his name is throughout it. is this the kind of document nauta's lawyers if they're not attached to donald trump looks ate him and says andrew, you've got to make a deal here? >> well, presumably that conversation had been had. so the -- you know, that's also the reason for donald trump issuing the first thing you get out of donald trump before he starts fund-raising is to praise walt nauta because he knows. he's been through this. this is something he's very familiar with, which is keep your potential enemies close and so he's been praising him. i would think at this point, yes, you would always continue to have that conversation, but there's no question that that is something that he's had already. >> but he's family, guys, that would be amazing. >> this new material documents that the doj says nauta has criminally lied for donald trump. he's gone down that road. that's one of the charges in the

transcript. whether he now faces more heat that changes his mind we've seen before, that's how far in he is, the person you see on your screen, not well-known but long loyal military aide and personal aide to donald trump in the post-presidency. i want to read some more from this. we have so much new material with regard to katy's point that donald trump has long avoided texts and emails, but he hasn't stopped everyone else from using them on his behalf. here you have january 13th, 2022, the doj reading from page 19 says nauta texted trump employee 2 about trump personally, quote, trackingboxes, he's tracking the boxes, more to follow today on whether he wants to go through more today or tomorrow. nauta writes to another anonymous employee, trump employee 2 in the indictment, one thing he asked was for new covers for the boxes. can we get new box covers before giving them out on monday, and the employee replies, yes, i will get that.

this is contemporaneous, this is real. the doj finds this credible that they were communicating and they were scheming because then it notes nauta gathered 15 boxes from trump's residence, loaded them in nauta's car and took them for a commercial truck for driver delivery to nar ra. nauta made false statements, falsely stating he wasn't aware of trump's boxes being brought to the residence, falsely stating he didn't know how the boxes that he and the employee brought from the residence to the commercial truck had gotten to the residence, and andrew, i'm going to go to you on this. when asked whether he knew where trump's boxes had been stored before they were in the residence and whether they'd been in a secure location as required under law, nauta falsely responded, i wish i could tell you. i don't know. i honestly just don't know, end

quote. what is the doj doing with that? >> so to me this is such a strong obstruction series of charges. one thing that's very clever is look at the time period that's charged. it's from the date of the grand jury subpoena that was served until the date of the search. in other words, they're not dealing with the archives and what's happened with all of that. that's going to be useful. this is in terms of the obstruction. it's from the moment you get a grand jury subpoena that says turn over all documents that bear classification marks. >> had that never have been done -- >> this is what distinguishes him from any charge of biden's or pence. >> as far as we know there's no sign whatsoever that pence or biden obstructed justice, and this is chapter inverse in real detail, and it's going to be from his lawyers.

>> a big part of the detail seeing to be there's stuff everywhere, a ballroom, a bathroom, a shower. and then going back to nauta on page 13, on december 7th, he found several of trump's boxes fallen and their contents spilled on the floor of the storage room. so then he takes photos of them and sends them to another trump employee including visible markings of classified information, frank figliuzzi, it's picking up on what you were talking about which is the idea of national security, you have classified documents, the boxes are spilled all over the place. they have a photo of it, of everything spilled. >> is that the photo? that looks like the photo they put out early on in this case. >> it could be. it says one of the photos nauta texts to trump employee 2 is depicted below with the visible classified information. >> which the trump people claim was a staged photo.

>> is that the photo we saw in color during the fall? >> we have to check that out. >> we'll try to connect it. >> it came from what they were doing, not what the searchers were doing. >> yeah, so frank, as you look at this, the national security implications, there just seem to be these papers marked classified everywhere. >> yeah, and they go out of their way here in the indictment to talk about the numbers of people that traipse through mar-a-lago, there are movie premiers and weddings, et cetera. to set the stage, although we now have boxes being alleged to have been on a stage, that way too many people could have had access to this. there's something else that jumps out at me here, which is a direct reference to a trump family member unnamed on page 23. it's clear that they have all kinds of texts and somebody's cooperating likely to recover these texts because it's increasingly difficult to restore texts through subpoena

and search warrant here providers, so here's an unnamed trump family member who has apparently guilty knowledge and is texting directly with nauta saying, hey, i understand you're moving boxes. potus, move them into potus room, and i understand you may be putting them on the plane. the previous guest referred to a trip to bedminster. we have a trump family member acknowledging, i know you're moving the boxes. and now you want to put them on a plane to bedminster. i don't know if we'll have room. there's an unnamed family member who seems to have knowledge. >> it's an unknown family member who's a woman, that does narrow it down. i want to add a couple of things. one of them is that at the end there's basically a sheet that the j brad has filled out talking about what they'll need, had is a court division for west palm beach. they estimate 21 to 60 days for

the trial. they also list maximum terms of imprisonment for the counts, counts 1 to 31 max term of imprisonment, ten years. mandatory minimum term of imprisonment is three years. maximum supervised release is three years. fine 250,000. there's another one where it says 20 years, this is for count 32. this is the conspiracy to obstruct justice. maximum term imprisonment 20 years. the maximum supervised release is three years. for count 33 withholding a document or record, maximum term 20 years. count 34, maximum term 20 years. this is corruptly concealing a document. count 35, concealing a document in a federal investigation, 20 years, count 36 max term five years. this is a scheme to conceal. 37 false statements and representations. five years, andrew weissmann, that is a sledge hammer.

