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Transcript: All In with Chris Hayes, 8/15/22

Guests: Betsy Woodruff Swan, Kyle Cheney, Amy Gardner, Cynthia Alksny, Harry Litman


New York Times, in detail, lays out the incredible efforts over a long period of time the federal government has been going through to get back everything that Donald Trump took in contravention of the law. Trump`s lawyer and key coup-plotter, Rudy Giuliani, is now officially a target of the Fulton County investigation into interference in the 2020 election. Washington Post reports that Trump-allied lawyers pursued voting machine data in multiple states. A federal grand jury has subpoenaed Trump administration attorney Eric Herschmann as part of the Justice Department`s investigation into the January 6 attack on the Capitol building.



CHRIS HAYES, MSNBC HOST (voiceover): Tonight on ALL IN.

WILL CAIN, CONTRIBUTOR, FOX NEWS: Famously, President Nixon said if the President does it, then it is not illegal.

HAYES: From the Nixon defense to the Home Alone style chaos after a failed coup.

MARTHA MACCALLUM, ANCHOR, FOX NEWS: Why would they have been packed? Was it because it was such a chaotic time during that January period?

HAYES: Tonight, the breathtaking spin in the wake of the Mar-a-Lago search as we learn more about what the FBI was seeking, what they took, and a fateful meeting with Trump`s attorneys.

Then, huge new developments in Fulton County where America`s Mayor is now the target of a criminal investigation in Georgia.

Plus, the Trump-linked effort to copy data from election systems across battleground states. And why a brand new subpoena for Trump`s old White House attorney could be a very big deal.

ERIC HERSCHMANN, FORMER WHITE HOUSE SENIOR ADVISOR: Now, I`m going to give you the best free legal advice you`re ever getting in your life. Get a great effing criminal defense lawyer. You`re going to need it.

HAYES: When ALL IN starts right now.


HAYES (on camera): Good evening from New York. I`m Chris Hayes. And it is great, really great to be back after two weeks of vacation with my family, which is amazing. I want to send a huge thanks to Charles Blow, Mehdi Hasan, Alicia Menendez for filling in for me for awhile while I was away. You know, it`s August, first two weeks. You think it`ll be slow. It turned out to be a ludicrously eventful two weeks of news, and that has not slowed down today.

We have lots going on. We got more developments in the criminal investigations, plural, into Donald Trump and his associates including his former lawyer, Rudy Giuliani, who is now a target of the criminal probe into alleged election interference in Georgia which will we will have more on later this hour. But I got to begin tonight, of course, with the aftershocks of the FBI search of the ex-president`s Florida residents last week.

Now, I have been watching this from a distance -- how could you not really -- as Donald Trump and his allies have desperately attempted to spin this story. I mean, you know, the headline normally is like FBI searches a, you know, politician, that`s bad for the politician, right? Not good for the person in public life that the FBI is searching. But they have just been frantically cycling through excuses to try to turn this on his head and trying to come up with some explanation for while Trump had 11 sets of classified documents, including some of the various highest level of classification in his home at Mar-a-Lago.

They have abandoned, however, each excuse almost as soon as they put it out because they have all been so implausible. The first line they tried was, as you might remember, attacking Department of Justice and the FBI, accusing them being agents of a rogue regime, executing a wildly reckless search for political retribution. Even though the people overseeing this investigation are someone I like to call the world`s most cautious man, Attorney General Merrick Garland, and Trump FBI director Christopher Wray, the guy that Trump appointed after he fired James Comey.

Trump and his backers even went so far as to suggest the FBI planted documents at Mar-a-Lago. Last Wednesday, in one of his weird fake tweets, Trump wrote, "The FBI would not let anyone including my lawyers be anywhere near the areas that were rummaged. They wanted to be left alone without any witnesses to see what they were doing, taking or hopefully not planting."

Republicans and Fox News also fired up the propaganda machine repeating that bogus conspiracy theory over and over.


SEN. RAND PAUL (R-KY): Do I know that the boxes of material they took from Mar-a-Lago, that they won`t put things in those boxes to entrap him? Yes, 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?

JESSE WATTERS, HOST, FOX NEWS: What the FBI is probably doing is planting evidence, which is what they did during the Russia hoax. We also have a hunch they doctored evidence to get the warrant.

UNIDENTIFIED FEMALE: Quite honestly, I`m concerned that they may have planted something. You know, at this point, who knows? I don`t trust the government.


