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Transcript: All In with Chris Hayes, 8/23/22

Guests: Alexis McGill Johnson, Andrew Weissmann, Nancy Gertner, Amy Gardner

Summary

National Archives letter to Donald Trump lawyers in May detailed urgency of Mar-a-Lago documents probe. National Archives letter to Trump lawyers says that documents found at Mar-a-Lago were among the government`s most classified. It is election night in three states tonight, New York, Florida, and Oklahoma. Legal experts point out gaps in Donald Trump`s Mar- a-Lago motion. Washington Post reports files copied from voting systems were shared with Trump supporters and election deniers.

Transcript

ALEXIS MCGILL JOHNSON, PRESIDENT, PLANNED PARENTHOOD ACTION FUND: -- actually transform the way in which people understand not just what it means to fight for abortion access, but what it means to actually transform how we vote in each state and vote local to ensure that protection. That`s what`s at stake right now.

JOY REID, MSNBC HOST: And by the way, hopefully the message is being communicated. It`s control of state legislatures that determines who controls your body at this point, state legislatures and governors.

Planned Parenthood Action Fund President Alexis McGill Johnson, thank you very much for all you do. And that is tonight`s REIDOUT. "ALL IN WITH CHRIS HAYES" starts now.

(BEGIN VIDEO CLIP)

CHRIS HAYES, MSNBC HOST (voiceover): Tonight on ALL IN, a five-alarm fire at the National Archives over Donald Trump`s failure to return top secret documents. Tonight, the newly published letters to the ex-president. And Andrew Weissmann on how each revelation keeps making things look worse for Trump. Then --

LAURA INGRAHAM, HOST, FOX NEWS: President Trump`s legal team requested the appointment of a special master.

UNIDENTIFIED FEMALE: You know, this is kind of a last resort situation.

HAYES: Why a Trump-appointed judge is scoffing at his attempt to slow down the investigation.

And if it`s election night, Steve Kornacki is here for all the results from New York, Florida, and beyond when ALL IN starts right now.

(END VIDEO CLIP)

HAYES (on camera): Good evening from New York. I`m Chris Hayes. We do indeed have a lot going on tonight as you can see from the bottom of your screen there because it is an election night. We`ve got primary elections in three states, New York, Florida, and Oklahoma. Now, polls have just closed in Florida and Oklahoma. There`ll be closing in New York at 9:00 p.m. New Yorkers, if you`re watching this, you still have an hour to vote.

In Florida, I can tell you now that NBC News projects former governor and current Congressman Charlie Crist who`s had a pretty remarkable career as the projected winner of the Democratic primary for governor, defeating Florida Commissioner of Agriculture Nikki Fried. She`s the only statewide Democrat in that state. He will then be running against Ron DeSantis, Charlie Crist, for his old job as governor of Florida.

Congresswoman Val Demings is the projected winner of the Democratic primary for Senate. She will face off in a marquee Senate race with Republican Senator Marco Rubio in November. We`re going to bring you some more updates. Of course, the great Steve Kornacki will be here to take us through all the races to watch in just a little bit.

But the news continues to break two weeks now since the FBI searched on Trump`s home at Mar-a-Lago with every new revelation every day. The facts just keep getting worse for the ex-president. You don`t have to take my word for it. Trump`s Republican allies have made that very clear all on their own. In their attempts to defend him, they`ve been running around painting hypothetical thought experiments about how bad the situation could be. Sure the ex-president took a bunch of classified documents from the White House, but how classified are they really?

(BEGIN VIDEO CLIP)

REP. MIKE TURNER (R-OH): You can say nuclear weapons, but there are things that are highly, highly classified. There`s things that are not extremely classified but are nonetheless classified. It would be very, very narrow of anything that just has the umbrella of nuclear weapons in it that would rise to the level of an immediate national security threat.

(END VIDEO CLIP)

HAYES: That was a top-ranking Republican in the House Intelligence Committee, Congressman Mike Turner of Ohio, saying that it might not be a big deal that Trump had nuclear secrets sitting around Mar-a-Lago. Now, that was his argument in the first few days after the search. He has since tried out a bunch of other defenses, including recently claiming the ex- president just used the classified documents so he could sit down and write his memoir.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: What use could a former president have for classified or top secret information? once he`s left office? Why bring it home with him to Florida?

TURNER: Well, I don`t know. I mean, you have to ask him. But certainly, we all know that every former president has access to their documents. It`s how they write their memoirs. They don`t have access -- you know, great recall of everything that`s occurred in their administration.