what's the likelihood that he'd be facing that sort of jail time? >> so you have to list what the statutory maximum is, but that's not what governs what a sentence would be, and what you look to for a sentence is you look to prior doj cases. you look for what judges have done. but just take last week, somebody who had pled guilty, didn't go to trial, got an advantage by pleading was sentenced to three years in jail. but andrea, one thing you might be interested in is 21 of the counts under willful retention of national defense information, 21 of those charges of the 31 are listed as involving top secret information. one of them is described in count 4 as white house intelligence briefing related to foreign countries including military activities and planning of foreign countries. i mean, they clearly are listing incredibly sensitive

information. you can be sure before they brought this and decided what to include that this is sort of the tip of the iceberg. >> andrew to your very point, ken dilanian, you've got some information about that past "washington post" reporting about nuclear secrets. >> reporter: yeah, that's right. just to build on what andrew was saying, right there in paragraph 3, remember that "the washington post" had reported that some of the documents involved nuclear programs, and i remember donald trump and his allies denying that. it says right here that the classified documents trump stored in his boxes included information regarding defense and weapons capabilities of both the united states and foreign countries, united states' nuclear programs and potential vulnerabilities of the u.s. and its allies in military attack. it goes on to say not only was the national defense of the united states compromised or put at risk but the safety of the united states military, human sources and the continued viability of sensitive intelligence collection methods.

these are the crown jewels. i've been covering the intelligence community for more than a decade. i've seen a lot of these cases of unauthorized disclosure of classified information. this is one of the most detailed and devastating i've ever seen, coupling, you know, an unauthorized disclosure case with an obstruction case and a cover-up case. it's absolutely remarkable, and they also had to juggle, right with those very agencies what exactly they were going to say in this indictment. if there's been a very delicate dance going on behind the scenes. you don't see too many explicit mentions of particular documents in here. i throw it back to our legal experts to ask how is that going to play out at the trial? will the jury get to see some of these documents? will donald trump try to introduce documents that will threaten the national security of the united states? >> let me extend your question because the other part of that paragraph 3 is the unauthorized disclosure of these classified documents could put at risk the national security of the united states, foreign relations, the safety of the u.s. military and human sources and the continued viability of sensitive

intelligence collection methods, andrew. >> and in count 3, one of the things that's noted is it includes handwritten annotation in black marker. >> who uses a black marker? >> yes, exactly. so this is what we're all sitting hear today, i hate to say this but we're all going to become experts in cipa, which is the classified information protection act. >> we had a long conversation about it yesterday on my show. >> exactly. this is exactly what it deals with is how to get this information because you do have to have public information that goes to a jury and the public has to see it, defendant has a right to see it and defense counsel, but it's a way of dealing with that without revealing things that are highly sensitive. >> two points on that. on page 27 on this very point, you have the most direct table, and although viewers won't be able to read the words, you basically have a two-line table

here, trump's office which was the object of the conspiracy. you can think of that as where they were hiding the drugs. >> the mar-a-lago office. >> the trump mar-a-lago office. and oops 27 documents which are broken out across top secret, secret and confidential. the storage room, 75 documents broken out over ten top secret, 36 secret, 28 confidential. in this, andrew, what you have is also the breakdown of what looks to me like donald trump's worst nightmare in that they're inside, they're inside the texts, inside the legal team. he was doing things that at this late stage in his long high temperature -- long running battles with investigates he thought he was getting away with it and he wasn't. counts 33 and 34, they talk about basically what the purpose was here, and they talk about trump attorney 1, now andrew you said you're pretty sure from the narrative that that's corcoran

who we know was making these tapes, right? of course i just want to point out according to the doj they're not naming him by name, but they say, quote, trump attempted to persuade trump attorney 1 to hide documents from a federal grand jury. then the conspiracy, trump and nauta mislead trump attorney 1 by moving boxes that contained the classification markings so that trump attorney 1 wouldn't find the documents and produce them to a federal grand jury. i'd love, andrew for you to walk us through that. that brings us back to here. again, that's the allegation and they were hiding, they were saying the stuff, the drugs, the contraband in this room, we're going to hide it first from our own lawyers and then from the feds. that's pretty bad. >> so obstruction is kind of a big thing obviously here. and you just really have gone through it well. i want to get back to cipa at risk of being confusing with all the legal jargon. if you can't show a jury the

content, the actual content of these documents because they're nuclear secrets, if you can't show them the degree to which they are sensitive, they are serious, they put us at risk, you are asking a jury to trust prosecutors. >> so the law does not allow that. it's not like the jury's just told just trust them. but here's an argument that would come up in connection with obstruction. the subpoena called for documents that bore classification markings. it doesn't matter what's in it, the substance of it. of the classification markings are there, you're going to be like that's all that the jury needs to know because that goes to -- >> but andrew, to her point, to katy's point because we deal with these terms all the time, i cover intelligence, no foreign -- on this top secret. that means you can't share it with your closest allies. i mean, that is extraordinary.

but at the same point, andrew, if you're telling a jury, a jury that may not -- >> understand. >> understand, yeah, yeah. >> and a jury that might be more sympathetic to donald trump than a jury in d.c. >> or at the very least feel the weight of a former president of the united states being on trial. >> do they need to feel the breadth of the breach in order to really fully understand what they're doing to a former president, what they're considering for a former president would meet the threshold. i know we say everybody's equal under the law, i think naturally people when they're sitting there will think, wow this is a former president. >> they're sort of great questions and that is a tension the prosecution will have. they can obviously decide there's information that can be declassified. this is all a question of what was the state at the time that this crime happened, alleged crime happened. so they could obviously decide just to declassify certain information and make a triage. that would solve some of this problem.

