Updated
Summary
DOJ lays out evidence from the Mar-a-Lago search, a collection of documents found in the container in the so-called 45 office at Mar-a-Lago, which debunks Trump`s defenses in documents case. Donald Trump`s legal team is under scrutiny in the wake of the DOJ filing. NBC News projects Democrat Mary Peltola wins special election for Alaska House seat defeating Sarah Palin.
Transcript
JOY REID, MSNBC HOST: As the Washington Post notes, Gov. Reeves and other officials have repeatedly opposed efforts to fund water treatment upgrades. But it`s worth noting that Republicans, what they have been up to with this — with Tate Reeves signing a bill banning critical race theory earlier this year and saying the state would move full steam ahead on draconian abortion restrictions. Oh, priorities.
That`s tonight`s “REIDOUT”. ALL IN WITH CHRIS HAYES starts now.
(BEGIN VIDEO CLIP)
CHRIS HAYES, MSNBC HOST (voiceover): Tonight on ALL IN. The Department of Justice drops what amounts to a legal nuclear bomb on the ex-president, because he asked them to.
GEORGE CONWAY, CONSERVATIVE LAWYER: They asked for the Justice Department to punch them in the face, and that`s what the Justice Department did.
HAYES: Tonight, George Conway on the stunning DOJ filing and the classified documents recovered from the desk of Donald Trump.
Then a pixel-by-pixel dissection of that incredible photo and trove of evidence spread out on the Mar-a-Lago rug. Plus, what we know from the DOJ filing about who else may have legal exposure.
CHRISTINA BOBB, TRUMP LAWYER: They don`t have anything. There`s just nothing there.
HAYES: And the legal, political, and moral implications of a potential decision to indict the 45th president when ALL IN starts right now.
(END VIDEO CLIP)
HAYES (on camera): Good evening from New York. I`m Chris Hayes. It`s 8:00 p.m. Eastern and we`ve just hit the deadline for Donald Trump`s legal team to respond to Department of Justice filing that`s just passed. It looks like it just came in, so we`re going to monitor it and let you know what it is and what it says. But honestly, what it says is a little bit of a sideshow at this point. Because the one thing we know for sure is that the Department of Justice is not messing around. They are not messing around with their investigation into classified documents that Donald Trump kept at his Florida home.
Last night, they dropped the equivalent of a legal nuclear bomb on the ex- president and it came in the form of this 36 Page court filing. Now, that court filing a response to Trump`s request for an independent special master. That would be someone who would come in and review the documents recovered from Mar-a-Lago, looking for privileged documents separating them out.
Now, the DOJ didn`t really have to respond at such length. And in fact, they said, look, we`ve already gone through the review. They didn`t have to include so many details. They chose to affirmatively. They chose to even file for extra room to get the page limit from 20 to 40 pages and to file this big 36-page document with damning evidence of the ex-president`s wrongdoing. They chose to make it public and they chose to make it public for a reason. They are making their case against Donald Trump and they want the American people to know it.
Now, the indelible detail from this extraordinary filing is this image, you have probably seen it, a picture worth 10,000 words. It`s an FBI photo showing a collection of documents found in the container in the so-called 45 office at Mar-a-Lago. These are just some, to be clear, just some of the documents the FBI found when they executed the search warrant earlier this month after Donald Trump claimed he had already turned everything over after his lawyer swear that.
You can see the brightly colored cover sheets, hard to miss right? It`s pretty hard to miss. Look at those documents, indicating the level of classification Secret, Top Secret, and SCI, which stands for Sensitive Compartmented Information. According to the DOJ filing, some of these documents are so sensitive that even the FBI counterintelligence personnel and DOJ attorneys conducting the review required additional clearances before they were permitted to review them. So not like pedestrian banal level classified, like super up near the top of the mountain.
This photo, it`s hard to think of an analogue or precedent here. It`s as close to a smoking gun as he gets short of finding an actual pistol barrel hot to the touch at the scene of a crime with a dead body on the floor. And before we get to the rest of this remarkable document, which shows that Donald Trump is in by far the most acute, immediate legal peril of his life, let`s be clear about the context here.
Ever since the ex-President revealed the search at Mar-a-Lago to the world, remember it was him that said they`re searching my house, the Department of Justice has essentially had its hands tied behind its back in terms of the court of public opinion, because the right and proper way for the DOJ to go about conducting such an investigation, especially one like this, right, both extremely politically sensitive, entirely unprecedented in that regards, and includes the investigation into highly classified materials. Given all that the right proper way to go is to keep mum. That`s the procedure as Attorney General Merrick Garland himself described it just last month.
(BEGIN VIDEO CLIP)
MERRICK GARLAND, U.S. ATTORNEY GENERAL: The central tenant of the way in which the Justice Department investigates, the central tenet to the rule of law is that we do not do our investigations in public. This is the most wide-ranging investigation and the most important investigation that the Justice Department has ever entered into. And we have done so because this represents this effort to upend a legitimate election, transferring power from one administration to another, cost at the fundamental of American democracy. We have to get this right.
