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Biden: 'Trump And The Maga Republicans Represent An Extremism That Threatens" The Foundation Of Our Republic; Hearing Ends With No Ruling In Trump's Special Master Request. Aired 7:50-9p ET

Aired September 01, 2022 - 19:50   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

[19:50:00]

JOHN BERMAN, CNN HOST: Speaking for the birthplace of American democracy, President Biden tonight will issue a warning about the state of that democracy as he sees it, and what Americans can do about it. John Berman here in for Anderson.

You're looking at live pictures of Independence Hall in Philadelphia, where the president is expected to begin his remarks just after the top of the hour. We have some early passages from this speech, and we'll talk about them shortly.

First, though, take a look. This is new polling from Quinnipiac, and it's hard to find anything more to the point tonight 67%, two in three, say American democracy is in danger of collapse. And the percentage of Democrats and Republicans who believe it identical, however, don't go looking for a bipartisan silver lining in that. The poll doesn't ask people to give a reason why they believe this. So it's possible even likely giving other such recent polling then a deep partisan divide exists over what people think is wrong, which to use a political science term, ain't good and does not bode well.

But it certainly sets the stage for what the President will say tonight. In the backdrop, significant new developments in the court battle over documents seized from the former president's mansion and what he said today about pardoning January 6 defendants.

Let's go first to CNN's Jeff Zeleny, who was at Independence Hall in Philadelphia. And, Jeff, what more are you learning about the speech tonight, which begins in just a few minutes?

JEFF ZELENY, CNN CHIEF NATIONAL AFFAIRS CORRESPONDENT: John, we are learning that President Biden is going to say with a some sense of urgency in his tone, that democracy is not guaranteed, that it's incumbent on all Americans to stand up and protect and fight for their democracy. Of course, he will argue that American democracy is under an urgent threat and assault from Trumpism that has really influenced and infected the Republican Party in his view. Take a look at this one excerpt that we're getting from the White House to talk about this specifically, he says this, he said MAGA forces are determined to take this country backwards, backwards to an America where there is no right, to choose no right to privacy, no right to contraception, no right to marry who you love. So you can hear by that sentence there, John, this clearly goes much beyond farther than beyond just voting rights and democracy overall. He's using this as a midterm election moment to pivot to try and really paint a stark contrast between the Democratic Party and in his view, the Republican Party.

BERMAN: So Jeff, talked more about the timing of this speech. Because the President is wanting to make this speech. We understand for some time, he's talked about the battle for the soul of the nation since he launched his campaign right there in 2019. So why is he choosing to make this speech now?

ZELENY: Well, John, quite simply because the midterm elections are nine weeks away, 68 days from today. So this is why there is some urgency in his message. He's been watching primary elections throughout the last several months, watching election deniers be elected for Secretary of State positions, for gubernatorial candidates, and he is worried about this threat to democracy. But first and foremost, John, it is political, they are trying to sort of turn the criticism and focus away from the Democratic Party of concerns about the economy, inflation, gas prices, to focus on the former president, and what he has done in his view to this Republican Party.

So John is all about setting up the stark contrast for the midterm elections. And yes, we are here in front of Independence Hall. The Liberty Bell is just a few steps away. But most importantly, he's in Pennsylvania for a reason. The governor's race here, Exhibit A of this the Senate race as well, this could certainly determine who controls the Senate. So that's why President Biden is here tonight, John.

BERMAN: We should say in Pennsylvania, again tonight because he was just there. Jeff Zeleny, at Independence Hall. Thank you so much.

And as we wait for the President's remarks, I'm joined here tonight by CNN senior law enforcement analyst and former FBI deputy director Andrew McCabe, CNN national politics reporter Eva McKend, also CNN CHIEF White House correspondent Kaitlan Collins and CNN contributor Evan Osnos. He has written a remarkable biography of the President, and his latest book is on point for tonight it's called Wildland The Making Of America's Fury. With this us well, you can see him there waiting patiently. Scott Jennings, CNN political commentator, and former Special Assistant to President George W. Bush.

Evan, I want to start with you. We just heard Jeff give a description of some of the things we'll hear tonight. Broadly speaking, what themes do you think you will hit on?