there may be other things, though, where they're like we just can't declassify this. i would assume by the way, a lot of that discussion has happened already, in order for this to be listed, there are conversations that happened. >> there have been some espionage cases that never get to court because they decide it's too dangerous to reveal the evidence. >> absolutely. the second thing they can do is make the kind of arguments i'm making, which is that the content isn't relevant to obstruction because the obstruction is just sort of what's on the face of it. it is true that that takes some of the guts, the sort of -- what you're saying is the emotional impact of sort of what happened here, but if you're trying to decide, you know, national security versus a conviction, you're going to be weighing different things. >> so that's a closing argument? >> that weighing, i am confident what we're seeing here a lot of that weighing has happened already. having been in these meetings, there are discussions about which document can we use, and you will have the cia, the nsa, the fbi saying you cannot use that document and others saying,

you know what? this document, yes, if necessary we're willing to declassify it for the purposes of this. the fact that as ari pointed out there were more documents that were found than are actually charged is an example of that kind of triage that's going on where they're trying to basically say we have a responsibility to the national security but we also want to be able to present a case to the jury. >> let's go to robert ray who was with us a little while ago, a former member of donald trump's legal team during his first impeachment. great to have you back. i know you were saving a lot of your judgment until you read the evidence. you now have had unfettered access to the indictment without a camera in your face. what do you think? >> yeah, i've read it, obviously very quickly. i haven't studied it. i think that you are raising the right questions about, you know, first of all, the obstruction part of this thing is important because it's basically the

subpoena compliance version of musical chairs and moving documents around in order to prevent what is alleged here, to prevent the lawyers from actually knowing what documents have been retained at mar-a-lago, and then as far as the impact of this case, i mean, i raised earlier with you and with others the question about whether or not any harm came to the united states, and that's going to raise the very difficult question that andrew just dissected about what evidence is actually going to be presented in court, what things are going to be declassified in order, i think, to get to the heart of that question. and that's something actually i cannot tell yet from the indictment. >> i want to read a little bit more, this is paragraph 27, it's on page 11, and this is also employees talking amongst each other and i'll read you the buildup. on april 5th, 2021, an employee of the office of donald trump

texted another employee of that office, employees number 2 to ask whether trump's boxes could be moved out of the business center to make room for staff to use it as an office. trump employee 2 replied, whoa, okay, so potus specifically asked walt for those boxes to be in the business center because they are his -- and they put this in quotes papers, trump employee 1 and trump employee 2 exchanged the following text messages. trump employee 2, we can definitely make it work if we move his papers into the lake room question mark. trump employee 1, there is still a little room in the shower where his other stuff is. is it only his papers he cares about? there's some other stuff in there that are not papers. could that go to storage, or does he want everything in there on property? trump employee number 2 responds, yes, anything that's not the beautiful mind paper boxes, not sure what that is, can definitely go to storage. want to take a look at the space and start moving tomorrow

morning. so robert, this -- what this has and what we've been discussing is realtime evidence of donald trump's directives, either in audio recordings or in realtime conversations that employees were having about donald trump asking them to do x, y, or z. >> and again, that will, i don't know -- await what the trial evidence looks like to see whether or not the government is able to prove beyond a reasonable doubt that those objections and instructions and the information he was receiving is something you can assign intentionality to. again, i've read it. i see what is alleged. but ultimately, it's going to be about testimony that would be presented at a trial when that trial -- when that trial happens. >> if you were in the trial, what would you be saying? >> there's all sorts of reasons why things and documents would be moved around, not necessarily all of which are reflective of criminal intent. so you know, again, it depends

on what the testimony is. it's nice to read it in an indictment and understand that this is the prosecution's document. okay? this is not what the witnesses are actually going to testify to at trial, and those witnesses will be subject to, as any witness would be at a criminal trial, subject to cross examination. those are all significant things that remain to be seem. an indictment is an accusation. this is what we have right now. >> the very next paragraph says after those text messages were exchanged between employee number 1 and employee number 2 in april of 2021, some of trump's boxes were moved from the business center to a bathroom and the shower in the mar-a-lago club's lake room as depicted in the photograph below. so that's a photograph. and then in may 2021, the next month, trump directed that a storage room on the ground floor of the mar-a-lago club, be cleaned out so it could be used to store his boxes. the hallway could be reached from multiple outside entrances including one accessible from

the mar-a-lago club pool patio through a doorway that was often kept open. the storage room was near the liquor supply closet, the linen room, the lock shop and various other rooms. so that ari melber indicates accessibility to top secret no foreign use documents by the general public as represented by the high paying club members at mar-a-lago. and the employees. >> and multiple points where it is both unlawful retention, unlawful disclosure, and awareness in realtime as a citizen, as the former president, another one that we haven't read out on ariet that backs up that same problem for the defendant here, for donald trump, andrea, is where we see trump showed a representative a, quote, classified map of a country and then told this citizen he should not be showing the map to him. don't get too close. the representative did not have a security clearance or any need to know classified information about what is described here as a military operation.