(END VIDEOTAPE)
[20:05:31]
HAYES: Now to be clear, Garland there was talking about the Department of Justice investigation on January 6, which don`t forget about that, right? There`s still a grand jury going on in D.C. that`s talked to a bunch of Trump-rolled lawyers, right? But the procedure he`s outlining and defending their right, we don`t investigate in public, applies across the board. It certainly applies in this case. And so, the Department of Justice didn`t put out a press release being like, we`re at Mar-a-Lago today, guys. We`re looking at the president stuff. No, Donald Trump did that, right?
MAGA world has tried from the first moment, right, when Trump announced the world they`re searching Mar-a-Lago to take advantage of the DOJ is correct policy of silence, filling the vacuum with a million different ridiculous, contradictory excuses that we now know to be all lies.
(BEGIN VIDEO CLIP)
REP. MIKE TURNER (R-OH): This sounds more like a bookkeeping issue than it is of a national security threat, which means it doesn`t rise to the level of justifying raiding the former president`s home.
KAYLEIGH MCENANY, FORMER WHITE HOUSE PRESS SECRETARY: They just don`t give a flying flip about how politicized they look, which is terrifying out of the department of the federal government.
UNIDENTIFIED MALE: Well, the rule of law. It`s like a Gestapo.
MCENANY: Yes, it feels that way.
JESSE WATTERS, HOST, FOX NEWS CHANNEL: You know, Trump is a momento guy. You`ve seen inside his office. There`s a lot of clutter, memorabilia.
SEN. RAND PAUL (R-KY): Do I know that the boxes of material they took from our logo, that they won`t put things in those boxes to entrap him. How do we know that they`re going to be honest with us about what`s actually in the boxes? How do we know that was in the box before it left the residence?
WATTERS: What the FBI is probably doing is planning evidence, which is what they did during the Russia hoax. We also have a hunch they doctored evidence to get the warrant.
KASH PATEL, FORMER SENIOR ADVISER TO TRUMP: I know for a fact that President Obama has classified access at one of his home so those such documents exist there.
UNIDENTIFIED MALE: He had a standing order. There`s the word I`ve been looking for. That documents removed from the Oval Office and taken to the residence were deemed to be declassified the moment he removed them.
PATEL: If he says a document is declassified or a set of them, that is it. There is no written material required.
(END VIDEOTAPE)
HAYES: All of that was pure nonsense. All of it has been knocked down. Some of it knocked down in this filing, in fact. But again, it didn`t stop Donald Trump from continuing to fight the Justice Department with a frivolous court filing asking for that special master. Again, they wanted to make more things public, they asked for a special master, right? They were sort of waving the red flag at the bowl — red cape.
So, he`s finally managed to goad the DOJ into just absolutely charging and metaphorically speaking, goring him as they do in this new document. It`s incredibly damning all the way through beyond this photo that we showed you earlier that we will spend a lot more time on. In the filing, the DOJ reveals some of what they know about Donald Trump and his team`s efforts to hinder their investigation.
They alleged that in June, his lawyer “explicitly prohibited government personnel from opening or looking inside any of the boxes that remained in the storage room at Mar-a-Lago giving no opportunity for the government to confirm that no documents with classification markings remain. Remember, this is in June when they`re like trying to basically be like, can we resolve this? Can you give us the documents? No, those are — nope, you can`t look in there. Don`t look in there.
OK, then during the search, or this month, “The FBI, in a matter of hours, recovered twice as many documents with classification markings as the diligent search that the former president`s counsel and other representatives had weeks to perform.” They go on to say they have “Developed evidence that government records were likely concealed and removed from the storage room that efforts were likely taken to obstruct the government`s investigation.” They also share details about how carelessly and improperly the documents are stored.
When officers executed the search warrant, they found classified records strewn about in multiple locations not just in the storage room where they were supposed to be. The FBI recovered, and I quote, three classified documents that were not located in boxes, but were rather located in the desks in the 45 office. Some were mixed in with Trump`s personal items. “The government seized the contents of a desk drawer that contain classified documents and governmental records commingled with other documents. The other documents included two official passports and one personal passport.”
The DOJ notably added, the location of the passports is relevant evidence in an investigation of unauthorized retention and mishandling of National Defense Information. Right, of course, they`re evidence because who do you think is doing that? Not some low-level functionary mixing in the passports with documents in the desk drawer.
Now, I`m not a lawyer. I`m going to speak to several lawyers throughout the hour tonight who will help us understand all the implications here. But even as a layperson, it`s very hard to read this document and not think the DOJ has Donald Trump dead to rights. As Andrew Weissmann who spent 20 years working at the DOJ succinctly put it, “what the brief said silently but clearly is Trump is guilty.