HAYES: Now, by Thursday, Trump TV had apparently realized that was a little bit of a tough sell, which is not to say, you know, you should just take the word of law enforcement, but the FBI agents planting evidence at Mar-a- Lago, so they trotted out a new defense. He just didn`t realize what the hubbub was. He just wanted to take home some souvenirs.


WATTERS: You know, Trump is a momento guy. You`ve seen inside his office. There`s a lot of clutter, memorabilia. Trump`s team thought they had given them everything they asked for. But the next thing you know, 30 guys show up with guns and want to look in Melania`s closet. What changed?


HAYES: Just a simple misunderstanding. Like, oh, we thought we got to all of it, but we didn`t get to all of it. Like, yes, it`s classified stuff, whatever. On Friday, they tried to shift focus on to one of their favorite boogeyman, of course, President Obama. What about his documents?

In another one of his, again, weird fake tweets, Trump wrote, "President Barack Hussein Obama kept 33 million pages of documents, much of them classified." That`s just a lie. It`s -- there`s no truth to it. And the National Archives who know about this, of course, swiftly responded almost immediately explaining no, no, wrong. "They assumed exclusive legal and physical custody of Obama Presidential Records when President Barack Obama left office in 2017, in accordance with the Presidential Records Act." That, of course, is the law that guides you things and that is how it is supposed to work when you follow the law.


All right, so that one fell apart. He kept going. Trump moved on to the next one, insisting he had waved his magic wand, OK, and through a sort of incantation, a mystical transubstantiation, declassified all the documents at Mar-a-Lago. And of course, one of his allies, again, took to Fox News to spread the new line.


UNIDENTIFIED MALE: This is from President Trump`s office. It just came in a few minutes ago. "As we can all relate to everyone -- as we can all relate to, everyone ends up having to bring home their work from time to time. American presidents are no different. President Trump, in order to prepare the work the next day, often took documents including classified documents to the residence. 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.


HAYES: Standing Order. Just you say standing order and that`s law, and then they`re declassified. And well, first of all, before we even get to that, the very idea that Trump was just like so diligent, so studious, was the end of a long workday, I got to go back to the resident. I got to take this big pile of documents with me and do my homework at night with my reading glasses on. The other thing is that it doesn`t work that way, OK.

Trump`s National Security Adviser John Bolton told The New York Times he had never heard of the standing order Trump`s office claimed to have in place. It is, he said, "almost certainly a lie." I was never briefed on any such order, procedure, policy when I came in, Bolton said. Adding, that he`d never been told of it while he`s working there and had never heard of such a thing after. That seems pretty comprehensive.

So, over the weekend, Trump world moved on to probably my favorite excuse of them all, that he was so convinced that his frontal assault on the American experiment, that is his coup on January 6 would be successful that he would remain in power against the will of voters, he didn`t begin packing until the last minute.

Former aide tells Wall Street Journal, "If you only start packing with two days left to go, you`re just running low on time. And if he`s the one just throwing things in boxes, you know what can happen?" This is my personal favorite because it conjures the image of like a forlorn, wistful Donald Trump stuffing his possessions into a black trash bag like a college freshman on move-out day with an hour to go before you have to be out of the dorm.

It`s ludicrous, ludicrous but probably also their best one because it`s at least plausible, right? Donald Trump obviously was intent on staying the White House. He didn`t think he was going to manage to impose his will, as he so often has in these other situations that he would manage to wriggle out from accountability, right, that he would stay in office. So, I guess it could have just been really sloppy packing. But we all know it was not.

This remarkable reporting from the New York Times, in detail, lays out the incredible efforts over a long period of time the federal government has been going through to get back everything that Donald Trump took in contravention of the law. This spring, the DOJ sent him a subpoena for documents, some of which his advisers say he wanted to keep holding on to. Again, weird but Okay, keep going.

In June, the top counterintelligence official in the Department of Justice -- Department of Justice went to Mar-a-Lago to try to resolve dispute. The Times reports that the team left with additional material marked classified. This is new stuff they hadn`t gotten before. And around that time, also obtained -- get this-- the written declaration from a Trump lawyer attesting that all the material marked classified in the boxes had been turned over.

As the Times points out, the existence of that signed declaration could help explain why a potential violation of a criminal statute related to obstruction was cited by the department is one basis for seeking warrant. The DOJ also subpoenaed surveillance footage from Mar-a-Lago recorded over a 60-day period, including views from outside the storage room which showed that after one instance in which Justice Department officials were in contact with Mr. Trump`s team, boxes were moved in and out of the room.