and so i think the theme we see over and over, this is 49 pages. this is a lot of counts. this is a lot of detail, but most importantly they have insiders, what trump used to call a rat or a mole, what prosecutors call witnesses and participants, and a lot of this hanging on a lawyer who was trump's lawyer. that's the real question, what's your best defense to a former trump lawyer saying, yeah, they tried to get me involved in the crime? >> let me pose that question, i want to bring in former prosecutor charles coleman into our conversation. we've been reading through this indictment, you as well have. i also want to bring up another recollection of something i covered, which was in the opening weeks of his presidency or months of his presidency when there was a nuclear alert involving north korea, he was at mar-a-lago. he then convened a national security meeting, a meeting of the national security meeting on the patio with documents showing what they had just received from the national security council about this missile that had been

fired and the response that was being discussed while patrons were also dining at adjacent tables. >> you know, andrea, as we look through this indictment in great detail, it becomes even more apparent how unusual everything we're dealing with is. donald trump is not someone who earned his security clearance in the same way that most federal employees earn their security clearance. he got his security clearance essentially because he's the president or the former president. other people who have to go through the security clearances necessary to get access to this type of information have a deeper appreciation for it. his entire administration was littered with folks who had these sorts of issues. jared kushner at one point wasn't able to have access to certain documents because he himself could not pass a security clearance. where i'm going with this is this is a pattern we saw throughout his entire administration of being cavalier with our nation's most important

and precious secrets. as we go through this indictment, it shows you just how deep and problematic this was to a criminal level, at a level of criminal liability. not only was he cavalier with our secrets, he was willing to engage other people with respect to access that they should not have had, with respect to the same documents in and of itself. so this is truly mind blowing, it's an indictment of incredible detail. i'm still going through it, but as i'm going through it i'm thinking about the convergence of so many different and unique elements that we have not seen all in one place. >> so can i interrupt you for a second because we have color photos so instead of having to hold up these grainy black and white things, we talked about about, charles, there being lots of boxes on the stage, and there you see those boxes, and if you go through the document, you know, they talk about we don't know if they're these ones, but documents concerning nuclear weaponry, time line and details

of a foreign attack, military capabiliies of foreign countries, regional military activities of foreign countries, and it goes on and on. and there you see just boxes stored. and again, in many cases at least according to this indictment in places where unknown numbers of people had access to them. >> that was the white and gold ballroom. that's the stage of the white and gold ballroom, and they say for how long those were out there while there were other events being staged in that very room, charles. just look at that and the storage room as well as chris was just pointing out. >> it's unbelievable and shocking in a number of respects both to you, andrea, and chris. if you think about it, i've said for a number of times that the actual content of the documents did not matter when you were simply talking about, number one, obstruction, and number two, his retention of items that he should not have had. what was in those documents, in his possession, those two things

didn't necessarily need to be at this level in order for jack smith to move forward with the prosecution. when you look at the seven counts and what's actually in the indictment, those are what they are because of what the contents are and because of what jack smith's office believes he intended to do with these things. that's why you have the additional counts on this indictment. it's not just a question of him attempting to obstruct a federal investigation in terms of obtaining these documents and getting them back. it's the actual content, and then of course as we are seeing over and over again with these now very color, very detailed pictures where they were housed, who had access to them and the fact that he was entirely cavalier with our nation's most important secrets. >> and frank figliuzzi from a national security standpoint, what do you see when you see these boxes and how they were stored. >> it's what's not in these

documents that we need to think of. historically, foreign intelligence services have always attempted to penetrate a second home or summer residence or winter residence of a president, and this would be no exception. mar-a-lago was a huge target, a huge bull's-eye for foreign intel services, and there have been some public reports of course of chinese nationals trying to penetrate getting in, people associated with russia and other eastern block countries. i'm here to tell you it was a giant and porous target. and i'm also here to tell you that the secret service was not responsible for some of the areas cited in this indictment in terms of protecting. the secret service doesn't protect boxes, and nor do they cover the domain, the area in which the protectee is not living and working in. they just protect him. so the likelihood that a foreign service had access or attempted to get access to these places

and these papers is quite high. >> and we now -- and almost simultaneously andrew and i were honing in on the same part of this indictment. it's on page 21. trump attorney 1 and trump attorney 2 tell donald trump that they need to search those documents, that they need to be responsive to the subpoena. so they make the following statements memorialized by trump attorney 1. i don't want anybody looking. i don't want anybody looking through my boxes. i really don't. i don't want you looking through my boxes. >> and that's supposed to be -- that is a recording of what they say donald trump said in response to how should they deal with the subpoena, calling for documents and they record i don't want anyone looking for it. that's what trump says. >> then he asks, what happens if we just don't respond at all or don't play ball with them, wouldn't it be better if we just told them we don't have anything here. isn't it better if there are no documents? >> that is devastating, and you

are going to have two attorneys saying that. >> can the defense say it's hearsay? >> no. that is what's called an admission. that is definitely -- that is a witness who's going to say i heard donald trump say that. that is not hearsay. that is classic an admission. that's coming into evidence, and there's going to be, you know, contemporaneous notes of this. this is really strong. i find the next paragraph fascinating because donald trump tells the story that's clearly a reference to hillary clinton and the 30,000 emails and says, essentially this is -- i don't understand why you're not getting rid of this for me and says, you know, i'm looking at the attorney for hillary clinton and that attorney did a really good job because he got rid of those emails and said they were personal, and she never got into trouble. so why can't you do the same for me? that is the import of basically saying to the attorney can't you do this for me? >> and to take a step back, chris is drawing our attention