[20:10:11]
George Conway is a prominent conservative attorney and a former Republican and he joins me now. I guess first, let`s start on that. On that note, Weismann`s assessment and whether you share it, this is them saying, we have him. We can we can do this if you want it.
CONWAY: I share his assessment and I share your assessment. They have him dead to rights. And this filing is just — it`s just the most recent explanation of how badly he — what a bad situation he`s in. He has absolutely no defenses that I can see. And they have — they have yet to articulate a coherent defense.
HAYES: The meta-context here is that they didn`t have to do this, right? I mean, what do you — how do you understand the sort of the message of this document as well? There`s the particulars of it which is like we`ve have you, we have all this evidence. But what — why they went out of their way to file this asking come get more space, and then dropping this with the photos and all this evidence?
CONWAY: Well, because they — because the Trump, people have been making all sorts of false claims and irrelevant claims and, you know, making all sorts of sinister suggestions that the FBI has somehow planted evidence or done something wrong didn`t — or didn`t have a basis to execute the search warrant. And the Justice Department, well, if you`re going to — if you`re going to put that out in court, and you`re going to release that publicly, well, the Justice Department has a right to respond and they did.
And it really was just — you know, they just basically hung themselves out there to get — to get just blown off the limb by the Justice Department. And it really was kind of — it was kind of brutal.
HAYES: This is the president`s lawyer today referring to the criminal statutes he`s being investigated under, including obstruction and Espionage Act as mundane. Take a listen.
(BEGIN VIDEO CLIP)
STEVE DOOCY, HOST, FOX NEWS: Those are the biggest secrets in the world. Why would he and apparently the president, former president, went through them in January, why wouldn`t he say, oh, you know what, I really need to turn that back over. Why do we have all that —
(END VIDEO CLIP)
HAYES: I`m sorry. That was a Fox and Friends this morning. That was Kristi Noem being asked by Steve Doocy like, why would you do this? Here`s the president`s lawyer earlier today. Take a listen.
(BEGIN VIDEO CLIP)
ALINA HABBA, TRUMP ATTORNEY: They stay themselves in those papers that they filed that this is under the Presidential Records Act. So, what they did was to try and criminalize Donald Trump as they always do. They found these three mundane statutes, espionage, and the two others, obstruction, and they`re trying to claim that there was some sort of criminal activity.
(END VIDEO CLIP)
HAYES: I`m not sure how far that`s going to — I don`t know if that`s going to work. What do you think?
CONWAY: Yes. Espionage — the Espionage Act is not it`s not mundane. I mean, it`s a highly unusual charge, an extraordinary charge, and an absolutely stunning charge to be leveled potentially at a president of the United States, and it just doesn`t happen every day. And it squarely falls within section 3793 of the — of the Espionage Act, which basically says that if you have National Defense Information, and the government asks for it back, you`ve got to give it back or else you`re committing a crime.
As for the other crimes, you know, she has a point. Obstruction is mundane for Donald J. Trump. So, she sort has a point there. It`s not — it`s not – – it`s punishable by up to 20 years in prison, so it`s really not mundane for the rest of us. But for Trump, you know, he`s got — he`s got a long practice of that. So, she sort of has a point there. But all in all, I think she needs to go back to representing parking garages because she`s not doing her client any good here.
HAYES: Speaking of her client, there is a legal filing in response. I know it just crossed at 8:00 so I`m not sure if you`ve had a chance to look over it. Again, I can`t imagine — again, we`re so far afield from this special master issue that it almost seems a bit like a slideshow at this point if they get one. But is there anything in there to take note of that jumped out at you?
CONWAY: Nothing that jumped out at me other than basically, the lack of content. I mean, the main — one of the main points in the Justice Department brief was that Trump really doesn`t have standing to challenge to make executive privilege challenges before a special master because he can`t assert executive privilege against the executive branch of the United States. And the documents don`t belong to him.
The documents under the Presidential Records Act belong to the United States of America and to the — you know, and in particular to the executive branch. So, basically, he`s got nothing to complain about with the Justice Department`s argument and they don`t really respond to that very well from what I can see here.
They just basically say, oh, well, normally in a search warrant, you get the challenge the search warrant. But what they`re asking for here is for a special master to go through this stuff and, you know, there`s just — there`s just nothing to go through. It`s all in the hands of the archives. The log grants the archives the power to control these documents.
[20:15:22]
HAYES: Your point there about the presidential — I mean, this is a key point, right, because there`s all this stuff that they`ve tried to, you know, around the circle about classification. They`re not his. Like, he took things that don`t belong to him are the — is the core of what happened.
CONWAY: Stolen.
HAYES: Right. That`s another way of saying, stolen. And actually, of all people, Karl Rove laid this out fairly simply earlier today, who again, like anyone that`s had — you know, has gone through this knows this, right? Every staffer, every — this happens all the time. You give the documents over. It was passed in the wake of Richard Nixon attempting to essentially weaponize and monetize his own records, right? So, here`s Karl Rove just laying out the fact that they do not belong to him. Take a listen.