(END VIDEO CLIP)

HAYES: I mean, first of all, access to their documents is key here, right? They`re not retaining it. But also, it`s kind of fun to visualize Trump burning the midnight oil sitting at his desk at Mar-a-Lago, top secret documents splayed across the room, feverishly writing his memoir. Mike Turner is not the only Republican has tried this odd defense of talking about all the hypothetical worst documents Trump could have taken to Mar-a- Lago.

Congressman Chris Stewart of Utah, also a member of the Intelligence Committee, painted this worst-case scenario in an interview with political earlier this month. "I mean, if he had actual Special Access Programs to some of the government`s most highly classified material, do you know how extraordinarily sensitive that is? That`s very, very sensitive. If that were actually at his residence, that would be a problem, but we just don`t know that. So let`s find out."

Congressman Mike McCaul of Texas, a top Republican on the foreign affairs committee added, "When you get to compartmentalize classified spaces, it gets more spurious." Well, guess what, Congressman? That`s exactly the kind of information the FBI recovered at Mar-a-Lago two weeks ago. We now know that thanks to this letter, written May 10 from the National archivist to Donald Trump`s lawyer, that recovery of the FBI wasn`t the first such recovery of those kinds of documents.

This letter was first made public by conservative journalist, Trump loyalists John Solomon. And in the letter the archivist prefers to the first 15 boxes of records, they recovered from Mar-a-Lago in January. She writes, "In its initial review of materials within those boxes, the National Archives identified items marked as classified national security information up to the level of top secret and including Chris Stewart, Michael McCaul -- McFaul, Sensitive Compartmented Information and Special Access program materials," precisely the type of extremely secret material Donald Trump`s backers called, "more serious and a problem."

[20:05:34]

In fact, this letter shows that basically everyone in the federal government who was right down on this and was aware of these documents and how top secret they were, were ringing the alarm bell. The archivist goes on to quote a previous letter the Department of Justice`s national security vision division sent Trump`s lawyer in late April laying out the "important national security interests in the FBI and others in the intelligence community getting access to these materials."

They also reveal that in just -- again, those first 15 boxes, they had to kind of pry out of Donald Trump, they didn`t get till January, they found over 100 documents with classification markings comprising more than 700 pages. That`s the first batch turnover. DOJ continues, "access to the materials is not only necessary for purposes of our ongoing criminal investigation, but the executive branch must also conduct an assessment of the potential damage resulting from the apparent manner in which these materials were stored and transported and take any necessary remedial steps.

That`s a representation of the overall tone of this letter, which is quite serious the whole way through, which makes sense considering where it falls in the timeline of the U.S. Federal Government`s many efforts to get these documents back from Donald Trump.

The National Archives first contacted Trump back in May of 2021, more than a year ago about the missing documents. They tried again that fall before initially retrieving 15 boxes of records from Mar-a-Lago in January this year. Then they get all those boxes, right, they`re like, OK, here`s a bunch of boxes. Wait, what? They go through them, we now know, and find they contain 700 pages of classified documents. That freaks them all out.

The National Archives refers the matter to the Department of Justice the following month. They sent Trump`s team a letter in April, informing them they will be giving the FBI access to the documents recovered in January, as soon as the following week, because well, they`ve got to do an assessment of the possible damage here. This letter, the one we`re now seeing for the first time came on May 10. We know that Donald Trump received a subpoena for the documents later that month, right?

So, they sent him a letter being like, dude, this is a bad week. This is not good. We`re letting the FBI have these. We need to get all these documents. Then after that, there`s a subpoena, right, where a court says you have to turn on the documents. Then federal officials visited Mar-a- Lago in June. This is not the search warrant. This is they come and they took more documents, which he`s still holding on to and that`s before the FBI finally goes the final mile, executing the search warrant two weeks ago.

Now, since the very beginning of the story, there has never really been a question about some of the basic facts, for instance, whether Donald Trump took documents that were not his to take. We know unequivocally, they weren`t his take. He should not have remove these documents from the White House and brought them to Mar-a-Lago. They belong under laws to the National Archives.

So, the next question was, well, was there classified material among these documents? And again, that`s not really up for debate. The answer that is a clear yes. In fact, in defending Trump, many of Trump`s spokespeople seem to have essentially conceded that point. So, then the next question, the one we heard Trump`s allies asked was, well, how classified are they? Because it`s true, a lot of stuff is classified in the government and a lot of stuff is over classified, frankly. So, are we talking about the highest levels of classification or, you know, just like more pedestrian classification?

Well, we now know the answer to that. They were among the most highly classified material, the kinds of material that Trump`s Republican defenders in Congress identified before it was revealed as the really problematic stuff. So, then the final question, the biggest one, the one that matters the most, I think, at this point legally is was Trump`s action willful or was it sloppy? And I will say, at first, it wasn`t that clear. I was agnostic about it. I didn`t know. I mean, you never expect the best with Donald Trump. But also, clearly this is not the most careful person in the world. Like, who`s got the best document retention practices?