to this seemingly damning memorialized material, not from a trump foe, not from a random, uninformed person, but for a trump loyalist and retained attorney at the time. that's why it's so damning, we only learn that mr. corcoran was making these tapes, these voice reports last weekend in the times report. we only learned about this florida grand jury piece within a recent period. i'm going to go out on a limb here, it's breaking coverage, so i'm thinking as i go, i'm hard pressed to think of any of the many cases involving donald trump, civil or criminal now with the two indictments that have inside damning witnesses like this. you were famously involved in the mueller probe, you certainly had very interesting material. but this, this is recent, this is hot off the presses as we would say that someone who recently worked for donald trump who was in the room where it happened is part of what is now

a charge conspiracy, where if they get him on the stand they would expect trump attorney -- the trump attorney here, trump attorney 1 to say i memorialized it because i worried it was criminal. that's why i started making tapes, and yes, he was asking us to commit crimes. these are now charged crimes today. >> absolutely. this is why it was such a big deal that they were able to pierce the attorney/client privilege. >> so we have some more photos. we've got a couple more, we're loading them into the television right now, but i to have one of my phone, i'm not sure if you guys can zoom in enough to see it. it is a photo of spilled documents in the storage room, and the description of the photo i'll give you here, this is courtesy of mike cozy nar, on december 7th, 2021, nauta found several of trump's boxes fallen and their contents spilled onto the floor of the storage room, including a document marked secret, 14 to usa, fev, which i'm sure andrea can translate.

it denoted that the information in the document was releasable only to the five eyes intelligence alliance consisting of australia, canada, new zealand, the united kingdom and the united states. nauta texted trump employee number 2, i opened the door and found this. nauta also attached two photographs he took of the spill, here we have them up on the screen now. trump employee number 2 replied, oh, no, oh, no, and i'm sorry potus had my phone. one of the photographs which is interesting, we can get into. that, one of the photos is depicted below with the visible classified information redacted. trump's unlawful retention of this document is charged in count 8 of the indictment. description of photo number 6, boxes stacked against the wall. we'll show this to you as well. here it is, on november 12th, 2021, trump employee 2 provided trump a photograph of his boxes in the storage room by taping it to one of the boxes that trump

employee 2 had placed in trump's residence. trump employee 2 provided trump the photograph so that trump 18 could see how many boxes were stored in the storage room. the photograph shown depicted a wall of the storage room, against which dozens of trump's boxes were stacked. that's that photo as well. if we go to count 8 of the indictment -- >> that's just a time line, and on january 17th it says that -- it's a year, right, after trump leaves office, and by then the national archives was begging repeatedly saying we need these documents. he gave them 15 documents containing 19 -- 15 boxes containing 197 documents. on june 3rd, trump's attorneys turned over 38 more documents. then in august 8th, more than half a year later, pursuant to a court authorized search warrant, the fbi recovered from trump's

office and his storage room at the mar-a-lago club 102 more documents with classification markings. so are from the year after he left office when they turned over 15 boxes and 197 documents, they subsequently found on june 3rd, 38 more and on august 8th under court authorized search warrant, 102 more. >> if we go back to the spilled photo and we talk about what was redacted in the classified document there, the one who was supposed to only be seen by five eyes, our closest allies. you can see in a photo of trump in a gaggle, there's one black line across the document. that presumably is the document that fell out of that box that is described in the indictment and included here. i do think that -- i want to go back to robert ray because robert, you're talking about how this is the prosecution's -- it's not the wish list, but it is the prosecution's argument here. it is their best argument for

why they are charging donald trump, and again, multiple counts. 37 counts alone for donald trump. robert, as you're going through this, from your reading as a lawyer, as a former federal prosecutor, do you not read this as potentially very bad for donald trump, or do you see this dispassionately? >> i don't really know how to answer that. it's a prosecution. it's serious. if he's convicted -- >> and with some prosecutions different. >> if he's convicted, he can go to jail. okay? i have a security clearance. it's secret. it's not top secret. that's not a reflection on me. it's a reflection on the documents that i had to recently review in connection with is criminal case. i had to go in and out of a scif, a security compartmented information facility. it tends to be like a little room in a courthouse.

there are a lot of boxes of documents. there was a process in place with regard to the return of documents to the national archives, the department of justice after issuing a subpoena, then preempted that ongoing process by issuing a search warrant. there are things the government is going to have to prove here, which includes that they were intentionally withheld, and i think where the rubber meets the road in terms of the significance of the prosecution, again, is whether or not any harm came to the united states as the result of the conduct here. we can spend hours trying to figure out, you know, sort of the musical chair approach, and i understand what the lawyers are saying, what the lawyers are saying is significant. no one likes to be used, okay, and certainly no one likes if you're a criminal defense attorney, no one likes to be lied to, and you don't like it when games are being played, but the conversations that were had that you just referenced were not unusual. clients come to you all the time. i have a subpoena. do i have to turn this over.