(BEGIN VIDEO CLIP)
MARTHA MACCALLUM, HOST, FOX NEWS: The DOJ is investigating and the Trump side has their lawyers in their feelings about what was rightfully his and able to take. But it`s just interesting —
KARL ROVE, FORMER DEPUTY CHIEF OF STAFF TO PRESIDENT GEORGE W. BUSH: Well – –
MACCALLUM: Go ahead.
ROVE: Let`s be clear — let`s be clear on this. None of these government documents are his to have taken. I agree with the deputy director who said that a lot of the former president`s problems are of his own creation. You can — under the fed — by the Presidential Records Act of 1978, you cannot take original documents out of the White House with you when you leave the White House, whether you`re the President United States or any of his aides. You know, that`s forbidden under the law.
(END VIDEO CLIP)
HAYES: So, the point there that Rove says they`re not his and they brought him on, that is the craziest thing about all this. I have watched him do all kinds of things, previous life and public life where he seemed either to be breaking the law or flirting with breaking the law. And he encouraged Russian sabotage, criminal sabotage of the election, right? He cheered it on. He attempted to blackmail a foreign leader using U.S. foreign policy into like dirty tricks against his opponent. He attempted the first ever essentially coup in the U.S. government history so he could stay in power.
In all of those, the motives are clear. He didn`t have to do this. Like, it`s so wild he has brought this on himself by deciding to just hoard and steal a bunch of documents that weren`t his and lie about it.
CONWAY: And not only that, just — he could have given those documents back last year, and this would have been over.
HAYES: Yes.
And it`s incomprehensible. It`s just — It`s just his — I mean, he`s a sociopath and he`s a narcissist. I mean, he`s a sociopath who knows no bounds, knows no rules, doesn`t care about the rights of others, doesn`t care — he cares only about himself. And even if he, you know, cared about himself, you would think he`d know enough not to do this.
HAYES: Yes, exactly.
CONWAY: But he did it. He just can`t help himself. He`s just so — everything belongs to him. He is the center of his own universe. We are all abstractions to him, OK. We belong to Him. The generals across the river at the Pentagon belong to Him. They were my generals. These documents are my documents. The presidency, it`s mine. I get to keep it. So, if I don`t get to keep it, somebody is stealing it from me.
This is a deranged, defective personality, and self-destructive to the core. And we`re watching him self-destruct in real-time.
HAYES: Yes. And to that point, we just have him in the last hour essentially confessing after all — after all this running around they`re planting the documents, they declassified, he basically — you know, he`s posting that like, well, they didn`t actually find all the stuff on the floor, they took them out of cartons and spread them around the carpet making it look like a big find for them.
That`s him saying like, yes, I knew where they are. They were in the —
CONWAY: In my office.
HAYES: They`re in my office. Like, you just admitted it. Oh, my God, he admitted. George Conway, thank you very much for your time tonight. I appreciate it.
CONWAY: Yes, he`s guilty.
HAYES: Yes. It`s hard not to think he isn`t.
Up next, the Justice Department blows up every Trump defense in one stunning picture. I`m going to go through what it shows us with the former chief of the DOJ counterintelligence section. And it looks like we have some breaking news out of Alaska where NBC News projects, oh my gosh, a Democrat just won the special congressional election beating out Trump`s pick Sarah Palin. I just learned that reading that off the prompter. Wow. Wow. All right, details on that ahead.
(COMMERCIAL BREAK)
HAYES: Just before midnight last night, the Department of Justice filed that motion responding to Donald Trump`s bogus legal request for a special master to review the highly classified documents that he kept in his retirement home. And included in that motion was this picture of some, some of the recovered classified documents labeled secret and top secret, neatly arranged by the FBI on the floor of Mar-a-Lago or not so neatly.
And it became clear almost immediately this is likely one of the most important images in U.S. politics probably from the last decade. It might be very well the kind of thing that will print in history books depending on what happens now. You can immediately see the reaction practically everyone but the most devoted MAGA faithful condemning Trump`s handling of the documents.
Republican Congressman Adam Kinzinger who sits on the January 6 Committee wrote, “This makes me beyond angry. When I get access to these types of docs, they are in a secure facility. I can`t take notes and someone is in the room with me. Trump doesn`t care about this country.” National Security Analyst Tom Nichols said, “As somebody who had a clearance for the better part of 35 years, this picture gives me hives.” I actually saw a lot of people who had clearance say something similar.
It was echoed by retired Army officer Fred Wellman. “I had top secret SCI clearance for 19 years. This photo absolutely sets me off. This is absolutely insane.
David Laufman is the former chief of the Counterintelligence, an export control section at the Department of Justice, where he oversaw investigations and prosecutions of the Espionage Act, violations among other offenses. And he joins me now.