So, it seemed to me there could be a plausible story of sloppiness. But the barrage of facts we`ve gotten since the search of Mar-a-Lago has shown how almost obsessively single-mindedly willful this was. As a New York Times report today, "Two former White House officials, who had been designated as among Trump`s representatives with the archives tried to facilitate the documents` return." But the ex-President resisted those calls describing the boxes of documents as "mine." That`s according to three advisors familiar with his comments which by the way, side note Donald Trump, looks like you got some folks talking about a turn in that operation there.

Now, according the Times, Trump -- and this is really -- I can`t believe this. Trump also went through the boxes himself in late 2021 before turning them over. Now, just keep in mind what boxes we`re talking about, remember. That was just the 15 boxes the National Archives took in January containing the 700 pages of classified material which we now know is nowhere near everything.

[20:10:32]

The Times doesn`t explicitly say this, but just to underline what they appear to be implying, it looks like maybe he went through and just kept some of it and turnover others. It goes on. The Mar-a-Lago surveillance footage that DOJ subpoenaed in June, "raised concerns for investigators, again, revealing people moving boxes in and out and in some cases appearing to change the containers. Some documents were held in.

OK, what are we doing here? Nearly impossible at this point on a good faith reading of the available evidence, which maybe some of it is wrong, but a lot of it`s uncontested, impossible not to say this was not willful, or more plainly, this was willful. He took it. This is a guy who just took a bunch of top-secret documents home from the White House because he wanted them. For what motivation? I don`t know. But that`s not even that germane because he decided they were his. He tried to hide them and to keep them after being repeatedly instructed to return them.

Andrew Weissmann spent years working in the Department of Justice, most recently served as lead prosecutor in Robert Mueller`s special counsel investigation. He now teaches Criminal and National Security Law at New York University. And he joins me now.

Andrew, first, let`s just talk about the letter and what the letter adds, the letter that we now have from National Archives, adds to the full picture of the timeline here and the -- and the efforts of the various parts of the federal government went to, to try to retrieve all of the classified documents that were supposed to be turned over to.

ANDREW WEISSMANN, FORMER LEAD PROSECUTOR, ROBERT MUELLER`S SPECIAL COUNSEL INVESTIGATION: Yes, I`d say the letter is quite odd because it was disclosed first by John Solomon who, you know, works for the former president. And as a designee by the former president to the presidential records, that would be kept by the National Archives. But the letter is incredibly damning to the former president. It really is odd as to why he released it.

And the way it`s damning is exactly as you say, Chris, which is the time period between when the former President left office, and today is the most damning evidence because, you know, there`s one version of a defense, which is, hey, it was chaotic when I was leaving, and I didn`t really know what`s in the boxes, and I didn`t intend to take them. And as soon as it was called to my attention, I returned everything. That`s one story.

The problem is that this letter, among many other things that you`ve pointed out, makes that not a possible factual defense, because over and over again, the Department of Justice was trying everything and bending over backwards as was the National Archives to do everything short of a subpoena and short of a search.

That letter actually, one of the more shocking things is, even though there`s a clear national security imperative to do an assessment of what happened to those documents, that letter is on behalf of Donald Trump saying, please delay that. We do not want these documents shared with the intelligence community, the FBI, the CIA, the NSA to do that assessment.

I mean, talk about unpatriotic. But in terms of the criminal case that`s going on, it makes the issue of was this an accident or was it intentional, I think beyond a reasonable doubt.

HAYES: Yes. So, I want to read from you -- again, the Espionage Act and I`ve said this before, I think is in many ways a bad law. It has certainly been used I think in incredibly questionable ways in the past. It`s passed during the Red Scare in the Wilson administration. But just to be clear on what it says here, right? I`m not going to read the whole thing but it says basically, whoever lawfully having possession of access to control over being entrusted with and it lists all these things, right? You get notes, or appliances, blueprints, maps, right, that have National Defense Information. And willfully return is the same, and then get this, and fails to deliver it on demand to the officer and employee of the United States entitled to receive it.

Like they add an extra bar in the statutory language that says this can`t be an accident. It also has to be the case that if they come calling because you have it, you get a chance to turn it over and basically not meet the criteria for willful retention. But if you don`t turn it over, then maybe you`re in that ballpark, and it almost matches like uncannily what the facts are here.