So, they were forced to issue the search warrant which uncovered surprise, surprise 11 more sets of classified documents just completely and utterly caught red-handed. That`s why we have seen all this frenetic, ludicrous spinning.

Betsy Woodruff Swans is the national correspondent for Politico where she has been closely following this investigation. And she joins me now. Betsy, first to just start off on the picture that has filled in over the week from -- that follow the raid, right? At first all we heard was a raid. It`s like, oh, my Lord, the FBI raid. They searched Mar-a-Lago, right? Now, with what we know, it just seems like they actually were trying to do everything in their power to get the documents back without having to do this. And the Trump people just wouldn`t actually turn it all over.


BETSY WOODRUFF SWAN, NATIONAL CORRESPONDENT, POLITICO: Yes, that`s right. This process took -- my understanding is that it actually took much longer than the typical process would have taken for the FBI to recover sensitive classified documents containing material that`s directly relevant to America`s national security.

In a way the bureau was just extraordinary deliberate and slow-moving in engaging in this process. If there`s room for criticism, that`s probably a point that some folks might make on the other end of the spectrum from Trump. Maybe they should have had this raid sooner. Maybe they should have collected these documents sooner given that they had concerns about the quality of the lock on the -- on the door at Mar a Lago that was securing these materials. It`s -- you know, what`s notable --

HAYES: Also, when --

SWAN: Yes, go ahead.

HAYES: No, no, I was just going to say that, you know, also when you get assigned out to a station from a lawyer, saying like -- I mean, when you send the counterintelligence chief of the FBI down to Mar-a-Lago to be like, gentlemen, can we please be done with this ugly chapter? Can you please just hand over all the documents that are not in your lawful possession and are the secrets of the United States government? Yes, sir, signed it, and lied to you. Like, that`s -- you`re not left with a lot of options.

SWAN: That is -- that is an extremely respectful, polite, and serious step that the Justice Department took to try to get this stuff back that they took long before they actually executed this search warrant. And the official we`re talking to -- talking about the senior official within the Justice Department`s National Security Division focused on counterintelligence. What that means is that within the United States` powerful and very much intelligence-focused Justice Department, this is the guy who is number one most in charge of making sure that America`s enemies and adversaries don`t steal our most important secrets.

That`s what counterintelligence is, for people who aren`t familiar with the term. That`s his job. He`s basically playing defense trying to protect the enormous array of highly sensitive details, documents, information spread all throughout the often leaky U.S. government. He`s the person who the buck stops with short of the very senior political leadership at DOJ.

And the fact that he made this trip personally down to Mar-a-Lago to ask nicely for these documents is a really big deal. The signed attestation from one of Trump`s lawyers is also incredibly important, because on the search warrant which we obtained, it lists just a small number of statutes under which Trump could face legal exposure. One of those statutes is obstruction of justice.

My understanding is that if you or your agent lies deliberately to investigators in order to impede a criminal investigation that`s ongoing, that immediately ratchets up the risk that you will be charged with obstruction of justice. And it doesn`t just have to be the person who`s the target. It can also be somebody working for the target speaking on their behalf lying to investigators on their behalf.

To be clear, we don`t know if Trump has not been charged with obstruction of justice. We don`t know if the -- if the lawyer who is unnamed in this New York Times story believed he was lying. We don`t know if maybe Trump threw a bunch of stuff in these boxes and didn`t realize everything was there. And maybe they -- maybe there was a good faith mistake here that can be explained away. I`m doing a lot of throat clearing.

But what`s important for people to know is the fact that the Justice Department has that signed document is really important. And it probably gets to why obstruction of justice is one of the statutes they`re investigating.

HAYES: And they keep -- again, I think they tried to sort of, you know, turn the tables and I think were successful for, you know, 12 to 24 hours until more and more facts became clear. Now, the -- Trump has said they took his passports. The FBI, according to our reporting, indicates they don`t have possession of his passports. But they are going to try to find some lever here because it does look really bad. And as of yet, the central question that hangs over all this is like, why were you all so obsessed about holding these documents that you didn`t give them over in the multiple chances that you have?


SWAN: Yes, that`s right. The passport piece of it, of course, is the newest recent wrinkle. It should be fairly easy to clear up or whether the FBI has or does not have his passport. That`s not going to be a complicated one either way. And then beyond that, of course, this outstanding question of why these documents weren`t all returned is a huge one.

