THE "WASHINGTON POST" IS NOW REPORTING THAT FORMER PRESIDENT
TRUMP IS RUSHING TO ASSEMBLE A TEAM OF VETERAN LAWYERS TO
DEFEND HIM FROM POTENTIAL CRIMINAL EXPOSURE AFTER
CONFIDENTIAL DOCUMENTS WERE RECOVERED FROM HIS FLORIDA HOME
BUT KEEPS GETTING REJECTED. WE KNOW OF TWO HIGH PROFILE
LAWYERS REPRESENTING TRUMP, KEVIN O'CONNOR AND JIM TRUSTY A
FORMER FEDERAL PROSECUTOR. TRUMP AND HIS ALLIES HAVE PUT
FORTH A NUMBER OF ARGUMENTS FOLLOWING THE SEARCH.
LET'S TALK MORE ABOUT THOSE ARGUMENTS AND HOW EFFECTIVE THEY
MIGHT BE. WITH US CNN'S SENIOR LEGAL
ANALYST AND FORMER FEDERAL PROSECUTOR ELLIE HONING.
THEIR DEFENSE HAS EVOLVED, RIGHT, BUT THERE ARE SOME
DISTINCT THEMES AND LET'S DISCUSS HOW VALID THEY MAY OR
MAY NOT BE BASED ON THE EVIDENCE THAT WE HAVE.
DEFENSE NUMBER ONE THEY'VE ARGUED ALL THESE DOCUMENTS HAD
BEEN DECLASSIFIED. >> LET'S START WITH WHAT WE
KNOW, JOHN. FOR SURE WHEN THE FBI WENT INTO
MAR-A-LAGO THEY SEIZED BOXES THAT WERE MARKED WITH CONTAINING
CONFIDENTIAL AND CLASSIFIED DOCUMENTS, UP TO AND ASKING
TS/SCI DOCUMENTS WHICH IS THE HIGHEST LEVEL OF CLASSIFICATION.
NOW, LEGALLY CONSTITUTIONALLY THE PRESIDENT HAS EXTREMELY
BROAD, ARGUABLY UNLIMITED POWER TO DECLASSIFY DOCUMENTS AT HIS L
YES, THERE ARE RULES, REGULATIONS THAT KIND OF THING
BUT I THINK THE BETTER CONSTITUTIONAL ARGUMENT IS THAT
IT'S UP TO THE PRESIDENT. THE QUESTION HERE, THOUGH, IS
DID HE -- DID HE ACTUALLY EXERCISE THAT CONSTITUTIONAL
POWER TO DECLASSIFY WHILE HE WAS IN OFFICE?
NOW, I'VE SEEN NO CONVINCING EVIDENCE THAT HE DID.
YOU WOULD EXPECT THERE TO BE SOME SORT OF PAPER TRAIL AND IN
FACT YOU CRAFT THE CASE TO AN EXTENT THE OTHER DAY WHEN JOHN
BOLTON THE FORMER NATIONAL SECURITY ADVISER TOLD YOU THIS,
THERE WAS NO STANDING ORDER. I WAS NOT BRIEFED ON ANYTHING
LIKE THAT. I NEVER HEARD T I NEVER SAW IT
IN OPERATION. NEVER KNEW ANYTHING ABOUT T I
JUST THINK IT'S A COMPLETE FICTION.
JOHN, MORE TO THE BIG POINT HERE, THE THREE CRIMES THAT DOJ
ALLEGED IN THE DOCUMENTS THAT GOT AT THE SEARCH WARRANT, NONE
OF THEM HAVE ANYTHING TO DO WITH WHETHER THE DOCUMENTS ARE
CLASSIFIED OR DECLASSIFIED AND EVEN IF THEY WERE ANTICIPATING
THIS ARGUMENT SO IT DOESN'T REALLY MATTER WHEN YOU'RE
LOOKING AT THOSE SPECIFIC CRIMES.
>> ANOTHER DEFENSE THAT TRUMP AND HIS ALLIES HAVE PUT FORWARD
IS THE FBI COULD HAVE ASKED NICELY.
>> THAT ONE DOES NOT STAND UP. FIRST OF ALL, CALLING THIS A
SEIZURE -- SAB THEY DIDN'T NEED TO SEIZE ANYTHING, THEY BROKE
IN, SAYING THIS WAS A RAID, THAT IS NONSENSE BECAUSE WE KNOW THAT
THIS WAS TAKEN TO AND APPROVED BY A FEDERAL JUDGE, WE'VE SEEN
THE DOCUMENTS, HE SIGNED THE FORMS, THESE ARE THE STANDARD
FORMS. DONALD TRUMP WILL HAVE A CHANCE
TO CHALLENGE THIS IN THERE COMES A DAY WHEN HE'S CHARGED.