[20:15:24]

WEISSMANN: Yes. We`ll also add in that you have the obstruction charge, the 1519 charge, because not only did he not turn over everything, but the government, I think, quite plausibly contends based on all of the reporting that he partially turned over documents and deliberately retain the other ones. The portion of the New York Times story that you read that several people informed the New York Times that the President personally looked through his documents, meaning he decided what would be turned over and what would not be turned over is exactly why you have a 1519 obstruction charge.

I should also say, Chris, there`s some very simple charges here. It is simply theft of government property, which is 18 USC 641. That is a really simple crime. And that is clearly satisfied here. And the President, frankly, has not only not denied that, but his filings, whether it`s this letter or his more recent filing in Florida are frankly, in a confession to that crime of just taking government property.

HAYES: Final question I want to ask you is about executive privilege. I`ve been somewhat frustrated and maddened of this invocation throughout a lot of the proceedings here from Pat Cipollone, to the President in the letter that`s referenced here, there doesn`t seem to actually be a coherent theory of what it is. It appears willy-nilly from Trump or his lawyers as this kind of like magic cape to throw over things. I don`t even understand what the claim here is about the privilege they`re describing when the lawyer attempts to say, well, prophylactically we`re just claiming privilege over this. You can`t show it to the FBI.

WEISSMANN: Yes, so, you`re right to be confused because the claim doesn`t have any merit. So, executive privilege is a privilege where the President says, you know, I`m entitled to hear from my closest advisors and those communications are things that should not be made public. That is not applicable here for a whole host of reasons, one of which is that this is not a defense to the relief that Donald Trump is requesting.

Donald Trump says, executive privilege give the documents back to me. No, if it`s executive privilege, it means the documents are government documents that need to go to the National Archives. So, the relief would not be returning them to Donald Trump, it would be giving them to the National Archives.

HAYES: Right.

WEISSMANN: Second, it`s kind of precedence who has the privilege--

HAYES: Right, definitionally, definitionally, right? Like, if it`s -- if it`s executive privilege, it`s a privilege document, right? That it is work product. That, you know, it`s vital work. It`s the type of thing that belongs in the archives, not in the Mar-a-Lago basement.

WEISSMANN: Exactly. And the other is, you know, when I was in the Special Counsel, we dealt with getting documents from the Trump White House, and we were in the executive branch, we were at the Department of Justice, we reported to the attorney general who reported to the President. So, these documents were going from the White House to the Department of Justice. That`s within the executive branch.

HAYES: Right.

WEISSMANN: Executive privilege does not apply to documents going within the executive branch itself. It`s only going outside of it. So, that doesn`t work in this situation since the search was done by the executive branch.

HAYES: Well, thank you. And nothing I love more than someone telling me I`m right. Andrew Weissmann, thank you very much.

WEISSMANN: Thank you.

HAYES: All right, coming up, why a Trump-appointed judge is calling out Donald Trump`s attempt to slow down the investigation of classified documents. But first, it is primary night in America. Polls are closed in Florida and Oklahoma. We already got a bunch of votes in Florida where they count their votes very fast. New Yorkers have about 40 more minutes to get to their polling places. Steve Kornacki joins me with the latest updates right after this. Don`t go anywhere.

(COMMERCIAL BREAK)

[20:20:00]

HAYES: It is election night in three states tonight, New York, Florida, and Oklahoma. New Yorkers, you have a little more than half an hour to cast your ballots. Polls closed at 9:00 p.m. Eastern. It`s been very low turnout, so please go do that if you have time. There are four big house elections tonight in New York, plus a special election for congressional seat in the 19 District. A lot of people are watching. It`s going to be a bellwether for how people will be voting in the Midterms.

Polls in Florida and Oklahoma are already closed 8:00 p.m. Eastern and we`re starting to get some results. MSNBC National Political Correspondent Steve Kornacki is here at the big word to take us through the latest. Steve, what do we got?

STEVE KORNACKI, MSNBC NATIONAL POLITICAL CORRESPONDENT (on camera): Yes, Chris, we basically got all the results here. And you can see in the Democratic side, it`s a landslide. The polls were accurate in this one. Charlie Crist defeating Nikki Fried. Crist will be the Democratic nominee for governor of Florida, 92 percent reporting. You could see pretty much just a landslide.

A couple of counties here that Fried managed to carry but Crist is going to win this thing big. Crist will move on to the general election. He will face Ron DeSantis. This will be the third time that Charlie Crist has run for governor of Florida, once as a Republican. He got elected in 2006, served one term. He ended up running as the Democratic nominee for governor in 2014. He lost narrowly to Rick Scott that year. And now for the third time, he`ll run for governor again as a Democrat in 2022 against Ron DeSantis. So, that matchup is now set. Charlie Crist wins the Democratic primary.