First, I guess, David, as someone who also had clearance for many years, and I`ve talked to a bunch of people in the last 24 hours who did who had very similar reactions, what was your reaction to that photo?
[20:25:38]
DAVID LAUFMAN, FORMER CHIEF OF DOJ COUNTERINTELLIGENCE SECTION: Well, you know, ironically, it struck me as consistent with so many photographs I`ve seen taken in so many executions of search warrants and so many cases involving the mishandling of classified information. So, I was like, oh, there`s another picture of classified information.
HAYES: Right.
LAUFMAN: And then I stop and remember that, oh, this is the former president of the United States` home where classified documents aren`t supposed to be. It`s a standard practice for the FBI to document for the very kinds of attacks you see being lodged against them precisely how they go about executing a search. They mark it by room. They give it numbers and letters. And they display it in a way that often winds up as exhibits in trials in cases where people are actually criminally charged.
So, we`ll see whether this case migrates into that level of astonishment. But, you know, in some respects, this looks to me just like another day, another search warrant, another trove of classified documents being horded by a disgruntled homeowner.
HAYES: Well, that`s — OK, so this is a great point. I want to just stay here for a second because I think to all of us, it was a shocking photo. The context — you know, we were — people aren`t — we`re, we`re not used to — us civilians, like, you know, seeing even any, you know, classified top sheets, or wherever. But what you`re saying is like this photo, some version of this photo is standard operating procedure in precisely the genre of investigation in which the FBI is currently engaged with Donald Trump, but that they do with other people.
LAUFMAN: Exactly right. When they`re conducting with the Department investigation into the mishandling of classified information, and they`ve gotten a warrant authorized to search for and get recover classified information, they are going to document photographically precisely that which they told the judge they were going to find. And that`s exactly they found here. And they are documenting it pursuant to standard FBI procedures. And that`s how things were done.
HAYES: So, let`s I want to go through some parts of this. Just — let`s just start with this first image that highlights these top sheets, which again, I`ve never — I`ve never had clearance in my life, so like this is completely new to me. Just — it`s just fascinating I had like a little peek into this.
Those top sheets, what are they and what`s notable about them is like they make the point that — it`s not it`s impossible to miss. You wouldn`t like have this document sitting there not realize that you had something classified.
LAUFMAN: That`s right. So, these are standard cover sheets required to be affixed on top of the actual intelligence report where the classified information is contained. And it`s a color-coded system. Blue for Confidential, red for Secret, and orange is the color for a Top Secret. Those are the three levels of classification, Confidential, Secret, and Top Secret. Top Secret being the highest where information, if disclosed improperly, could result in exceptionally grave damage to U.S. national security.
And those were the only three levels of classification. There are compartments and controls that reflect additional sensitivity surrounding the sources and methods used to collect the intelligence information in the documents affixed to these cover sheets. And some of these documents found have other markings like SCI, Sensitive Compartmented Information, or HCS, signifying human information, information collected by human assets of an intelligence agency, most likely the CIA.
HAYES: Yes, let`s — that one right there which we`ve highlighted Secret SCI, which is Special Compartmented Information, HCS which is human — some kind of human intelligence. What is the P/SI/TK?
LAUFMAN: Well, those are other compartments. Honestly, I don`t remember what P is. SI typically stands for Signals Intelligence. TK, another compartment. Decades ago when I was at the agency, it referred to an imagery collection platform. I don`t know what it refers to now but let`s just suffice it to say it`s a sensitive collection platform, the fruits of which have nothing — have no reason to be in the private home of a former government employee.
HAYES: The Top Secret/SCI which is the other one which has the highest, we also saw that, right? So, there`s those in the in the background. There`s that Top Secret/SCI. This is a dumb question, but I`ll ask it anyway. What — so there`s three levels of classification, Confidential, Secret, Top Secret, this SCI is Special Compartmented Information. Like, is that a level above those rankings or does it run parallel to it. I`m a little confused.
[20:30:13]
LAUFMAN: It`s not literally, to get nerdy with you, as an actual level of classification, it`s a compartment or control assigned to documents that are classified, typically at least a Secret level or Top Secret signifying that there are exceptionally sensitive collection sources and methods for that intelligence. And so, particular controls and safeguards have to be accorded to how they`re handled, how they`re stored, and transmitted.
HAYES: And then there`s the redactions, which itself is interesting. In one case, which I found fascinating, they even redact the classification. So, you know, the — that shows like these, you know, these front pages, but there`s another one where you see at the top, it says Top Secret, and then it has a slash, and then like, even that part is classified.
Obviously, you have no idea what`s out there. But it`s fascinating that like, even the classification markings themselves are so sensitive that the government can`t show them to you.
LAUFMAN: I mean, there could be some krypton or there could be some control there that in itself is so exceptionally sensitive that the government doesn`t want to risk it being made public. But I`d be speculating about what it is.