The other thing that`s important to remember in the context of this is that none of the statutes that are listed on the search warrant require that the material in question actually be classified. So, even if Trump did what he said he did and sort of waved his wand and magically declassified everything, and even if a sympathetic Supreme Court would hold that that counts for declassification, given that presidents do have extraordinary power over classification, even if that`s the case, when it comes to the statutes listed on the search warrant, it doesn`t really matter.

HAYES: Yes, exactly. They`re not yours. You don`t own them. They are not your property. And thus, when you take them, you are stealing. That`s basically where we`re at. Betsy Woodruff Swan, thank you -- thank you very much.

SWAN: Thanks, Chris.

HAYES: Coming up, all right, Rudy Giuliani was Donald Trump`s right-hand man, his go-to guy, his partner in crime. Today we learned Rudy Giuliani as a target in a criminal probe. What that means for his old boss next.




RUDY GIULIANI, TRUMP LAWYER: I do think that the work in my office and other parts of the Justice Department has changed the definition of the problem of crime in America.

City-wide arrests have gone up to record highs, which is one of the ways in which we`ve also brought down crime, we arrest a lot of people.

Maybe we can`t catch all them, but we sure as heck can deliver a message which is if you do get caught, you are going to lose your liberty, you`re going to go to prison.

Nothing disturbs me more than to see all of the revelations of crime committed by some of the most powerful and some of the wealthiest members of our society.


HAYES: Rudy Giuliani has gone from America`s mayor, in quotation marks, to our criminal target in Georgia. Trump`s lawyer and key coup-plotter is now officially a target of the Fulton County investigation into interference in the 2020 election. As Giuliani`s Georgia lawyer once put it, "Target is a designation given by the government to individuals it believes of criminal culpability, and for whom they have indicated an intent to bring formal charges.

You might remember, in the days after the election, Giuliani traveled down to Georgia to try and overturn the election results. That is to steal the election for the loser over the winter. And he wanted to do so by spreading bogus conspiracy theories.


GIULIANI: I don`t have to be a genius to figure out that those votes are not legitimate votes. You don`t put legitimate votes under a table.


GIULIANI: Wait until you throw the opposition out, and in the middle of the night count them. We would have to be fools to think that. So, no need to push it any further, but there`s more than ample evidence to conclude that this election was a sham.


HAYES: Completely untrue, of course, baldly untrue. And those lies about what happened may now be part of Giuliani`s undoing. Now, there`s a certain irony that Giuliani, a guy who built his name on being a tough-on-crime prosecutor and mayor, in some cases, to the detriment of many New York`s most vulnerable residents, is now synonymous with the various crimes and misdeeds of Donald Trump.

From Trump`s blackmail of Ukrainian president to assist Giuliani scheme to dig up dirt on the Bidens, to the possibly illegal plot to create slates of false electors, to civil defamation suits from voting machine manufacturers stemming from again, Giuliani`s repeated baseless conspiracy theories about them. But it`s this latest news we got today about the Georgia case it may be the final note in Rudy Giuliani`s shameful biography.

Joining me now is Kyle Cheney, Senior Legal Affairs Reporter for Politico. Kyle, first of all, this seems like a big deal. What`s the significance here that he is, according to multiple reports, a target of this criminal inquiry down in Fulton County?

KYLE CHENEY, SENIOR LEGAL AFFAIRS REPORTER, POLITICO: So look, the Fulton County investigation has been gradually penetrating Donald Trump`s inner circle for the last few months. And it actually said some of these false electors that Rudy Giuliani helped assemble were also targets now this investigation, criminal targets. So, it`s been encroaching, you know, closer and closer to Trump himself. And prior to this search at Mar-a-Lago was probably the most acute legal threat Trump was facing.

So, now that Rudy Giuliani the target of this probe, it seems, you know, likely again, that the charges will be forthcoming. You know, and he was supposed to testify to the grand jury in that matter, this week, and now it`s unlikely since he`s now at Target and at the very least, would have to plead the Fifth, you`d think. But this is now again, you know, competing with what happened at Mar-a-Lago for the most significant threat to Donald Trump.

HAYES: Yes, to your point, I mean, the D.A. of Fulton County has actually sent what`s called Target letters already to some individuals, something the federal government, the Department of Justice, the U.S. Attorney`s Offices does often. You see it less often in local county prosecutors. But last month, District Attorney Willis informed 16 Trump supporters and state GOP officials who had signed those certificates claiming to be qualified presidential electors, they were also targets the probe.

I mean, I guess the question is, how close is - what do we know about how close that means they are to actually filing criminal charges?