[20:25:31]

A couple of interesting House races of note in Florida. Remember, the map was redrawn here. The congressional map in Florida was redrawn in a way that created a lot of opportunities for Republicans here. But two Republican incumbents we were keeping a close eye coming into tonight. This race proved very close or surprisingly close, I should say. But Dan Webster, incumbent Republican, we`ve projected he is going to survive his primary in the 11th District of Florida, but the very controversial Laura Loomer, she embraces the label Islamophobe, finishing here --finishing here just about six points behind Dan Webster.

This is a district that includes Sumter County, that`s famously where the villages are. What`s going to save Dan Webster and this is there`s a portion of Orange County, more Democratic. That`s where Orlando is that`s in this district. Webster did really well there. That may end up being what saves him. So, Webster is going to survive, but narrowly in this primary challenge.

Also, a lot of people were curious how this was going to turn out. Matt Gaetz, all the controversy around him, he did draw a challenger here. We didn`t see any polling. We weren`t sure what was going to happen. But Matt Gaetz, we`ve projected, is going to win. He`s going to win by a wide margin in the Republican primary in Florida`s first district.

So, a lot of the drama in Florida kind of over already. And now, as you say, we`re starting to shift to New York. And that question of when the polls closed there at the top of the hour, what`s going to happen in the 19th district. And this is Pat Ryan the Democrat, Mark Molinaro the Republican. The backdrop, it`s a district that voted for Joe Biden by two points in 2020.

If you roll the clock back to 2016, it was a Trump district, it was Trump, then it flipped over to Biden in 2020. And it`s -- this is exactly the kind of district, this fits the kind of profile that if Republicans are having a good year, if it`s the Midterm climate they`re hoping for, if it`s the midterm climate, everybody pretty much expected a month or two ago, then this is exactly the kind of race that Molinaro would win and probably win by a big margin.

But if Democrats, we`ve seen a tightening in the generic ballot, we`ve seen some signs and some other special elections around the country that maybe there`s some more Democratic interest and motivation in the wake of that Supreme Court ruling, if the Democratic case that hey, this Midterm is starting to turn climate-wise, if that`s accurate, then this race could reflect that night.

And if Pat Ryan were to win this race night, the Democrat, that would really buttress the case for Democrats that the political environment has changed significantly in the last two months and that we could be talking about a Midterm environment that is atypical.

HAYES: Let me -- can I just go back to -- I don`t know if we have time here but give me just 30 seconds. Go back to the Webster-Loomer. I mean, I think this is pretty shocking down in Florida. I just want to be clear. Like, this is an individual who was banned by Twitter because of the regularity with which her tweets violated their terms of service on bigotry. She calls herself an Islamophobe. And controversial I think is a polite way of describing her.

Webster we should note is a conservative. He was, if I`m not mistaken, the person that conservatives rallied around instead of Paul Ryan back during that speakership. And I`m like, Webster is not a squish, right? Webster is in the right part of the caucus. This is a pretty -- I have to say, this is a pretty surprising result to me that this was this close.

KORNACKI: Yes -- no -- I mean, you could see it where we`ve called up here the counties that make up this district. Here`s Sumter County here. This is where the villages are. You know, the gigantic senior citizen retirement community in the villages. Actually, Loomer carries Sumter County tonight. She ends up winning there.

You take a look at the rest of the district. Lake County here, Webster gets a narrow victory. And again, as I said here, this is Orange County. This is part of Orange County. At least Orlando itself is not in here but Orange County is where Orlando is. It`s more Democratic turf. That`s what`s going to save Webster in this thing. But again, yes, overall, this is -- Webster was sweating this thing when those results were coming in.

HAYES: Yes. All right, that -- I`m still processing that. Steve Kornacki, as always, thank you so much for breaking that all down. We will be checking back with you, I imagine, throughout the night. Thanks a lot.

KORNACKI: You got it.

HAYES: Still ahead, what the hell even is this? Lawyers are snickering at the Trump legal team`s amateur filing but could a Trump-appointed judge help the foreign president get the last laugh? That`s next.

(COMMERCIAL BREAK)

[20:30:00]

HAYES: All right, so Donald Trump has now filed a bladed legal response weeks after the search at Mar-a-Lago asking the court to appoint a special master to review the allegedly classified documents recovered from his property, again, to produce them for executive privilege which itself is not coherent.

Here`s the thing. The documents belongs to the National Archives, not Donald Trump. The ex-President likely waited too long as the FBI seized the evidence two weeks ago. But even setting the question of logic aside, the actual 27-page legal filing has been widely criticized as cartoonishly amateurish. Trump`s out-of-state lawyers were even told they had to refile the request to represent him because he did it wrong the first time. The judge even had to point them to a sample document instructing them how to file properly.