EVAN OSNOS, CNN CONTRIBUTOR: This idea of a struggle for the soul of the nation is something that is really deeply felt by Joe Biden. I have to tell you I remember a conversation with him when he was in the White House the last time as Vice President about whether he was going to run for president. He said in the end it comes down to what is the cause? In a sense, what is your vocation? What's the thing that history summons you to do?

[19:55:13]

Biden decided in the beginning stages of the 2020 campaign, it was about a real wrestle for whether this country was committed to democracy. And it has morphed over that time. First, it was about the rise of hate groups in Charlottesville, later, it was about an armed attack on the capital over the 2020 election. And today, as Jeff mentioned, it's about people potentially coming into office, who would have control over the election apparatus in '24. And they don't, in fact, respect the legitimacy of a free and fair election as far as 2022.

BERMAN: A battle for the soul of the nation is part of the story that he tells about why he ran this time around in the first place. Kaitlan, again, what was the discussion or what the discussion has been about this speech?

KAITLAN COLLINS, CNN CHIEF WHITE HOUSE CORRESPONDENT: They haven't talked about this for a while. And so, this was kind of the question that we had for officials this week, which is why now, why was September 1st the time. And Jeff is completely right, that it part of this is the political aspect of it that the midterms are approaching. They understand that that's going to be a real part of this. But also it they won't say it's about Trump. And in fact, when you asked -- when reporters asked if it had anything to do with Trump, if he would name Trump, they said it would be a very direct, direct discussion. It's a speech about democracy. It's not about the former president. They've been kind of trying to emphasize that and draw that line there. And say that it's not even reprimanding Republicans. It's those who styled themselves after Trump.

I think the timing of this you can't miss the fact that the former president is back at the forefront and in the headlines with these investigations, his attorneys in court today. And so they said tonight expect a more somber serious President Biden, but they also want him to be more optimistic, to look ahead to show that there is a path. They argue that if you elect Democrats in November, that democracy can prevail.

BERMAN: Is the rally setting that we've seen earlier in the week in Pennsylvania, 300 invited guests who are sitting outside Independence Hall again, you're looking at live pictures of the door where I believe President Biden will walk out in just a few minutes.

Scott Jennings to you, Jeff previewed one of the excerpts that the White House has released early of this address, and it says that President Biden will say MAGA forces are trying to, quote, take this country backwards. How do you think that will land with Republican voters in the White House is trying to make a distinction between what they call MAGA forces and Republican voters?

SCOTT JENNINGS, CNN POLITICAL COMMENTATOR: Well, I find it interesting that they keep saying that the speech isn't about Trump, but we're going to say MAGA, we've been saying MAGA, ultra MAGA from the White House press secretaries podium and from Joe Biden's own lips. So, it's obviously about Donald Trump. And it's clear why because they think putting Trump at the center of the election is their best chance to hold the Congress, period. If it's a referendum on Trump, like it wasn't, say the 2018 midterm. They think they've got a great chance.

BERMAN: What do you think?

JENNINGS: If it's a great -- if it's a referendum on Biden, who's sitting somewhere in the low 40s right now, if it's a referendum on the direction of the nation, which is about, you know, 25, 30% say right track, 70% say wrong track. If it's a referendum on inflation, the border or crime, then it's going to be a great night for Republicans.

It's clear why he's making this campaign speech tonight. It has to be about Trump, if it's about any policy issue. That's in the top five for Americans and for independent voters, Republicans have a chance to, to do very well. So I see why they're doing it. But I think it's a little disingenuous to say, oh, it's not about Trump. It is and his voters, which by the way, we're about 74 million of them in 2020 are going to take this fascism and, you know, extremism remarks pretty hard. I don't think it's going to be convincing for them at all.

BERMAN: Look along those lines, the House Minority Leader Kevin McCarthy has picked up on that. Evan, I want to play a little bit of what he said just a short while ago tonight.

(BEGIN VIDEO CLIP)

MCCARTHY: When the President speaks tonight, at Independence Hall, the first lines out of his mouth should be to apologize for slandering tens of millions of Americans as fascists.