THE WAY IT WOULD WORK, DOJ IF THEY SEEK AN INDICTMENT THEN
DONALD TRUMP GETS THE PAPERWORK, HE CAN GO TO COURT AND SAY THIS
SEARCH WAS DONE IN A WAY THAT VIOLATES MY RIGHTS.
IF WE LOOK AT THE FACTS HERE, THE TIMELINE, THIS NOTION THAT
THEY COULD HAVE HAD IT IF THEY JUST ASKED NICELY REALLY DOES
NOT MEASURE UP. BACK IN JANUARY NATIONAL
ARCHIVES THEY ASKED NICELY THEY GOT SOME OF THE BOXES NOT ALL.
MAY AND JUNE DOJ ASKED NICELY THEY SERVED A SUBPOENA, THEY GET
SOME MORE OF THE DOCUMENTS BUT STILL NOT ALL AND FINALLY IN
AUGUST THEY EXECUTED THE SEARCH WARRANT.
SO THIS NOTION THAT, WELL, THEY JUST HAD TO ASK, THAT REALLY
DOESN'T STAND UP, EITHER. >> I WILL TRY TO ARTICULATE THIS
OTHER DEFENSE THE BEST THAT I UNDERSTAND IT BECAUSE IT'S A
LITTLE HARD. SOMEHOW HE'S ARGUING THAT THE
DOCUMENTS TAKEN WERE COVERED BY EITHER EXECUTIVE OR
ATTORNEY/CLIENT PRIVILEGE. >> THIS ONE IS REALLY A RED
HERRING. EXECUTIVE PRIVILEGE ONLY APPLIES
TO CERTAIN COMMUNICATIONS BETWEEN THE PRESIDENT AND TOP
ADVISER NOT TO CRIMINAL-HE LATED COMMUNICATIONS.
ATTORNEY/CLIENT PRIVILEGE IS OUT OF LEFT FIELD THAT WOULD ONLY
APPLY BETWEEN TRUMP AND HIS ATTORNEY.
EVEN IF THOSE ARGUMENTS APPLY, I DON'T THINK THEY DO, YOU DON'T
GET TO TAKE THEM HOME WITH YOU. IT DOESN'T MEAN YOU PERSONALLY
POSSESS THOSE DOCUMENTS. >> AND THERE'S THIS SORT OF
FOURTH AREA THAT THEY ARE NOT LEANING INTO, ELLIE, BUT MIGHT
MATTER HERE. >> YEAH, SO EVERYONE IS SORT OF
FOCUSED ON DONALD TRUMP'S DEFENSES.
I UNDERSTAND WHY. BUT LET'S NOT MISS THE SORT OF
IMPORTANT FIRST POINT. IN ANY CRIMINAL PROSECUTION DOJ
HAS THE BURDEN OF PROVING BEYOND A REASONABLE DOUBT AND THE KEY
ISSUE IS GOING TO BE DONALD TRUMP'S KNOWLEDGE AND INTENT.
DID HE KNOW WHAT WAS IN THOSE BOXES AND DID HE HAVE THE
CRIMINAL INTENT REQUIRED BY THE VARIOUS STATUTES TO BREAK THE
LAW? A COUPLE OF IMPORTANT THINGS ON
THAT POINT. WE LEARNED YESTERDAY REPORTING
FROM MAGGIE HABERMAN, "NEW YORK TIMES," IS THAT DONALD TRUMP
SAID SOMETHING LIKE THEY'RE MINE.
>> THEY'RE NOT THEIRS, THEY'RE MINE.
>> THAT WOULD GO TO KNOWLEDGE AND INTENT.
WE KNOW THAT DOJ HAS SPOKEN WITH PAT CIPOLLONE AND PAT PHILBIN, I
WOULD BE ASKING THEM QUESTIONS THAT GO TO KNOWLEDGE AND INTENT.
DID DONALD TRUMP KNOW WHAT WAS IN THOSE BOX AS SOON AS DID HE
KNOW ABOUT THEM BEING SENT TO MAR-A-LAGO.
THAT COULD BE KEY EVIDENCE FOR THE PROSECUTION'S CASE.
>> THERE ARE A FEW SENTENCES THAT GO DIRECTLY TO THIS MAYBE
VERY IMPORTANT GOING FORWARD. COULD BE PART OF THE AFFIDAVIT
WE MAY OR MAY NEVER SEE. THANK YOU VERY MUCH FOR THAT.