[20:35:27]

And much of Trump`s filing reads like one of his tweets as if it was dictated by him personally instead of written by a lawyer. It refers the ex-president is "the clear front runner in the 2024 Republican presidential primary, and in the 2024 general election." It contains a threat in writing from the ex-president sent to Attorney General Merrick Garland, "President Trump wants the Attorney General to know he has been hearing from people all over the country about the raid. If there was one word to describe their mood, it is angry. The heat is building up, the pressure is building up. Whatever I can do to take the heat down to bring the pressure down, just let us know."

Conservative law professor Orin Kerr summed it up best, "Lawyers are giggling at Trump`s motion and how poorly it was done." He`s right. The legal filing should probably be laughed out of court. It might not be. Right now, the case has been assigned to a very conservative Florida judge named Aileen Cannon, who was appointed by Trump himself, confirmed in the lame duck session.

And as many of you will know that there`s this trick that some sympathetic right-wing judges have pulled with Trump where they don`t approve his outlandish legal requests, but what they do is kind of collaborate with him on the procedural foot-dragging and delay tactics. They can just kind of kick the can long enough to give Trump cover which is of course his ultimate goal. Now, we don`t know if that`s what Judge Cannon will do. Although today, she sent Trump`s lawyer a list of let`s just say quite pointed questions, demanding more information about what exactly they are requesting.

Nancy Gertner is a former U.S. District Court Judge of Massachusetts and a senior lecturer at the Harvard Law School. And she joins me now. So, Nancy, you`re a district court judge. You would get filing from all kinds of lawyers. What -- what`s your --

NANCY GERTNER, FORMER U.S. DISTRICT COURT JUDGE: Right. And you rarely giggle.

HAYES: How would you --

GERTNER: You rarely giggle. That was not the usual response.

HAYES: Right. I mean, presumably professionals doing this. I mean, what was -- what is your top level characterization of this filing?

GERTNER: Well, I mean, the fact of it is already troubling. Here`s a nerdy point. When a lawyer file something, a note, there`s a sheet that says, you know, are the related cases, and they did not mention the case pending before Reinhart, Judge Reinhart as if it was not related. I mean, usually what happens here, so search warrant is an emergency. The emergency -- it goes to the -- to the magistrate judge that is on call. He`s an emergency judge. You don`t pick them. It`s the judge who simply is on call.

If you have a beef with a magistrate judge, which rarely happens around these kinds of issues, you go to the district judge who is on duty. What we don`t know is whether Judge Cannon is the -- is the duty judge at all. And in any event, you don`t go up until you`ve asked the same question of the judge on the lower level. So, from my understanding, he`s never asked Judge Reinhart for a special master. You didn`t -- that`s where you start. You can`t be appealing, something that you haven`t asked for.

Then you put aside the fact that -- I really am a legal nerd. I mean, I`ve checked sites in this pleading. I`ve said -- check the, you know, the law - - the legal cases that they`ve cited, and I would also give it a low grade. That apart from the fact that nowhere else in this document, by the way, do they refer to president -- to former President Trump as former President Trump, so it is a public relations document.

HAYES: Yes. The point about Reinhart I think it`s just worth sort of staying on for a second. I mean, there is a judge, there`s a federal district judge who has this case. In fact, he`s asked for briefing on some of the questions related to whether the affidavit should be released. He has received arguments on that.

So, one of the questions that this other judge, Judge Cannon has asked of the parties who filed this is like, why can`t -- shouldn`t this be in Judge Reinhart`s court? And it does seem like just a blatant attempt to just like, route around the judge you think is not your person and go try to find one who you think is like on your team.

GERTNER: Right. I mean, the key issue is that in a search -- a search warrant isn`t actually not a case yet. It`s described on the docket as the miscellaneous business docket. It doesn`t become a case until someone is indicted. In one sense, it is fully in the -- in the purview of the magistrate judge until he finishes with it. And even if it`s an emergency, the first round of the emergency should go to the magistrate judge.

Then there`s a question of the relationship of the magistrate judge to Judge Cannon. And you can`t pick the -- your favorite district court judge to go to. There are rules that does -- that determine that. What I don`t know is whether she is, you know, an emergency judge as well or whether he has bypassed the emergency judge as well. But you know -- I mean, if she`s not the emergency judge, if you haven`t finished with Judge Reinhart, then this is like an eviction case that you decided to file in the Hague, right? I`d like the judges in the Hague and that`s where I`m going to go. I mean, it really -- it just doesn`t make any sense at all. It doesn`t make any sense at all.