What Joe Biden doesn't understand is that the soul of America is in the tens of millions of hard working people, of loving families, of law abiding citizens who may be vilified for simply wanting a stronger, safer and more prosperous country.

(END VIDEO CLIP)

BERMAN: So what the President said earlier in the week was a semi- fascism was a bit of the underpinning for some MAGA philosophy. Kevin McCarthy says he has to apologize for that. Do you think the President will make a distinction between what he considers the MAGA philosophy and rank and file Republicans?

EVA MCKEND, CNN NATIONAL POLITICS REPORTER: Yes. And because he's been beat up over those remarks, which he said in private, that wasn't meant for a public forum. I think he'll soften that language a bit. But listen, this speech isn't for Kevin McCarthy. This speech is for the Democratic base, largely. I've been out on the campaign trail in recent weeks in Georgia and Pennsylvania, and it's really surprised me when I speak to voters when they say they are principally concerned, some of them not all about the preservation of our democracy.

[20:00:03]

This is something that is on their minds. And I think that is why we see the precedent and Democrats are really sticking on this issue. BERMAN: We are just about at the top of the hour right now, and President Biden is expected to speak momentarily. Andy, while we wait, maybe just picked up on this. This Quinnipiac poll, which is 67% of Americans basically think that democracy is in danger of collapse in its split evenly, each party says the exact same thing. And I'm asking you, as someone who's worked in law enforcement from inside the institutions itself, not as a political question here, but as someone whose work inside these institutions, what do you make of that?

ANDREW MCCABE, FORMER FBI DEPUTY DIRECTOR: You know, I think it's reflective of the great concern that people inside government, inside institutions like the Department of Justice, like the FBI, like the CIA, and other places across the intelligence community, are similarly concerned about what they see, not in the same political way that I think is reflected in this poll, but rather in the attack that has taken place focused on the institutions of government over the last five or six years. That's what scares them. That's what erodes their confidence and trust in their own ability to accomplish the very important missions they have to do every day.

SCOTT JENNINGS, CNN POLITICAL COMMENTATOR: John, is there any wonder why two-thirds of both parties think that? Because the leaders of both parties are telling them that. Joe Biden routinely says, democracy is on the brink of collapse, and so does Donald Trump. So, you have the leaders of both parties telling their faithful that hey, democracy is at stake here, democracy is on the brink. And interestingly, most Americans want both parties to go in a different direction for the 2024 election. I think a lot of what Joe Biden has been doing lately is less really about the midterms and more about his own position at the top of the Democratic Party, majority of Democrats don't want him to run for re-election. So, I'm looking ahead to 2020 fours as much as I am for November here.

BERMAN: We just held the Marines walk out there. This is scheduled to begin any second now. Kaitlan Collins, as we're waiting for the President to walk out -- you know what?

KAITLAN COLLINS, CNN CHIEF WHITE HOUSE CORRESPONDENT: One thing it will be interesting to hear him say is they've talked about -- the White House is about him talking about the path forward and having a more optimistic aspect to this speech --

UNIDENTIFIED MALE: The President of the United States and Dr. Jill Biden.

BERMAN: Right, the President and First Lady walking in right now where the President will give this speech again at Independence Hall, 300 invited guests there. Kaitlan, again, why do they think -- how much win does the President at this point think he has his back?

COLLINS: A lot, they feel very, very emboldened in recent weeks. And you've seen that, they've talked about it publicly. They touted it not just from a legislative and policy perspective, but also just from the argument that he's making. I think that also played a factor into why he is giving this speech now, given they've been talking about giving it for so long. And so, we do expect it to be about a 25-minute speech.

Now, the question though, is they want to reconcile that idea of the soul for the nation, the battle for democracy, but also optimistic and atone, given he is president now.

BERMAN: All right, there's the second speech he's given in Pennsylvania and just a few nights, as we watched Dr. Jill Biden sitting down. The President of the United States.

