

It's a pattern of conduct, some of which is alleged. Others, you know, in the case of the E. Jean Carroll case, has been found by a jury to -- for him to be liable for that. But it's a pattern of conduct here that has put him in this position so many times. That's incredibly unusual. And that's actually what really undercuts the argument from a lot of his allies that this is all just a grand conspiracy.

You know, Donald Trump was president once. If he wanted to bring charges against any number of his political allies, if it were so easy, he could have done it, if their conduct created the environment to make that possible. I just think it's so difficult to get to this point where on so many different issues, Trump is facing real investigations, real charges, real criminal liability, and that is not going to be washed away by tweets or by political spin.

The voters will ultimately decide. But we just have to take a step back and look at the fact that, on documents, on sexual abuse and defamation, on the hush money case, where Georgia is coming up soon, January 6th is also coming up, there is a range and a scope here that is truly unprecedented.

CARRIE CORDERO, CNN LEGAL ANALYST: You know, what I keep thinking about all evening, Dana, is that this did not have to happen this way. This case, the fact that we are at this point as a country, the fact that the former president is now facing these charges, is 100% a self- inflicted wound by him and by his team around him.


There are other cases that we can look to in the national security space and mishandling of classified information, including the more recent cases of former Vice President Pence where individuals make mistakes, they mishandle information, then they work with the government to fix it. And in some cases, it can mean that there's never a case that's actually brought, a criminal case that's ever brought, like the Pence example, where it was just an accident, he handled it, he reported it, they returned it, done.

Or there's been other cases, including a former senior high ranking national security official where they made a mistake, they admitted it, they plead down to what is the lesser charge of, which John Miller was describing earlier in that Section 1924 of the Criminal Code, unauthorized removal and retention of classified information, which is different than the set of statutes under the Espionage Act.

And if the case gets handled, you know, a former CIA director plead guilty to a misdemeanor, faced probation, and paid a fine. And so, there was a whole range of potential ways that this could have been handled and that this could have been resolved, and I just continue to think about the fact that it didn't have to get to be this way.

PHILLIP: And it wasn't resolved that way, because Trump, as he has said multiple times, he still to this day does not believe that the documents belong to the government and that he had to give them back. I mean, his refusal to even contemplate that is what has brought us to this point.

COATES: Well, you know, I almost think -- I wonder if he really does not believe that, or if there is an emboldened sense that suggests, I don't have to. I have three questions for this former president. Why did you take the documents? Why did you keep the documents? And why do you refuse to return the documents, even though it is clear that there has not been declassification, that you have the wherewithal and the knowledge about this?

It's not inadvertent, according to the allegations, and we have to see the fulsome reporting on this issue, but let's not forget about Merrick Garland, the attorney general of the United States. Jack Smith is the special counsel. He has authority to make prosecutorial decisions and declinations. But under this statute, he will have to go to Merrick Garland, the attorney general, with this information.

Attorney General Garland has the option to either agree with the decision or decide against it, at which point, Speaker McCarthy and Congress would have to be informed about the decision. So, this is not -- any talking point that suggests that there is somehow, I think Victorian guard is the word that Mr. Trusty used -- lead to the Imperial Army of the Roman Empire, as if Jack Smith is simply that part.

You know, he's a special counsel who has certain regulations. I would really doubt, though, don't you all, that Merrick Garland would look at this case and say, you know what, Jack Smith, I will not follow your suggestions based on all that you have seen. That's going to be the next frontier of the talking point to suggest that he's just a rubber stamp, but the (inaudible) is very different.

BASH: All right, everybody, stand by. We're going to have to take a quick break, but we're going to be back with much more on our breaking news. Former President Donald Trump indicted on seven counts in the classified documents investigation. What happens next? More ahead.



BASH: More on our breaking news tonight. Former President Donald Trump has been indicted in the special counsel's classified documents investigation. I want to bring in a man who knows maybe just about more than anybody about a president facing stunning legal trouble, Nixon White House counsel John Dean. Thank you so much for joining me tonight.

I kept thinking, as I knew I was going to talk to you, about the sort of famous line, it's not the crime, it's the coverup. Obviously, this is just an allegation here, but it's sort of the same idea of, we were talking before the break, about Mike Pence and others having classified documents, returning them, and in the case of Mike Pence, just week before last, him being cleared, and Donald Trump is facing a very different set of challenges and an indictment.

JOHN DEAN, CNN CONTRIBUTOR: Very true, Dana. This is a perfect example of somebody who just kept digging a hole deeper and deeper. It was really kind of surprising, but it points back to what might have been the original intent, which is to take these documents, to keep them and use them for his own whatever purpose, which we may or may not ever learn. So, I think there is a difference in this wasn't pure coverup, initially, one of the documents.

BASH: Let's talk about the way the DOJ has handled this so far and the question of informing Donald Trump and his attorneys and keeping the indictment under seal until Tuesday. What's your view on the way that they're doing it, given how high profile this is, given how very political it is, since he's Donald Trump and he's also a candidate for president?

DEAN: Yes. My initial reaction was that the department seemed to have blown it because why didn't they put out an announcement of some kind, rather than let Trump run with what was in the indictment? Then we learned when Jim Trusty was on CNN that the indictment really has not been handed down at this point, that they've been -- they've received a summons, they've got to come to court next week on Tuesday, and that's when they'll unseal the indictment, at least for court purposes and it will be official at that point.