what happens if i don't turn it over? i mean, i don't -- i think it's a question of line drawn here. actually raising those questions is not obstruction of justice. withholding the documents intentionally knowing that they are called for by the subpoena is a problem, and that's where the rubber meets the road, and that will be the subject of a trial here. to answer your question, do i think that there's a problem? yes, i think that there's a problem. is it a criminal problem? that's for a jury to decide. that's what this process is about. >> you were saying that they have to prove that the national security was put at risk. to they have to prove that or do they have to prove that it was potentially put at risk? >> they have to prove the elements of the crime, of the crimes that are charged in the indictment. they don't have to prove whether the united states' interests were harmed. i get that. you're asking the question of what's the significance of this case, and i think, you know, to most americans, most fair-minded americans, they are concerned

about this, and they would be obviously much more concerned about things as we've discussed previously. if it is involves harm and harm came to the united states. you know, i don't want to minimize what's alleged here, but if the sense is that, you know, donald trump wasn't cooperative and didn't turn back the documents that he was obligated to turn over to the national archives, i think a lot of americans will conclude are from that, okay, that's interesting, you know, but that's not -- but that's not all that significant. again, i don't want to minimize the charges. they're federal charges. they're serious, and a jury is going to decide the significance of this. i do think that the government's prosecution -- let's put it this way, the government's prosecution is aided to the extent that it can show that the interest of the united states, harm came to the united states as a result of the conduct. i don't know that. i can't tell that yet from what is alleged in the indictment. that's what trials are for. we'll find out them.

>> and i just want to point out something that we had mentioned, that andrew had mentioned that clearly attorney number 1 is evan corcoran, attorney number 3 is clearly trump lawyer christina bobb, who did sign that affidavit. trump employee 2 is likely the maintenance worker, carlos dealivara and the trump family member, when they referred to ma'am and the plane to bedminster, melania trump. just one other point for the table. for those of us who cover politics as well as the legal ramifications, we have our experts. we have seen what the polling was after the indictment of donald trump in the albert bragg case. this is a real test of what the reaction is going to be politically to this incredibly detailed and legally our experts

are saying devastating, ken dilanian, frank figliuzzi and i, we have covered national security for years say devastating. devastating facts. >> it's going to be a test of the republican party because the numbers with his base have not moved. >> let me just make a point here that i just wanted to wrap up. this is a test of people on the armed services and intelligence committees in both houses because the support that he has had on capitol hill from the republicans writ large, i want to hear lindsey graham. i want to hear what the others and what the speaker says, he knows intelligence. he's been -- he's shown recently he can be an institutionalist on the debt ceiling debate. i want to see how everyone reacts. is it going to be knee jerk that this is the big bad fbi and department of justice inaccurately, is it going to be the same knee jerk reaction, or are we going to have a real national conversation about this? >> i think getting them on the record about that is going to be

very interesting. lindsey graham recently was upset about the debt deal. he doesn't feel comfortable with the money given to defense. >> he drew a line on vladimir putin with donald trump. >> he's drawn a line on vladimir putin, yes. i think one of the things that i -- i've been talking about this for a little while now, and i think it's worth mentioning again, which is that this case is not going to be tried in d.c. it's going to be tried in florida, and maybe that's the best thing for doj, for the country to say, listen, we're trying this case in a place that is friendly to donald trump, a place that he lives in a red state where the jury pool is more likely to be in favor of donald trump. maybe even be a voter of donald trump, and if we can try this case and win it in front of them, this should take the wind out of donald trump's argument that it's just a political prosecution done by people who hate him in blue states. >> will this be delayed so long it doesn't happen before the election. >> that's another question. >> something that's similar to when we saw the january 6th committee and one of the points

everyone made is that they made the case through republican witnesses. one of the things that's striking here to your point about who the sort of the anonymous people are, attorneys 1, 2, and 3 are attorneys for donald trump. employees 1 and 2 and their contemporaneous text messages to each other are the evidence. in other words, this is not made up by the fbi. these are contemporaneous trump employees and attorneys where the information's coming from them. the photographs are coming not from the fbi during a search where donald trump says, oh, these are staged. these are photos from employees 1 and 2 taking them on their phones. you have employees 1 and 2 saying donald trump is reviewing personally the boxes so the strength of the evidence coming from insiders to ari's point, not from fbi agents doing interviews. this is from people who were

contemporaneously saying things that were incredibly damning. >> including his lawyers. >> he's facing 37 counts but the question we all had was what were those counts going to be. he has been charged with willful retention of national defense information. conspiracy to obstruct justice, withholding a document or record. corruptly concealing a document in a federal investigation. a scheme to conceal. false statements and representations. nauta has been charged with conspiracy to obstruct justice, withholding a document or record, corruptly concealing a document in a federal investigation, scheme to conceal, false statements and representations. this is not a brief, a small, a tightly focused, if you will, one or two instances. this is what you would have expected given the stakes, given the amount of time that was taken with this incredibly

well-detailed with photos, with instances with pages and pages of examples of specific documents. that's what's in this indictment. >> 31 counts for the espionage act alone. 31 counts for the espionage act alone. >> i think we've passed the rubicon as a country. we now have to deal with this. if you're someone who hates donald trump and says that it's not going to be a fair outcome unless he's convicted, you're wrong because he is presumed innocent, and we have to go through the trial process. if you're someone who says -- and mr. ray referred broadly to this -- that he can't get a fair trial, then you don't believe in america because he can. >> barbara mcquade is with us as well. let's talk about why and how they picked which documents, which photographs they were going to put in this indictment? >> yeah, i always sort of think about the conference room where they're having these conversations about how to structure the charges and what to put in the document, and you will see that the 31 documents