(BIDEN'S SPEECH)

BERMAN: President Biden finishing a 24-minute speech at Independence Hall in Philadelphia. He said as he stands there tonight, equality and democracy are under assault. And he left no doubt whom he believes it is under assault by. He said Donald Trump and the MAGA Republicans represent an extremism that threatens the very foundations of our republic. A big portion of the speech may be the majority of the speech devoted to that very subject.

I'm back with a panel of experts to discuss this. Kaitlan Collins, first, our Chief White House Correspondent, to you. This was a combative speech, and not at all subtle.

COLLINS: A very political speech. I think, with the exception of the speech that he gave on the anniversary of January 6 at the Capitol, this might be the most political, most forceful speech in that sense that he has given since taking office. And it's a bit of a surprise because we had spoken to White House officials earlier. We asked -- you know, he is someone who strayed from naming Trump very many times during his first year in office, he often stayed away from that. So as a White House reporter to hear him come out so quickly and name drop him so fast, and talk about basically the brand of extremism that he thinks Trump has founded within the Republican Party that clearly, he thinks is thriving, not in the sense that he wants it to. He came out very quickly and said Trump and said MAGA time and time again. It was a very political attack against those Republicans. He tried very hard to draw a distinction between Republicans and Republicans who style themselves after Donald Trump. Of course, whether or not they take that distinction remains to be seen. A very political speech by President Biden as this basically full-frontal attack on what the White House is branded MAGA Republicans.

BERMAN: An attack on MAGA Republicans, Evan, and a defense as he put it, of democracy. He literally framed this as a battle between light and darkness.

EVAN OSNOS, CNN CONTRIBUTOR: Yeah, look, it's clear, this is a speech Joe Biden's wanted to give for a very long time. For the last 18 months, he has needed to legislate, he's needed to operate within the boundaries of what Washington would permit. But there has been a growing sense in his mind that actually the threat is much greater than just a political problem.

As he said tonight, a really memorable moment was. Too much of what's happening in this country is not normal. He's appealing to what I think he believes is how a lot of Americans feel when they hear about playing footsie with political violence, or the idea of throwing out a free and fair election and he's appealing to them and saying, look, I know I'm drawing lines here, but I think that a lot of Americans are going to be on the side of the line that I draw.

BERMAN: Well, let's talk a little bit about one the lies that he's drawing there. The President really did step up his criticism of MAGA Republicans directly. Let's listen.

[20:30:08]

(BEGIN VIDEO CLIP)

JOE BIDEN, (D) U.S. PRESIDENT: Donald Trump and the MAGA Republicans, Representative extremism that threatens the very foundations of our Republic. I want to be very clear, very clear up front. Not every Republican, not even a majority of Republicans are MAGA Republicans. Not every Republican embraces their extreme ideology. I know, because I've been able to work with these mainstream Republicans. But there's no question that the Republican Party today is dominated, driven and intimidated by Donald Trump and the MAGA Republicans. And that is a threat to this country.

(END VIDEO CLIP)

BERMAN: All right, Scott, there was a lot in that excerpt to dissect there, really. He says, not all Republicans, maybe not even a majority are MAGA Republicans. He talks about how we can work with some Republicans. How will this land?

SCOTT JENNINGS, CNN POLITICAL COMMENTATOR: Yeah, but there's not a single Republican in the country he's endorsing for election or reelection. I mean, he's not going to go out and campaign for Republicans that he likes in their Senate races are in their house races. This was a very, very partisan speech. I mean, his core message to me was, if you don't vote Democrat, we don't have a democracy anymore. So that's not going to land very well at all with any Republican voter no matter what kind of Republican they consider.

I -- as I was listening to this, it sounded like a convention speech to me. There's a lot of polling out there right now that show a majority of Democrats do not want him to run for re-election. I thought this was candidly less about the midterms and more about convincing Democrats that he's up for a reelection campaign. I'll just say one final tactical thing, I do think it's smart for them to try to put Trump at the center of politics right now, if Republicans can stay focused on issues, they'll do better. If they stay focused on Trump, they'll do worse. He knows that. So, it's not an incorrect impulsive tactic.

BERMAN: It was right away. I mean, he mentioned Donald Trump's name right away, and then framed the whole speech around that.