CHENEY: Well, look, the judge who`s overseeing that matter has said he`s not going to unseal any sort of actions or indictments really close to the election. So, I would imagine if we don`t see something imminently, this is going to be something that waits until post-November. But it does seem by many accounts, this probe is nearing its completion. I mean, it`s already - - again, Giuliani being subpoenaed here shows you that they`re at the upper rungs. Senator Lindsey Graham was just ordered by a federal judge at least to testify some -- partially to the grand jury here and we`ll see how -- you know, how his appeal goes there.

But there`s a whole -- you know, they`ve gone after all the highest level players and Donald Trump`s orbit except for Trump himself and Mark Meadows.

HAYES: Yes, and what`s interesting there, I mean, I think when you think about Giuliani being a target, Giuliani was the agent and Donald Trump was the principal. I mean, Giuliani was doing the things he was doing in Georgia if he was doing crimes as appears to be what the county DA`s office now thinks, he was doing them on Donald Trump`s behalf, right?

CHENEY: Right. And you know, and his role in this was multifaceted, as you pointed out. He was spreading lies about what happened in Georgia, including the really egregious lie about some of the election workers who were moving ballots, you know, properly, but became a big conspiracy theory. But he also helped assemble these false electors, who themselves received target letters, but Rudy Giuliani did that in multiple states.

And, you know, he advised Donald Trump about January 6 itself and the procedures there. So, he touches every aspect of this scheme and is one degree removed from Trump himself.

HAYES: He was scheduled, as you noted, to go down to give testimony, which he had fought in court as Lindsey Graham had as well, but he was going to go on Wednesday. You said -- the thinking now is that he will not, given his criminal exposure. Do we -- do we have any updates on that?

CHENEY: No, I haven`t heard from his legal team officially on that. It just seems unlikely that once you`re a target that the relationship changes here. You know, his lawyers said that they were, you know, just sort of surprised to learn this, given that the DA`s obviously called him a material witness up until this point. There was a big debate about whether he could -- he had a medical procedure, so he couldn`t fly to Georgia, so they talked about bussing him down, and there`s a whole big fight about how to get him there for his interview with the grand jury. But now, that may be off the table.

HAYES: This seems in some ways the most acute, present criminal threat to Trump`s inner circle that we have seen thus far. I mean, obviously, Mar-a- Lago was served with search warrants just a week ago. But having your personal lawyer who is the agent of what you were doing, and someone who has been intimately involved in previous schemes be a target of a criminal investigation from an office that seems quite serious, seems to me like the most acute fire in some ways for the Trump legal team.

CHENEY: I think -- I think that`s right. And I think that even after what happened at Mar-a-Lago, that`s still the case today, it`s easy to sort of lose sight of, you know, how these probes -- multiple probes, including the January 6 grand jury investigation have gotten closer and closer to Trump. But I think -- I think still, even in light of what we now know, Fulton County looks like it`s closer than the other probes to leading to higher level charges and you`re more mature probe, and it`s reaching that sort of conclusory stage, you know, faster than the other ones.

HAYES: All right, Kyle Cheney, thanks for your time tonight.

CHENEY: Thanks for having me.

HAYES: Still ahead, an alarming new report that Trump`s team actually accessed voting equipment after the 2020 election. The Washington Post has the exclusive. And one of the reporters who broke that story joins me next.



HAYES: It is wild to me the nearly two years after the 2020 presidential election, we are now just learning that lawyers working with the ex- president were able to get a team of computer experts to copy sensitive data from the election systems in Georgia. This comes from new reporting from the Washington Post that shows as part of their efforts to overturn the election, Trump`s lawyers asked a forensic data firm to access voting equipment in at least three battleground states.

"Attorney Sidney Powell sent the team to Michigan to copy rural county`s election data, later helped arrange for it to do the same in the Detroit area according to the records. A Trump campaign attorney engaged the team to travels to Nevada. The day after the January 6 attack on Capitol, the team was in southern Georgia copying data from Dominion Voting System in rural Coffee County."

Amy Gardner is a Washington Post National Political Reporter and one of the reporters on that story, and she joins me now. This really blew my mind, Amy. So, let`s just walk me through reporting here. Who was this firm and how did they get access to this data? What were they doing?

AMY GARDNER, NATIONAL POLITICAL REPORTER, WASHINGTON POST: So, the firm is called SullivanStrickler. They`re based in Atlanta. We`ve been aware of them for a number of months because one of the places where one of these, you know, breaches occurred is Coffee County, Georgia, where I and my colleague, Emma Brown, have been poking around for a number of months based on tips that there was, in fact, a breach in January of 2021 where outsiders were given access to sensitive election equipment.