that are the basis for those espionage act charges detail what those documents are, and they sound incredibly serious. things like the foreign information about intelligence briefings of foreign countries, military capabilities of foreign countries. nuclear capabilities of foreign countries. all of that is incredibly important and you can imagine that if you are a foreign country that share information with the united states, you might be a little less willing to do that going forward knowing that donald trump could be president again and is so incredibly reckless with this information. but i imagine when prosecutors are sitting there, they're thinking about, one, we want to make sure we are sharing with a jury the full scope and seriousness of the kinds of documents that donald trump was retaining outside of a scif and proper handling. at the same time, if there is something that is so explosive that it can just never see the light of day, then i think they would be reluctant to include that. it may be as bad as this list of 31 looks, it may be that there

were certain documents that the intelligence community told prosecutors no matter what happens you can't use these certain documents in the indictment. there are 105 total documents they could have chosen from, they chose these 31 and left more than 70 on the table that they did not include for various reasons. >> count number 7 of a document related or dated on october 21st, 2018, concerning communications with a leader of a foreign country. on that same day it was reported that donald trump announced that he is pulling out of a landmark intermediate range nuclear deal, so i wonder if that ends up being vladimir putin. >> and let me just also point out that there's a new trump social post attacking jack smith with a picture of jack smith, and he says this is the man who caused the lowest catastrophe with the irs. he goes after it, there are a lot of unsubstantiated

allegations here. i'm not going to read this, but he refers to him as a trump hater. he goes after jack smith's wife, calls him a deranged psycho and a picture of jack smith. so the attacks have just -- have just begun, andrew weissmann. >> well -- >> if you were his defense lawyer, what would you say? >> well, you of course want him to stop, i mean, this is exactly what happened in manhattan where there was the infamous picture of him with a bat and alvin bragg, attacks on the judge and their families. >> and we're showing you right now the rumor jack smith is going to be speaking. we want to reemphasize, it is not the department of justice. he does not have, you know, an official relationship with them on this case. >> can we ask robert ray that question, because -- >> let andrew finish the point that i just interrupted. >> sorry. >> look, attack is something that jack smith knows very well

by taking this position that that's going to come, and it's really done -- it's not going to in any way deter anybody who is serving on the special counsel -- >> no, but millions and millions of people are reading this. >> absolutely. >> jack smith came from the hague for this assignment. he's been pursuing war crime criminals. >> absolutely. this is shocking behavior once again. we've had two judges, a state judge and a federal judge who have actually had to take steps because the former president of the united states is engaging in conduct that could threaten the lives of judges, jurors, witnesses, and prosecutors and agents. i mean, it's completely beyond the pale. there are ramifications in terms of now he is going to be overseen by not just a state judge but by a federal judge. when this happened with roger stone, the judge there took swift steps, if you remember

roger stone posted a picture of the judge with literal cross hairs, and steps can be taken. but this is -- this is really what happens when you have somebody who thinks that the rule of law and rules in general don't apply to him, and is lashing out. >> let's ask that statement of robert. what do you do in that scenario? >> i'm sorry, somebody was speaking in my ear. >> the question of what do you do, i want to hear what you have to say otherwise, but i do want to hear an answer to what do you do when your client -- we talked about this before, personally goes after the prosecutor in ugly terms. >> the question is whether your client is a current presidential candidate for office in a political environment in which a prosecution is being brought by the department of justice of your political opponent and, you know, i had to laugh when andrea mitchell said this is a prosecution separate from the justice department, and i'm looking at a news conference

that is going to take place in the next few minutes in which at the podium is the seal of the united states department of justice. so you know, that rings hollow. he's a special counsel. this prosecution was authorized by merrick garland. they can try to hide behind the fact that it's the special counsel. special counsel made the prosecutorial decision, wu ultimately this is a prosecution that is authorized by the attorney general of the united states who is joe biden's appointee in an election cycle. okay? and then finally katy -- >> authorized, robert ray, when it was authorized it was -- excuse me, sir. >> yes. >> when it was authorized it was not an election cycle. he was not a candidate, and the fact is -- >> he's a candidate right now. >> he's a candidate right now. >> right, and the prosecution was authorized as of monday when they gave the defense lawyers the last clear chance to avoid an indictment, so the prosecution was brought while former president donald trump is

a candidate for the office of president of the united states. >> mr. ray, do you have any evidence that merrick garland or joe biden authorized -- specifically authorized this indictment? >> no, the president has said that he did not have any role to play with regard to the prosecution, and i take him at his word. >> that same question with respect to merrick garland. >> i wasn't suggesting otherwise. do you have any evidence, though, that merrick garland authorized this indictment. >> the special counsel regulations require that the attorney general be notified of a substantial step with regard to a special counsel investigation which includes asking a grand jury to return an indictment. merrick garland was notified by jack smith if the regulations were followed that this prosecution would proceed and merrick garland was given the opportunity to either object or to acquiesce and let it fly. he at least acquiesced and let