HAYES: That`s very -- that`s a very good line. What -- I guess the other question here is like, if it is -- I guess it is just a PR document. But it also seems that, you know, the quality of the lawyering is not particularly high, and he`s had trouble finding counsel, when you look at the other lawyers, right.

I mean, Michael Cohen pled guilty to, you know, federal crimes, did time in prison. Rudy Giuliani who replaced Michael Cohen is currently the target of a criminal inquiry in Georgia for the work he did on behalf of the President to the White House counsel Don McGahn and Pat Cipollone where, you know, had testified in inquiries into misdeeds by the President. You can understand why people wouldn`t want to represent him. But this seems like this is where you end up.

GERTNER: Well, the problem with lawyering here is that, as I said, what they`ve made -- it was just so contrived. What they`ve done is really so contrived. Let me give you an example. They cite to the U.S. v. Nixon, right, a good place to go. And they cite to the quote in U.S. v. Nixon, where it says that, you know, there`s an importance to executive privilege, the confidentiality, of presidential communications.

The next sentence says, classified information, diplomatic issues are, of course, different. Criminal prosecutions are of course different. That`s the next sentence. No lawyer worth his or her salt would ever cite one without the other. And, of course, that`s what this is about. This is not about the confidential confidentiality of presidential communications.

This is about the potential classified information. The current administration would like to know what classified information was in these boxes, was in that house, to which people had access or may have had access. That is a current -- you know, a terribly critical issue for the current administration. And nothing in U.S. v. Nixon says otherwise.

HAYES: I had to say, watching all the legal minds sort of go through this and pick it apart, it`s been like a -- like a real-life stress nightmare, like a worst-case scenario?

GERTNER: Right. Yes. I mean, I was going through --

HAYES: I`m not in my (INAUDIBLE).

GERTNER: I was going through it and saying minus. No, it`s not -- as I said, Judge Reinhart in particular and every other magistrate judge in the country has to feel, if this becomes the rule that -- you don`t like what the magistrate judge is doing, you don`t go back to him and ask him the very question, and then you pick the judge that you want to go to, then the whole system begins to crumble.

HAYES: All right, Nancy Gertner, as always, great to get your insight. Thank you very much.

GERTNER: Take care.

HAYES: Still to come, it`s worse than we thought. New reporting that -- remember this story of Trump lawyer got that sense of election data that they shared it with election deniers. One of the Washington Post reporters who broke that second follow-up story joins me ahead.

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DR. ANTHONY FAUCI, CHIEF MEDICAL ADVISER TO THE PRESIDENT: It`s never really a good time to leave, but you have to leave some time. I have been wanting to pursue another chapter in my career, as you mentioned a bit ago, because I`ve been wanting to do things outside of the government, particularly to do things be they lecture or write or get involved in situations where I can serve as hope and inspiration to encourage young people to go into public service, particularly in the arena of science, medicine, and public health.

(END VIDEO CLIP)

HAYES: Dr. Anthony Fauci, the nation`s top infectious disease doctor for the last 38 years has decided to step down from his role in December. The news is somewhat surreal given his nearly 40 years in public service, but also of course, because of his role in the Coronavirus pandemic. It`s been almost two and a half years since the Coronavirus was declared a pandemic.

And do you ever catch yourself in conversation sometimes talking about when we were in the pandemic and then correct yourself not knowing if you should use the present tense or the past tense? I do that a lot. And so, this week on my podcast, Why Is This Happening, we devoted a whole episode of the question of what does it mean for the pandemic to end? When and how does it end? Is it over now? It doesn`t feel like it. Are we still in the middle of it? Will it go on forever?

We have Boston University School of Public Health epidemiologist Dr. Ellie Murray to basically describe why weirdly, there`s not really a hard satisfying answer to some of those basic questions. Catch the full interview this week on Why Is This Happening out every Tuesday wherever you get your podcasts.

Meanwhile, two weeks after FBI agents seized highly classified documents from Donald Trump`s Beach Resort. There`s another story that keeps getting worse and worse for Trump World figures. Tonight, a big new development in the election system security breach and the reporter who broke the story joins me next.

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HAYES: Nearly two years have passed since the 2020 presidential election. We are still learning new information about how far lawyers in Trump world went to overthrow the election. New reporting from the Washington Post shows that sensitive election system files, these are parts of the internal data obtained by Trump lawyers were shared with a veritable Star Wars cantina of election deniers, conspiracy theorists, and right-wing commentators.

The files were placed on a server were "they were downloaded dozens of times." Among the downloaders were accounts associated with a Texas meteorologist who has appeared on Sean Hannity`s radio show, a podcaster who suggested political enemies should be executed, a former pro surfer who pushed disproven theories that 2020 election was manipulated, and a self- described former seduction and pickup coach who claims to have been a hacker.