And we had heard that SullivanStrickler was involved. We didn`t get any response from them. They hung up on us when we call them months ago initially. But there`s a lawsuit in Georgia, unfolding right now where folks are suing the Secretary of State wanting to decommission these Dominion machines because they believe that they are not secure.

And in that lawsuit, the plaintiffs who are suing the Secretary of State`s office, subpoenaed through discovery, subpoenaed email records from this data firm based in Atlanta and obtained a trove of emails that shows exactly what we had heard had happened in Coffee County and all these other things as well. More evidence of the breach and Antrim, Michigan which has already been reported, evidence of a breach in Detroit, Wayne County, which had not been reported previously. And a little bit more detail about an examination of equipment in Clark County Nevada where Las Vegas is so it was quite a revelatory tranche of emails.

HAYES: OK, so just to be clear -- I just want to be clear, this is not some breach before the election. This hasn`t to do with the results. This is post-election. This is the Trump campaign hiring this forensic firm to go get this data. Now, here`s the thing, can a forensic -- outside forensic firm legally obtained the kind of data that they got?

I mean, you described in one case, the data obtained by the investigators included copies of virtually every component of the county voting system, including the central tabulation server, a precinct tabulator according to directory file names that the CEO for this forensics firm, lawyer sent the plaintiff in the Georgia case. Is this legal?

GARDNER: It`s not in the case of Georgia. In the case of Clark County, Nevada where Las Vegas is, it was actually a court-approved examination that did not go so far as to grant the kind of access that we describe happened in Coffee County, Georgia. But you`re correct that the breach in Coffee County was not legal. The elections director there allegedly allowed these outsiders in. She believed that there was something fishy about the election. She was contacted by people associated with the Trump campaign and the Republican Party of Georgia. And she granted them access, gave them passwords allegedly. And that`s all under investigation by the Secretary of State`s office. And certainly, criminal charges are possible in all of this.

And I think the other takeaway, that`s really important to remember, you make a really good point that this all happened after the election. This was not an attempt to sway the outcome of the 2020 election, it was an attempt, either to show that it was possible to sway the outcome to prove fraud that Joe Biden had stolen the election, or worse, just to sow confusion and to persuade, you know, the millions of Trump supporters that this was possible, even though many of the actors involved, I would guess, knew full well that in fact, it wasn`t possible.

HAYES: Yes, and in fact, ironically enough, right, if you`re paying them to get these copied -- secret copies of data, had they found some legitimate smoking gun, right, we would know about it by now. Like, clearly, whatever data they obtained, did not indicate anything at all. But I still feel like there should be more. I mean, there`s investigation out in Coffee County, there`s two or three other places this has happened. There`s a court order in Nevada, so that`s off the table, but this does seem to be like not OK in any possible way. And there should be some legal accountability one way or the other.

GARDNER: And you`re right that it`s worth pointing out that the people who had this information, this proof that there was this breach in Coffee County, Georgia sat on that knowledge for over a year. This breach happened on January 7, the day after the Capitol attack 2021. And it came out in court in this case in Georgia, initially in February, and this proof just came out today, you know, August, a year and a half almost later, right?


GARDNER: So, it`s worth pointing out that is this about proving that these election systems are vulnerable or is it about optics and making it seem as though these election systems are vulnerable?

HAYES: Yes, really -- a really insidious kind of undertaking. You should note too that this was not freelancing, right? That the record show how Powell`s group, this is Sidney Powell who is representing the president, the ex-president, the president at the time, how Powell`s group discussed exchange and paid for election system data. The plan is intended to bring them to the attention of the judge in the case, provide them the FBI as well as state and local election authorities in Georgia.

Truly, truly stunning stuff. Amy Gardner, thanks for your great reporting. Thanks for joining us tonight.

GARDNER: Thank you, Chris.

HAYES: Still to come --


HERSCHMANN: I said, good, John. Now, I`m going to give you the best free legal advice you`re ever getting in your life. Get a great effing criminal defense lawyer. You`re going to need it.


HAYES: He had one of the most memorable lines of the January 6 hearings. Now, Donald Trump`s senior adviser Eric Herschmann has been subpoenaed before a federal grand jury. Those details next.




HERSCHMANN: The day after Eastman -- I don`t remember why he called me. He`s an a -- or he texted me or called me, wants to talk with me. And he said he couldn`t reach others. And he started to ask me about something dealing with Georgia and preserving something potentially for appeal.