Eva, you hear this talk about this being a political speech, and I don't think you could ignore any of the references to MAGA Republicans there. But for supporters of Joe Biden, for some of the voters that you've been speaking to out on the trail there, if you do believe that democracy, small d, not political, but democracy is at stake, is this the type of defense that they've been wanting to hear?

EVA MCKEND, CNN NATIONAL POLITICS REPORTER: Absolutely, without a doubt. And something else that really stuck out to me is that he almost seemed to sort of be reclaiming patriotism. Often you hear Republicans argue that they are the pro-America party, right? The Democrats are not patriotic enough. But what was more pro-USA than this speech? And I think this is exactly what his -- what Democratic voters wanting to hear. We honor the will of the people, right? A nod to our democracy, but also a nod to preserving reproductive rights. He is the president of all America.

You mentioned before too much of what is happening is not normal in this country. We are still at our core, a democracy. I mean, all of these things. It was a very, very patriotic speech. And I think that that is a lot of what Democratic voters across the country. They want to be patriotic, too. They want to be part of the Americans story, too. And I think he spoke to that.

BERMAN: Andrew McCabe, he made a direct plea to have violence out of politics, there is no place for violence in politics, he says. He referenced the fact that you can't be an insurrectionist and before democracy, for the people who are in law enforcement and to an extent are caught in the middle of this, is this something they want to hear?

MCCABE: No question. No question. People in law enforcement and people within I think government more broadly want to hear national political figures to include, of course, the president to come out and absolutely call out political violence. Everything from local school board officials to local election officials, to our -- my own former colleagues at the FBI, no place in our country right now. They sense very personally and daily, the rising tide of threats that they face, and I think those things will be taken positively.

On the other hand, I think people would like to have seen a bit more references to accountability. There really wasn't much talk about what we're doing about those insurrectionists it was merely calling out the fact that nobody should support an insurrection so I think it's a positive moment for those folks in law enforcement and in government but maybe would like to have seen more as well.

BERMAN: All right, friends, standby for a second here. We're going to take a quick break and pick up the political portion of the conversation when we come back.

(COMMERCIAL BREAK)

[20:37:46]

BERMAN: All right, President Biden's warning about threats to democracy tonight in Philadelphia, where the constitution of course was written and the Declaration of Independence. And though it was accompanied by a midterm political pitch and a recitation of his administration's accomplishments, he returned several times to his critique of the former president's followers.

(BEGIN VIDEO CLIP) BIDEN: MAGA Republicans do not respect the Constitution. They do not believe in the rule of law, they do not recognize the will of the people. They refuse to accept the results of a free election. And they're working right now, as I speak and state after state to give power to decide elections in America to partisans and cronies, empowering election deniers to undermine democracy itself.

(END VIDEO CLIP)

BERMAN: The question now and going forward is what impact these people, the president's name tonight will have on American politics and the President's estimation on American democracy, that and what the impact will be of their leaders legal troubles on the Republican Party was sources telling CNN the former president is now looking to wait until after the midterms to launch his 2024 presidential campaign. This is a complicated picture. And our political panel is back to help make sense of it.

Kaitlan, again, notwithstanding the claims before the speech that this wasn't a political speech, talk to me about how you think this suggests the White House wants to frame the next nine weeks of the political season?

KAITLAN COLLINS, CNN CHIEF WHITE HOUSE CORRESPONDENT: They think the political headwinds are in their favor right now that is a large part of what picked this timing. Because he thought about giving this before they had waited. They've been deliberating, he's in wanting to give this speech for a while. They picked now for a moment and no, they said it's not about Trump. He named Trump within moments, which is if you're not someone who's watched Biden during his presidency, he really tried to stay away from doing that. He would say the former guy, he would say my predecessor. He would not always name him directly. Tonight, he went there and he went there, multiple times. And I think when it comes to what they were seeking to do here, frame what the next nine weeks are going to look for the midterms, we'll see any Democrats pick up this message of the president used tonight. Are any Democrats who are running in pretty close races and swing districts, is that the argument that they're making? That remains should be seen I think as well.