Now, this comes just a week after the post initially reported about the forensic firm that was hired by Trump`s lawyers in late November 2020 to copy software and other data from county election systems in three battleground states. I`m not a lawyer, but I have to wonder how has no one been arrested for this? It just -- it really does seem flagrantly criminal. It`s worth noting that even with this special access to nonpublic voting data, Trump allies couldn`t make the case the election was rigged because there was clearly no case to make.

[20:55:43]

Amy Gardner is a Washington Post national political reporter one of the authors of that new reporting and she joins me now. All right, so Amy, I had you back on for the first story which is the first time through the civil suit filings we learned that this forensics firm had been hired by the Trump lawyers and they got nonpublic election data from how many places do we -- do we know?

AMY GARDNER, NATIONAL POLITICAL REPORTER, THE WASHINGTON POST: We know about -- we know about three, Clark County, Nevada, Coffey County, Georgia, and Antrim, Michigan.

HAYES: So -- and in all those cases, this wasn`t -- they weren`t this was not like, you know, sometimes like a voter file, right? It`s public data even though it can be hard to get. This was not that. This was they got access to the data that should not be in the hands of the public, was not public information.

GARDNER: That`s true. They copied images of the actual operating systems, you know, not, not files that show voter data, but actually files that show how the system operates. And so those who believe that this is evidence that the systems are now compromised because this is now out there say that, you know, this is -- this is a sort of a breadcrumb trail for bad actors to be able to try to breach a an election system during a live election.

I think it`s worth noting, though, that I think we need to be a little bit cautious about. They have not proved -- no one has proved that these breaches actually compromise the security of the systems. This is the Dominion Voting Systems, one of the main, you know, purveyors of voting equipment in the country right now. And, you know, both Dominion and the election officials in the states say emphatically that it would be virtually impossible to use this information to breach a system during a live election without detection.

And I think it`s really important for us to be cautious about how big the risk really is given that we`re in the middle of a live election right now with the Midterms coming up.

HAYES: Oh, I totally agree. And I want to be clear that what I`m saying here isn`t that they successfully hack the machines. It isn`t it. I`m saying, this was not an information they should have been shared with them, that they shouldn`t have had access to. And yet they found themselves in possession of it, right, through this forensics firm. And then they were -- they were sharing it. They -- what is --- what was the sharing -- what was the mechanism of transmittal for this data that was supposed to show, right, the smoking gun of their theories about how this election had been stolen or hacked?

GARDNER: Yes, totally. And I completely agree with your point that the potential criminality here is really the most are important point. Like, you know, this is a company that contracted with Trump allied lawyers, including notably Sidney Powell to do this work. And we already know that there are criminal investigations underway. The Georgia Bureau of Investigation and the Secretary of State`s office in Georgia are investigating the breach that happened in Coffee County.

And you can tell from the rhetoric from the quotes that we got from officials with Secretary of State`s Office that they would like nothing better, I think it`s safe to infer, than for someone to be charged with a crime and all of this as a deterrent for future action -- potential actions like this. So, what happened was, through a contract with Trump-allied lawyers, this company made the data that they copied from the systems available. They uploaded it. And then they disseminated the information on how to obtain and download that information to all manner of election conspiracists and other Star Wars cantina figures to use your phrase.

HAYES: Well, so here`s my question. This is a final question which I can`t quite figure out here. Not that it matters but just for my own sanity here. Was the idea that they had caught -- they had actually found something and they were showing like a high here`s the secret -- you know, this is where the ghost of Hugo Chavez and the Chinese Communist Party infiltrated into the code to change votes, or were they showing like, aha, look, these systems aren`t so secure, we got in and ergo our conspiracy theories are correct.

GARDNER: Well, if they had found actual evidence that votes had been flipped, do you think we would not have heard about that the day they got it? Of course, we would have.

HAYES: Right, yes. That`s a good point. Right, yes, right.

GARDNER: So, I feel like that your second question is the right one. Is this meant to just sort of stir up muddy water and confusion and make the right not sure about the security of the systems.

HAYES: Right. If you`re seeing these screenshots of Dominion -- you know, Dominion code, right, it has this kind of sum, it`s that quality of like, casting some kind of aspersion even if you haven`t established anything that kind of furthers what a lot of these folks are talking about.

Amy Gardner who`s been doing great reporting on this truly like bizarre story that has been on unfolding. Thank you very much.

GARDNER: Thank you, Chris.

HAYES: That`s ALL IN on this Tuesday night. "ALEX WAGNER TONIGHT" starts right now. Good evening, Alex.