And I said to him, are you out of your effing mind? I said -- I said, I only want to hear two words coming out of your mouth for now on, orderly transition. And then I screamed. I said, I don`t want to hear any other effing words coming out of your mouth no matter what other than orderly transition. Repeat those words to me. And I --

UNIDENTIFIED MALE: And then what he said?

HERSCHMANN: Eventually, he said orderly transition. I said, good John. Now, I`m going to give you the best free legal advice you`re ever getting in your life. Get a great effing criminal defense lawyer. You`re going to need it. And then I hung up on him.



HAYES: That guy is Eric Herschmann. He was once a Trump White House lawyer, and he was just subpoenaed to testify before a federal grand jury investigating the January 6 attack. It appears the Department of Justice is working its way through Trump lawyers. Just two weeks ago, that same Grand Jury subpoena Trump White House Counsel Pat Cipollone, and his deputy Patrick Philbin for their testimony.

Now for context, those three men were all present in the Oval Office when DOJ official Jeffrey Clark tried unsuccessfully to engineer a mini coup and oust his boss, the Acting Attorney General, so he could further Donald Trump`s coup plot. Herschmann and Cipollone were also present for the infamously unhinged December 2020 meeting in the Oval Office about overturning an election that included people like Michael Flynn, Rudy Giuliani, Sidney Powell, and the Overstock guy pushing crazy election conspiracy theories.

Just last month, both Mike Pence`s chief of staff and his head legal counsel testified before that same grand jury. This all gives a real sense things are heating up in the criminal investigation in January 6. I`m not a lawyer, but I can`t imagine it`s good for the ex-president to have all his lawyers being subpoenaed to testify before a criminal grand jury by the Department of Justice. But hey, what do I know?

Next, I will ask two former federal prosecutors what they think.



HAYES: Donald Trump is having a pretty lousy month. Exactly a week ago, the FBI executed a search warrant on his Florida home, recovering several sets of highly classified documents. Two days after that, Trump invoked his Fifth Amendment right against self-incrimination more than 400 times in a deposition before New York State Attorney General Letitia James in her probe of his business practices.

Today one of his lawyers was called to testify before the D.C. grand jury that is conducting a criminal probe into January 6. That is the same grand jury that recently subpoenaed his White House Counsel and Deputy counsel. Now, his personal lawyer Rudy Giuliani has been informed he`s a target of the Fulton County, Georgia district attorney`s investigation into election interference in that state.

Harry Litman is a former Deputy Assistant Attorney General of the Department of Justice. Cynthia Alksny is a former federal prosecutor. And they both join me now. All right, so I am back from vacation and had to kind of like spend half a day to just catch myself on the three-ring circus of criminal investigations. I guess I want to -- let`s just start with the federal grand jury, Cynthia.

I`m not knowing quite what to make of it. But, you know, it seems quite serious. You`ve got Marc Short. You got Greg Jacob. You now have the President`s own lawyers being subpoenaed, Herschmann being the latest, but Cipollone and Philbin. What does all of that indicate to you?

CYNTHIA ALKSNY, FORMER FEDERAL PROSECUTOR: Well, it indicates that the Department of Justice has begun the grand jury -- the criminal grand jury investigation, and it`s like pulling a thread on the sweater. I mean, it starts with January 6, and that morphs into the electors. And that morphs into the beheading at the Department of Justice and the attempted coup. And that morphs into the attempt or at least the discussion of the military seizing voting machines. I mean, it is a -- it is a growing and growing and more and more serious investigation every day.

And I think you`re right. I imagine the pressure that the president must feel. Not only does he have this investigation, which is a serious and looming threat, but the Mar-a-Lago investigation, the affidavit just filed by the Department of Justice, was signed by the United States Attorney and the head of the Counter Intelligence Division. That`s not good.

When the head of the Counterintelligence Division is after you, that is not good. That is a bad day. And that`s what`s happened to the President and the walls are closing in.

HAYES: Yes, I mean, at some level, right, Harry, like, we`ve been covering this for so long as someone who has skated for so long. I mean, if you go back even to the stuff that they were caught doing in Atlantic City, that they were able to kind of -- the Trump business and Trump personally, were able to kind of wriggle out of serious consequences. If you look at the New York Times reporting with the tax documents, tax activities that numerous experts who looked at the actual documents said this is pretty much outright fraud. So, you`re always like, well, he seems to get away with everything.