[20:40:01]

I will say if you look at the overarching part of this speech and how they write it and they think about it, the beginning of it was very dark. It was at the brink of democracy. And basically, this argument that democracy is on the line and Democrats are the answer. And then he switched and went into the Democratic agenda. He talked about his agenda, his hope to cure cancer, lowering prescription drug prices, it was a bit of a turn for him to make. And so, I do think the question is, how do Democrats who are out there running and races that are on the ballot and overtake that?

BERMAN: Yeah. The question is, which the Democrats choose, which part of that speech they chose to listen to the most? If they're going to choose between the two.

Evan, let me play one more comment or byte of this speech?

(BEGIN VIDEO CLIP)

BIDEN: I will not -- the will the American people be overturned by wild conspiracy theories and baseless evidence, street claims and fraud, I will not stand by and watch elections in this country stolen by people who simply refuse to accept that they lost.

(END VIDEO CLIP)

BERMAN: Kaitlan was saying, before he's been resistant or was at the beginning to lean too much in to Trump. But he gave the sense during this speech, that he just couldn't take it anymore.

EVAN OSNOS, CNN CONTRIBUTOR: Yeah, I think that the reason he won the presidency was in part because he staked out a position as somebody who was willing to name Donald Trump as a threat to democracy. Look, I remember talking to him during the campaign, and he was reading a book called, How Democracies Die written by two political scientists who studied Latin America and Europe. And what they said was democracy doesn't die in an instant, it happens gradually. It's like Twilight. And his point tonight was you have to recognize that when you're talking about political violence, when you're talking about the erosion of confidence and institutions, those are the steps that actually lead --

BERMAN: Does he think it's good politics, too? Does he think it's a winning message?

OSNOS: That's why this was incensed sort of merger of these two ideas. It's a political point. Yes, but it is also the fundamental reason why he ran for this job.

BERMAN: So, Scott, there was something that happened today. And it does play a little bit into what President Biden was talking about, which is that President Trump suggested today that he would look very, very strongly, very strongly, I think he was very three or four times into pardoning January 6 insurrectionists, if he is in a position to do so, if he runs and if he wins reelection, he says he's very likely to pardon insurrectionists. Is that a message? That, for instance, Mitch McConnell or other people in the Republican Party or who want to take back the Senate? Is that a message they want to hear?

JENNINGS: No, I mean, this is looking backwards. And it's what Donald Trump wants his next campaign to be about. He wants it to be about re litigating 2020, righting the wrongs, you know, in his mind of how it was taken away from him. I mean, just this week, he tweeted that he thought he should either be reinstated or we should have a new election right now.

BERMAN: Does the combination of the former president saying that, or does the presence of that give the current president ammunition in this speech?

JENNINGS: Well, of course. I mean, Biden knows if they put Trump at the center, Trump will be all too happy to oblige it. And every day we spend talking about what Trump's saying and how Biden is framing it. And if you're on the -- you know, from a Republican messaging perspective, that's a day you're not talking about inflation and border in schools and crime, that's a day Biden is going to win. So, if pure Republican operative perspective, you've got to not take -- you've got to resist this, you've got to put the American people in your constituents at the center of your messaging and not let Donald Trump hijack your campaign every day, because Biden knows this. That's why this is not an incorrect technical impulse, because they're not doing so hard on some of the economic stuff. So, to put Trump at the center of it, it makes some strategic sense.

MCKEND: You know, John --

BERMAN: Go ahead, Eva.

MCKEND: This speech, it really felt like a reset, like a reset that the President, the administration really felt like they needed. I'm curious to see now in the weeks ahead. Democrats really needed a midterm message. Let's not forget how chaotic the last two years have been for Democrats in Washington in terms of being able to land some policy victories.

Finally, in the 11th hour, they've been able to be cohesive enough to secure some, but Democrats desperately need a midterm message. He just provided them one. I'm really curious to see if they follow his lead, and really center of this argument over the health, being concerned about the health of American democracy in the weeks ahead.