HAYES: Well, let me ask you this just quickly. This is not — I mean, the government classifies a lot of stuff. And I`ve covered cases in which people get busted or in trouble for stuff that in the end is not actually that sensitive. Those exist inside of the millions of classified documents the United States government has, these don`t seem to be that just based on what`s available to know. Is that a fair assessment?
LAUFMAN: Well, we don`t know what the subjective nature of the classified information is. But look, suffice it to say that it`s not chopped liver that the FBI found scores of highly classified material in an unauthorized location where the homeowner, so to speak, was on obvious notice that he was in possession improperly of these documents. They were brightly colored cover sheets, as he pointed out. They were found in spaces under his personal control in his office, in his desk, commingle with personal effects, and it points ominously to his potential jeopardy for willful retention of National Defense Information in violation of Section 793 of the Espionage Act.
There are some additional hurdles the government has to surmount to meet its burden of proof, but it`s certainly pointing in the direction of a meritorious prosecution.
HAYES: All right, David Laufman, thank you for sharing your wealth of expertise with us. That was really interesting. Thank you.
Still ahead, making attorneys get attorneys. Why this bombshell DOJ filing could be trouble for the people who are supposed to be defending Donald Trump, next.
(COMMERCIAL BREAK)
[20:35:00]
HAYES: The reason for the Department of Justice filing we`ve been going through tonight was ostensibly to make an argument responding to the request for a special master made by Donald Trump`s legal team, should someone be appointed by the court to look over the documents seized from Mar-a-Lago earlier or this month or not. But what the DOJ said in this filing goes far beyond that. It took the opportunity to make an argument the ex-President potentially violated several serious laws. It is an argument that advances well past any we`ve seen before. New facts and citations, all of which comes right up to the edge of just coming out and saying, this guy committed crimes.
Here to talk through what we learned at the legal ramifications of the DOJ filing and what kind of case they can make, former Federal Prosecutors Cynthia Alksne. Cynthia, I want to get to that in a moment. First, let me just start with the response brief that Trump`s lawyers` file that just came through at 8:00 p.m. if there`s anything — George Conway is sort of reading it in real time off his computer, if you`ve had a chance to go through it, if there`s anything that jumps out of you in there?
CYNTHIA ALKSNE, MSNBC LEGAL ANALYST: Well, I mean, there`s a certain amount of gobbledygook involved, right? It`s a word salad that because it doesn`t really address the issues. My favorite part is on page two. They say, we`re not going to really address the allegations made by the Department of Justice in their brief on pages, I wrote down, three to 14. Well, that`s the meat of it. They aren`t addressing it.
HAYES: Right.
ALKSNE: So, that`s a problem. It`s interesting that this lawyer, Bobb, has not signed it. She`s apparently off. And then the allegations are, you know, we were just cooperating, and if only narrow, had they just followed up with us, everything would have been done, everything would have been hunky dory. So, it`s kind of in keeping with the original motion. It`s not well done, and it`s a word salad and should not carry the day.
HAYES: Yes, it also just seems — the special master seems a little bit of a side — like, even if he got a special master, I`m not sure — like, there`s no — special masters don`t come with time machines, right? So, they found what they found. It`s been reviewed. In terms of the legal implications of what the Department of Justice asserts in its filing about the willfulness, the dodginess, the sketchiness, the deceitfulness on the – – of Donald Trump and his lawyers, what is — what does that add up to you? What does that mean?
ALKSNE: Well, it adds up to the violations of law. And then, if it was you or me, we would be in handcuffs and or in jail. That`s what it means. And it`s interesting sort of lawyer wise today. Tonight, it came out that one of his lawyers in New York filed an affidavit in the New York case that she had personally searched Mar-a-Lago drawers and all, nightstands and everything, looking for the documents in the New York case five days before the subpoena came out from the Department of Justice for the confidential records.
So, now, the New York lawyer has made herself a witness which makes it impossible, frankly, for her to represent Trump in New York. And then here, in this case, we have two lawyers that have a big problem. I mean, the Christina– whoever wrote that — Bobb, whoever wrote it and turned it in and said there are no more documents, that was a lie. There are plenty of documents. There was over 100 documents. So, she`s got a problem.
Either she knew what she was saying was a lie, at which point she`s a co- defendant, and if she didn`t know, she`s a witness. So, either way, she should not be representing Trump. And the same thing is with Corcoran. Even though Corcoran didn`t sign that note, apparently, he confirmed to the Department of Justice lawyers who presumably also had an FBI agent there who wrote it all down, he confirmed to the — to the Department of Justice lawyers that there were no further documents and that they had done a diligent search.
And every time you turn around, the Trump team says they`ve done a diligent search. Again, tonight, in their document, by the way, they use that same terminology, diligence, which is apparently their talking point. None — which isn`t true. And now — so, Evan Corcoran has the same problem. He`s either going to be a witness or he is going to be a co-defendant, and he should not be representing Trump.