it fly, which meant that he was notified, as he would be, and that means that the attorney general in effect authorizes the prosecution because he has the power to stop it. >> robert ray, thank you very much. that is a preview of some of the arguments we are going to continue to hear now that the american public have had a chance to take a look at this 49 page document, and just to the left of me, you're seeing the podium where special counsel jack smith will go, we're waiting to hear what he has to say. how much will he reveal. will he have more information even than is enclosed in this document. frank figliuzzi, barbara mcquade, and den dilanian are all joining me right now. we haven't said this i think maybe since the beginning of the hour about the stakes here, the stakes for the criminal justice system, obviously, the stakes for the justice system, the stakes for the prosecutors here, th stakes obviously for donald trump. it is a momentous, historic

time. what does jack smith need to do and say right now when he comes to that podium? perhaps in less than ten minutes. >> i think his goal is going to be to assure the american public that this case is based on evidence and not on politics. i think one of the things that donald trump has done so disastrously to our country is to frame everything in terms of politics. everything in terms of team red or team blue. that's what it's all about. and instead, i think what jack smith needs to rise above is that concept that everything's a political decision, that this is a case based on evidence, that not only are there charges of the espionage act but these charges relating to obstruction of justice, which, you know, sometimes are dismissed by trump and his supporters as mere process crimes. these are incredibly important crimes because they go to the very integrity of the legal system. >> in this highly politicized world, frank figliuzzi, is there really another trial going on here? i know we talk about the court of public opinion, but jack

smith is making a case that already we know a good bit of the voting public, a good bit of americans don't believe, won't believe, will never believe. how does he do that, how does he convince people this is about the justice system, this is about no one being above the law, and this is not about politics? >> jack smith needs to be the person he's always been in his career, and he'll continue to be. what we're going to see today in this press conference is the rule of law personified in a career prosecutor standing in front of the american people saying here's the job that our team did. you don't have to like it. you don't have to agree with it. but it's what law and order looks like, and if you don't like that, i'm not going to apologize for that. so he's not speaking to the core of the maga movement, who as you

say will never buy into this because they're in an echo chamber, a rabbit hole. but rather he's speaking to america and really the world is watching, absolutely today, and he's telling them writ large this is how it's supposed to work. this is how i did my job. >> and as someone who has covered national security for such a very long time, ken dilanian, let me get your final thoughts about the enormity, frankly, of what the prosecution team, what jack smith is facing but also what you may know from conversations you've had where you are there in florida about how they plan to approach this case. >> reporter: look, this is a significant moment in american history. just last week an air force colonel was sentenced to three years in prison on a set of facts, a classified documents case much less strong than this devastating indictment, but donald trump is presumed innocent. he's going to have his day in court, possibly in this courthouse behind me, although it's up in the air. there's a lot of preparations

being made among the security agencies, among the federal marshals for that process to unfold starting with the almost unimaginable spectacle of the former president of the united states turning himself in to a federal building. and the same government that he used to run and supervise will be fingerprinting him, taking his mug shot and seizing his passport, chris. >> let me ask you about that, barbara mcquade, because that was not something that we saw happen when he was in a manhattan courtroom, but what are we looking at in terms of what will happen on tuesday? >> well, i imagine he'll be processed mostly like most defendants but probably not exactly like every defendant. when someone is allowed to turn themselves in as they often are in a nonviolent case where there's not a fear of danger to the community or risk of flight, a person is actually put into custody. they are booked. they are fingerprinted, sometimes a dna swab is taken, and then they are brought into the courtroom.

i would imagine as we saw in the new york case that a secret service agent will accompany donald trump throughout that entire process. it may also be the case that they're able to get a waiver for a mug shot in light of the fact that everybody knows what donald trump looks like, and that it would be very difficult for him to evade detection simply because people don't have access to that photo. i think he may get some special treatment only because he is a lifelong protectee of the secret service. after he is processed, he will then go to court for his arraignment. typically what happens there is a defendant gets a copy of the indictment. they get told of the potential penalties and an opportunity to have it read if they choose. >> i want to thank all my guests throughout the day including frank and barbara and ken, and of course my colleagues, andrea mitchell and katy tur. as we got this 49 page indictment unsealed and we wait for jack smith to take to the podium. i now turn it over to my good friend and colleague nicolle wallace. >> a herculean effort reading while talking on live tv. i'm in awe of all of you.

continuing our special coverage, i'm nicolle wallace. we are following the breaking news, this extraordinary indictment of the 45th president, donald j. trump in a matter of moments special counsel jack smith will deliver a statement to the country, frankly to the world, on camera for the very first time. it's an historic moment since he was appointed in november we haven't heard him speak or seen him speak from before a podium. as he's gone about what turns out to be an extraordinarily detailed investigation in hermetic silence. we'll bring you his statement live the moment it begins. again, that's set to start any moment now. of course the reason for this statement, those seven criminal charges against donald j. trump today having to do with the alleged mishandling of classified documents in his post-presidency at his mar-a-lago and bedminster properties. a short time ago that indictment was officially unsealed. you've watched my colleagues read through it and make sense

of it with the expert analysis of andrew weissmann and ari melber and others, it lists 38 counts total, 31 of them have to do with trump's willful retention of national defense information. that is the espionage act. and another count of false statements. then there are a number of charges that include both donald trump and his former valet, walt nauta. there are five, one count of withholding a document or record, one count of corruptly concealing a document or record, one count of concealing a document in a federal investigation, and one count of a scheme to conceal. the final of the 38 counts is just one that has been charged to walt nauta, one for false statements. both defendants have been summoned to appear on tuesday. joining us here for our continuing special coverage, my colleagues rachel maddow and joy reid. also with us in studio,