OSNOS: I will say it's also not just about Democrats, he was exactly right. It's also about independence. Look, you've seen the numbers over the last six weeks or so, it's pretty clear his approval rating among independents has gone up nine points. And, you know, he's not -- it's still not great, but it's -- people are responding to what they're getting done in Washington. They're responding to the idea that he is drawing attention to the fact that most Americans actually do not like what the Supreme Court has done. So those are the kinds of people that John Fetterman is trying to get in Pennsylvania. Those are -- these are key voters, and that's who he's talking to tonight as well.

JENNINGS: And what's interesting about these campaigns is if you look inside the partisan splits in these polls, what Republican voters or, you know, conservative leaning voters want to hear, inflation, economy, border, crime schools, is totally different than what the Democratic leaning. They want to hear abortion, climate, guns, and other things. And so, these campaigns are on the battlefield to some degree against each other, but they're two ships passing in the night, they're talking about totally different issue sets to two totally different groups of people. I think it's pretty risky actually for Biden to totally ignore, you know, inflation and mostly ignore economic issues, because a lot of independents, to your point, do want to hear about that.

[20:45:14]

BERMAN: All right, Scott. Eva, Evan, Kaitlan, thank you all very much. Next, the former president and the latest turn in his court battle over highly classified documents taken from Mar-a-Lago that one of his attorneys today likened to an overdue library book.

(COMMERCIAL BREAK)

BERMAN: What was expected to be judgment day in the battle over documents seized at Mar-a-Lago turned into deferred Judgment Day, which is not to say it lacked for interest or controversy after all, when one of your lawyers as the former presidents did in court today compares said documents to an overdue library book, controversy does follow.

CNN's Sara Murray has the very latest for us tonight. So, Sara, this was an interesting hearing. What happened?

SARA MURRAY, CNN POLITICAL CORRESPONDENT: Yeah, it was John. Look, we've seen these two sides trading barbs and court filings. But this was their day in court. And it lasted a little bit over two hours. And as you pointed out, we heard a sort of extraordinary argument from the Trump team, comparing, you know, the possible illegal retention of potentially classified documents, certainly documents with classified markings as akin to a fight over an overdue library book. They are continuing, of course, to push for a special master to be an independent reviewer of all the materials. The Justice Department said, you know, their filter team has already been through this stuff. They said that there's no evidence that the former president's rights have been violated, but the judge said, you know, what is the harm and appointing a special master kind of an indication that that was the direction that she has been leaning.

She did not know as you point out, make a ruling. She's going to rule on this on paper and we don't know when that's going to come out.

BERMAN: We've got no idea when it's going to come out. What did the judge say, Sara, about the Intelligence Committee reviewing documents if a special master is appointed?

[20:50:05]

MURRAY: Well, this is obviously an area that officials have been very concerned about is what are the potential national security risks if these documents, you know, were exposed to other people. The judge said that she would have a carve out so the intelligence community could continue reviewing these documents as part of their national security assessment. Because she does appoint a special master she said, it's possible she will block the Justice Department from being able to review these materials while the Special Master does its job, John.

BERMAN: All right, Sara Murray, thank you as always, for your reporting.

We're joined now by former Assistant Special Watergate Prosecutor Nick Ackerman, former Federal Judge Nancy Gertner, she's now a Senior Lecturer at Harvard Law School. Also, Conservative Lawyer George Conway is with us.

And Judge Gertner, I just want to start with you, given everything we know so far, do you think, do you believe based on what you heard that this judge will appoint a special master? And when do you think we might hear?

NANCY GERTNER, FORMER FEDERAL JUDGE: I have no idea. I mean, that's not the answer you want to hear. I mean, it sounds like she -- the arguments are overwhelming against appointing a special master. One thing, sure, I've waited two weeks or three weeks almost to do this. And the review is already done. For another thing, he has no right to these documents, any of the documents, right? These are presidential records. There is no executive privilege.

There's colorfully a right to the attorney client privilege issues which they have already identified. Having said all of that, it's clear that this judge wants to split the difference in some way. And she wants to appoint a special master. The problem is, how do you begin to disentangle the responsibilities of a special master so that you allow the intelligence community to deal with classified information, you allow the attorney client privileged information to go over what the DOJ has already gone over, and not interfere with an ongoing criminal investigation. So, it's a very narrow pathway. And it seems almost symbolic. She wants a special master but it's not clear what he could do or she could do.