And what that means is it`s a real threat for Trump because these people are not going to go to jail for him. And it makes it possible that they are available for flipping. And it`s a dangerous position and they should (AUDIO GAP).
HAYES: That is a great point. I hadn`t sort of put that two and two together. Yes, I mean, the diligent search with which the brief talks about, it says, our agents found twice as many documents in a few hours as your diligent search. Like, they don`t come out and say you lied to us, but that is clearly what they`re saying. And it`s hard to not think that`s the case when you look at the photos and the representations on that piece of paper by the lawyer and then there`s all this stuff. It`s it really is like smoking gun territory.
Cynthia Alksny, thank you so much for laying that out.
Still to come, it seems like the DOJ has Donald Trump dead to rights. Will they indict him? And also, Sarah Palin loses, a totally shoe-in winnable seat in Alaska. A Democrat is going to represent that state for the first time in the state`s history. That`s next.
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[20:45:00]
HAYES: Some really shocking news on this Wednesday night. Just this hour, we`re finally getting the results from Alaska special election to replace the late Republican Congressman Don Young. Don Young represented Alaska in the outlier seat for 50 years since 1972. He`s been a Republican the whole time. The last time the state was represented by Democrat, I misspoke, was back in 1972.
And NBC is projected that the Democrat in that race, a woman named Mary Peltola has won that election, just shocking. You see who she won it over. Sarah Palin, of course, the erstwhile governor, who was then a VP candidate in 2008, and then resigned the governorship and then had a reality show, and then kind of — I don`t know what happened to her, but wanted to get back in the game.
So, she runs in Alaska, which is a very red state. It`s at large congressional district has existed for 63 years. And like I said, for 50 years, the seat was held by Young. In fact, the guy before Young, a guy named Nick Begich, it`s his grandson who ran against Sarah Palin as a Republican. The two didn`t like each other very much.
And well, this is the result. The election to serve out the remaining few months of Young term was back on August 16, two weeks ago. Democrat Mary Peltola faced off against a former Alaska governor. She was of course endorsed by Donald Trump. There you see the other guy, Republican Nick Begich who made a strong showing. There was something of a bitter feud between the two Republicans in the race.
In fact, do you know this? Palin`s former in-laws even threw in Begich a pre-election night party instead of supporting their ex-daughter in law. And because Alaska just started using rank choice voting when voters ranked their preferred candidates in order, if their top choice does not meet a certain threshold, their vote instead goes to their second ranked candidate and so on. You would expect a lot of baggage voters to put Palin number two but not enough did because there was some bad blood, because they didn`t like Sarah Palin.
And so, because they — enough Republicans don`t like Sarah Palin, Mary Peltola, a huge upset win for the Democratic Party, a win that has to buoy the spirits of Democrats everywhere going in the Midterms. It`s not quite. Scott Brown wins Ted Kennedy`s seat in the reverse, but it`s a little in the ballpark. We`ll see.
This comes on the heels of the Democratic victory in New York`s 19 last week. A Democrat had flip the seat that had been Republican-controlled for almost 50 years tonight in a red state special election. Another sign the party`s headwinds are changing heading into November`s elections. Also, Peltola will become the first Alaska native to serve in Congress. She`ll have to run again in November against the same candidates to hold on the seat but one of many fascinating racism folding throughout the country.
Another is a Senate race in Pennsylvania. Republican TV doctor. Mehmet Oz is running against Pennsylvania`s Democratic Lieutenant Governor John Fetterman. Tonight, in his first National Intelligence interview since suffering a stroke back in May, Fetterman sits down with Stephanie Ruhle to discuss the latest on his recovery and a Senate race. Watch the “11th HOUR” with Stephanie Ruhle tonight 11:00 pm Eastern on MSNBC.
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[20:50:00]
HAYES: Though I am married to a brilliant lawyer and law professor, I myself not one. But that said, the 36-page filings from the Justice Department about the documents seized from Donald Trump`s Mar-a-Lago residents sure reads like the DOJ is ready to indict the ex-president, even to a normie like me. Even if that`s true, as Bloomberg points out, it likely won`t happen until after the Midterms.
Under long-standing department policy, prosecutors are barred from taking investigative steps or filing charges for the purpose of effecting an election or helping a candidate or party traditionally 60 days before an election. This year, that would be by September 10, which would makes it unlikely anything would be announced until after November 8, said people who asked to remain anonymous speaking about the potential Justice Department actions.
Paul Butler served as a federal prosecutor with Department of Justice where his specialty was public corruption. He`s now a professor of law at Georgetown. Mona Charen is a conservative columnist and policy editor for the Bulwark. And they both join me now.
Paul, as someone who is in the particularly politically sensitive part of DOJ, public corruption, where a lot of times the people you`re indicting are bringing cases against are themselves politicians, first of all, what do you make of this filing in terms of what it means about the likelihood of an indictment and about the timing as reported by Bloomberg?