Now, I don't know if they'll be -- I think what might be happening, Dana, is given what happened with the search warrant, and the way Trump handled that, they may be very reluctant to let him have a head start on this.


So, he cannot reframe and recast issues that are very clear in a talking indictment, which I suspect will be the case. So, I think the department has handled it well, and while I tweeted earlier, I was surprised. I'm not anymore.

BASH: Oh, that's really interesting. Let's talk about one of the charges that we or we know is in there from CNN reporting, and that is the conspiracy charge. What do they have to prove to get a conviction on just that one charge? One of seven, I believe?

DEAN: They have to prove that there was an agreement to commit a crime, to commit action that was criminal, and that there was some step taken towards actually conducting and committing that crime. It's a very low standard. The Department of Justice, the federal prosecutors, they love conspiracy counts because a lot of admission of evidence that otherwise might not come in -- comes in, they are very tough for defendants to not get caught up when they are charged with this.

And justices are very careful in who they name. Actually, Richard Nixon was named as an unindicted co-conspirator, so that all his tapes could come in against his former aides.

BASH: John Dean, thank you so much. Appreciate it. Really interesting that you changed your view, giving more information. Imagine, Erin, that that actually does happen and this -- and it's important to actually underscore because you've been talking all night about the fact that this is just a vacuum that is being filled by the former president.

And you have somebody like John Dean who see something initially and says, wow, the DOJ is not handling that right, and then gets more information from Donald Trump's lawyer that they don't actually have the indictment. They just have a notice. And he is not praising the DOJ. BURNETT: Yeah, and you're right. The facts are coming in so much. It

is interesting, Dana, as you were sitting there, you know, we had our panel here, thinking, gosh, could you be in a situation where you have the front runner for the Republican nomination, possibly then the nominee, under indictment. Four different indictments at the same time.

I mean, it is incredible, just to take a step back here because you know, you get in the moment of this one and we're covering it, right? And then just to think about, gosh, wow. What we could possibly be walking into? I mean, it is incredible, as we are sitting here together and watching history unfold here again on this night. We're going to take a very quick break, but when we come back, much more on the historic indictment of former President Donald Trump, and the special counsel's classified documents investigation.



BURNETT: Our breaking news tonight, former President Donald Trump indicted on seven counts in the special counsel's classified documents investigation. My panel back with me and let's start here on the legal side of things. Ryan Goodman, so, as we're getting more information, we are starting to kind of come through here. It seems that we're going to get some of the real parameters of this pretty quickly. That we are not going to be, necessarily waiting until he walks into that courthouse on Tuesday morning -- Tuesday afternoon, I'm sorry.

RYAN GOODMAN, PROFESSOR, NYU SCHOOL OF LAW: That's right. So, as the evening progresses, we're getting more and more of the charges and there's only seven so it's going to --


GOODMAN: -- it's finite. But it does seem like the headline or charges, the Espionage Act. So, and it's -- the words being used are retention. So, it just means that he's being charged for keeping the documents that would pertain to U.S. national security and national defense information from the government.


GOODMAN: But what hasn't been said is the word dissemination, which is in some sense, good news for the president -- President Trump -- in that there will be an even much more egregious charge. Dissemination meaning, he gave it, somehow got it into the hands of third parties.

BURNETT: Right. Right. And I guess we don't know if we don't know, Elliott, but that would be significant because obviously one of the big pieces of information that we got in the past week was the existence of a tape, right, where he's talking about the -- Milley's, you know, the potential plan for an invasion of Iran.

WILLIAMS: Right. BURNETT: And he's shaking around a piece of paper which may or may not

have been, talking to somebody and acknowledging (inaudible). I wish I could tell you all of it because it's classified. That, theoretically, could have been dissemination, if that had moved further, if they had more. But at least from what we understand now that may not be among the charges.

WILLIAMS: That would have been a separate federal offense if -- if it were an actual document and someone saw it, a very serious federal offense with serious penalties here. So that -- it seems that that's not --

BURNETT: It does not seem that that's on the table.

WILLIAMS: It does not seem that that is on the table.

BURNETT: And can I just say, Scott, that -- this is possibly significant if to set -- we're talking about retention, the significance of that, right? You've got conspiracy, espionage, all of those things. If you do not have dissemination --


BURNETT: -- from a political perspective, I think your view is, right, that this makes it even harder to break through the political rhetoric that we are already are seeing happen.

JENNINGS: Yeah. I was thinking earlier that if he had something, showing he gave it to somebody or -- and there would've been conjecture about that, that would have been --

BURNETT: Especially for national or --

JENNINGS: Exactly. But if they don't have that, then you can see tonight the circling of the wagons around him, that's going to continue. I mean, Republicans are doing this without having seen anything. They have seen no evidence. They've seen none of the documents. And so, that would probably embolden them to continue to do that.

And, you know, remember the reaction after the raid, and people were saying, this is like the beginning of a civil war. This is the -- the lines are drawn. There is no going back now. I mean, that happened when the raid happened at Mar-a-Lago -- I mean, this is going to be a continuation of that from the same people who started that back then.

And, I mean -- it's just mind-blowing to think about. This guy is going to be on trial for his life. I mean, these things carry actual jail time possibilities. And this trial, you got the Georgia thing hanging out there, the New York thing, January 6th -- at what point does he start to wonder, running for president, is it my best defense?


Or is my worst nightmare when it comes to keeping myself out of jail? I mean, he's an elderly guy. You don't want to go to jail at that age, or at any age, really.