BERMAN: And is complicated. And in some ways, it would be novel given that a special master overseeing executive privilege is not something we've ever seen before.

George, Trump's lawyer tried to downplay what the former president did, comparing his action to not returning an overdue library book. Now, these are documents, some of them with markings of the highest classification. What do you think of that comparison?

GEORGE CONWAY, CONSERVATIVE LAWYER: I mean, to gaslight, a federal court the way they gaslight people on Fox News is singularly appalling. I mean, if this -- if we're talking about library books here, we're talking about he took a truckload of library books, stole them from the library, the librarian came and asked for them. He didn't give them back. The library shows, comes up with -- shows up with the cops, he gives a few of them back and then lies. And it turns out, he's got a whole cache of the books still left in his house. That's that would be a proper analogy, except that we're not just talking about regular old books here, we'd be talking about rare library books of the sort that, you know, you have to be very, very careful with and treat with great care. And this is just outrageous that they would downplay the severity of what he did here in stealing these high national security documents of the highest top-secret order that, you know, that was released could result in grave damage by definition to the national security.

BERMAN: Yeah, that is the definition of top-secret classification.

Nick, as we just heard from Sara Murray, the judge is considering publicly releasing a more detailed inventory of what was seized at Mar-a-Lago. What do you think that could mean?

NICK AKERMAN, FORMER ASSISTANT SPECIAL WATERGATE PROSECUTOR: Well, I don't think it means anything good for Donald Trump. I mean, again, he has shot himself in the foot with a shotgun. Anything that comes out is only going to give us more context, more dates, more information that's not classified, but it's going to put more texture and information around what it was that he stole and kept at Mar-a-Lago. None of this is going to help Donald Trump and it's going to give journalists lots of fodder to go over, try and put the dates together, try and figure out what was going on at those particular times. It'll give you an idea of which documents were aware. So, you'll know exactly what came out of Donald Trump's desk. You'll know what came out of the storage room, you'll know what came out of any other place. I mean, none of this is good. I mean, the even if Donald Trump finally winds up getting his special master, this has been a colossal political and PR last for him, because this motion has done nothing but put more context on what he did. And if he had said nothing, and no one ever got indicted for any of this, none of these tracks would have ever come out.

[20:55:01]

BERMAN: Judge Gertner, both sides say that if a special master were to be appointed, the whole process could be pretty quick. The judge indicated that she thought it could be pretty quick. But what does that mean, any sense?

GERTNER: Well, pretty quick is a relative term, right? I mean, the special master has to be selected, both sides have typically given names to the judge. And the judge has to pick the special master can't be anyone who has any -- who could be disqualified because of -- because of partiality. So, this not going to be easy to pick somebody, former judge or whatever. That's not going to be easy to do. There were -- you know, what was it, 50 -- how many boxes of material are we now talking about? How quick could that be? And again, I don't completely understand how she is going to draw the lines. The classified information will be in one box. Ok, one bucket. But does it -- she gives someone then total review of everything that isn't classified. How can that not delay the proceedings here?

BERMAN: George, very quickly, the former president on his social media outlet today has been complaining repeatedly about the picture that was put in the DOJ's filing which showed the documents they laid on the floor, take a picture of them and he seemed to be most upset that they were put out in a messy way. But in the process, he also acknowledged that they came from his cartons. What do you make of that?

CONWAY: Well, it's funny. A few weeks ago, he seemed to have acquainted himself quite well with the Fifth Amendment to the Constitution of the United States when he played it 440 times in state court deposition in New York. He should go back to that and start making statements because every time he makes a statement, he seems to be incriminating himself more. He just admitted that he had these classified documents in his office, doesn't matter whether they were on the floor on -- in a drawer, in a box or on the shelf, he had them, he stole them, he was -- and they were in his office. And that's basically all he wrote. That's a crime.

BERMAN: All right, George Conway, Nancy Gertner, and Nick Ackerman, thank you all so much for being with us on this busy night. We'll be right back.

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