PAUL BUTLER, MSNBC LEGAL ANALYST: So, it`s more of the same from Donald Trump not actually addressing the good points that the Department of Justice made in this brief out yesterday, but more attacking the prosecutors and investigators. He didn`t have the nerve to say this time that the FBI planted the evidence, but he didn`t explain why he has a stake in this.
Standing is a legal issue. That means you can`t bring a case or complain about something that doesn`t involve you. And Chris, these documents are the property of the United States of America, not Donald Trump, whether they`re classified or not.
[20:55:24]
HAYES: So, Mona, you wrote a piece about the sort of question of an indictment of Donald Trump, what it would mean for the country. I think you and I have different positions on this, though, I think a lot of people share your concerns. And I think some of the concerns you eliminate are ones that I have as well, right? I mean, like, what would it mean for civic peace in the country? I don`t think those are, like, frivolous or trivial.
But I do wonder what you think just when you read this document about, like, independent of the wisdom about his — whether to indict him, like, his actual guilt or innocence in this matter?
MONA CHAREN, POLICY EDITOR, THE BULWARK: Right. So, look, I struggle with this. I did write that piece sort of laying out many of the problems that I see with a protracted Trump trial. But that much having been said, there is a point when Trump and his people are threatening law enforcement and saying there will be violence in the streets if you indict me when you`re you absolutely have to, because if you don`t, at that point, you have given into extortion.
It was like when Nancy Pelosi went to Taiwan, you know. I mean, you could debate beforehand whether it was a good idea or bad idea for the sitting speaker to go to Taiwan. But once the Chinese government started making overt threats, then you have to go. There`s no choice.
HAYES: Oh, it`s a good point.
CHAREN: Right? So, that`s the situation they`re putting the Department of Justice in it seems to me.
HAYES: That — I think that`s a good — it`s a good analogy because it does seem to me like that is the — they are being — Donald Trump seems to be daring them in a way. I mean, both with the actions and the subsequent thing and his admission now, right, Paul? Like, at some level, what`s so strange about this, and people have used the Al Capone analogy, and Renato Mariotti had a great point about how like, this is almost like a low-level drug case. Like if you get found with the cocaine, like you`re probably guilty. It`s not like complicated. It doesn`t mean like simple — you`re running — your trafficking, you just — you got caught with the stuff.
So, at that level, Paul, there`s also this point that`s serving me, which is like if anyone else got busted with this stuff, like, they wouldn`t be prosecuted. Like if that picture was taken in your living room, you wouldn`t be prosecuted.
BUTLER: Damn Skippy, I would be prosecuted. And I think part of this is about equal justice under the law, Chris. How the people in federal prison right now are there for non-violent drug crimes. Many of those people are Black and Brown. And many of those cases are way more sympathetic than Donald Trump. But he`s — with those folks, prosecutors are still like, well, you did the crime, so you should do the time.
Again, I don`t think that Trump should have a different standard than anybody else. Anybody else who did this will be on their way to being locked up. That`s where Trump should be on his way to be.
HAYES: There is something so —
CHAREN: Yes, I don`t actually agree with it, Chris.
HAYES: Yes, go ahead, Mona.
CHAREN: You know, I mean, I know it sounds like a terrible thing to say, but I do think that realistically, there has to be a slightly different standard for the president. He`s the only person in America who is elected by the people to have access to all classified information. I mean, it`s a different situation from just anybody having it.
And so, unless — so if the information is of a nature that say, endangered human assets, if it`s something along those lines, then obviously, yes, you have to prosecute. If it is a technical violation of just having in his possession, documents that really belonged in the National Archives or under lock and key, that`s a much tougher case.
HAYES: Yes. Go ahead, Paul.
BUTLER: As people get prosecuted for technical violations of criminal law every day, the message that not prosecuting Trump`s sends is that presidents are, in fact, above the law. And in fact, since the crimes listed in the search warrant would have taken place after Trump left office, DOJ would actually be creating a new defense, a former president defense that allow somebody to steal and to subvert justice, to obstruct a grand jury investigation with no consequences.
HAYES: Let me — let me just split the difference here in the last 30 seconds we have here because I`m actually sympathetic to both these arguments. I mean, to me, the thing I keep coming back to is the most egregious crime this man has committed is plotting a criminal conspiracy to stop the peaceful transfer of power that resulted in people being killed that — and was an attempt to basically end of the American experiment as we know it.
Now, I don`t know how makeable a case that is in a legal technical sense, but like, that`s the biggest crime he`s ever committed. This seems a more readily prosecutable crime in which the smoking gun is like sitting there in Mar-a-Lago and I`m sympathetic to why they would do that. But I`m keeping those two things in my head and I don`t know how to resolve that tension.
Paul Butler and Mona Charen, thank you both very much. I appreciate it.
That is ALL IN on this Wednesday night. “ALEX WAGNER TONIGHT” starts right now. Good evening, Alex.