Another kind of line on that, right, was a New York District Attorney Cy Vance who had started that investigation which has been handed over to Alvin Bragg, this is the one thing on the other side of the ledger, I think, for Donald Trump was that Allen Weisselberg, the guy who knows his finances better than anyone, is now nearing a plea deal with prosecutors from that office, but would not cooperate with a broader investigation to Mr. Trump, according to two people with knowledge of the matter. And I think six months ago, this news would feel like oh, well, he has -- he has escaped again, but it does not feel that way right now.


HARRY LITMAN, FORMER U.S. DEPUTY ASSISTANT ATTORNEY GENERAL: He is an escape artist, but there are so many daggers coming at him from so many directions. You know, eventually Harry Houdini died also. Look, he`s just in the last couple of days, has really taken on huge threats from three different places. So, Herschmann is a big one, as Cynthia says. And remember, he doesn`t have any personal attorney-client privilege and any executive privilege he has to yield. He can try to delay but he has to talk.

In Georgia, Giuliani is a 78-year-old megalomaniac, hard to see him going to jail for the rest of his life for Trump, so he`s now a mortal threat to the former president. And an interesting twist there, an indictment of Trump will be delayed by all kinds of legal challenges, not Giuliani. There`s no problem with indicting Giuliani there.

And then finally, in Georgia, this affidavit, a complete separate crime lying to the feds. And whoever this lawyer or lawyers is, New York Times says it`s more than one, a third really dangerous person for Donald Trump because whether innocent or not, he or she can detail criminal conduct.

And by the way, on all three cases, conspiracy conduct as well. So, I agree, we`ve seen him duck, and bob, and weave, and lie his way out of a lot of things. But the sheer numbers of it and the gravity of it, it seems different.

HAYES: Yes. Well, I mean, also the sort of way probability works, right, is you know, you multiply the probabilities, right? So, the odds of breaking out of one times the odds of rigging around another, time the odds of rigging around another, you know, you get -- you get relatively some chances.

On the question of the -- of the documents, Cynthia, to come back to that, right, I mean, like, I can`t -- I guess I can`t quite figure out what this is. Because I guess the most charitable reading, right, if you`re being the most bullish of the legal prospects of Donald Trump is that they just wanted the documents. They didn`t want to have to do this. And their hand was forced to now they have that. But you`re shaking your head no.

ALKSNE: I`m shaking my head no because if they just wanted the documents, they wouldn`t have chosen espionage and obstruction also. They would have done the simpler charge. But since they`ve added the espionage and they`ve -- and particularly the obstruction, that tells me that they have a lot more to go. And then when you add the response by the Department of Justice today, which is clear that they have inside sources that they need to protect, and they have an ongoing investigation.

So, to me, the -- you know, hope springs eternal for the Trump people, and it`s worked for them for a long time. But it`s not going to work this time because just returning the documents is not going to satisfy the Department of Justice.

HAYES: Yes, there was a filing today, we should know, in which the department objected to the unsealing of the associated affidavit saying that would imperil an ongoing investigation and folks that are cooperating with that investigation. The sleeper to me here -- I mean, so January 6 has always seemed like there was clearly a crime committed here. I don`t -- I don`t know what the statutes are but if attempting to end 240 years of the American experiment isn`t a crime, then crime has no meaning, right? And the documents here are fairly clear cut in so far as you know, they appeared to lie about it.

The Georgia case with Giuliani, Harry, is always seemed to be the least likely but I have to say that the DA`s actions in that county have been very serious, quite aggressive, and very no-nonsense in a way that seems like that is actually quite mature as a criminal under -- investigation.

LITMAN: Look, I do think it`s quite mature. And I do think she`s made many different signals that she is prepared to indict the former president. And that way, it`s always seemed the most serious. However, relative to the others, it also has the most problems going forward, not just evidentiary and legal but that`s why I focus on Giuliani.

And so --and the other ones, it`s -- I think it is true that they came with -- the spearhead was to get the documents back. But now they have them and they`re on two tracks. There`s the security track and what kind of damage has there been, but there`s a law enforcement track. Keep your eyes on the Southern District of Florida and what could happen there. Even if their initial motivation was primarily to get the documents back, it could still eventuate in charges.

But one last point. I don`t think it -- I think it will be bound up in an overall strategic decision about all the cases.

HAYES: Yes. Yes, I think that`s right. Harry Litman and Cynthia Alksne, thank you both.

LITMAN: Thank you.

HAYES: That is ALL IN on this Monday night. And "THE RACHEL MADDOW SHOW" starts right now. Good evening, Rachel.