the department of justice compelled by a federal court made the incredibly unusual move of releasing an affidavit before charges are filed or declined in an investigation. not only that but the affidavit is for probable cause to get a search warrant for the home and private club of a former president of the united states because the government says that president took home hundreds of classified documents that appear to contain national defense information to an unsecure location when he wasn't supposed to. here is what we learned. beyond classified and top secret markings, the affidavit details the specific markings fbi agents found on some of the documents in the 15 boxes that were returned to the national archives back in january, a year after donald trump left office. in other words, the markings that set off alarm bells at the national archives and eventually led to this whole investigation. hcs, human control system,

according to ken dilanian, that is a designation by a cia officer or possibly dia based on conversations with human source overseas, ie, a spy. there's also orcon originator control, noforn, as in cannot be shared with foreign nationals, fisa and si, signals intelligence, in order intercepts of communications. it also contains the marking fpotus, handwritten note, as in fots the former president of the united states is believed to have written after he left the presidency. and in a 13-page memo explaining why the d.o.j. made redactions, the government argues it needed to, quote, protect the safety and privacy of a significant number of civilian witnesses in

addition to law enforcement. key in on those words, a significant number of civilian witnesses. we'll explain what that tells us. but first to note, the court's system, the web site, crashed, which is why the redacted affidavit did not come out until about 15 minutes after the noon deadline. apparently there were just too many reporters trying to get ahold of it and that is a good indicator of what's at stake. beyond the justice department's worry that it would compromise the investigation, damaging witnesses and endangering agents, et cetera, the fact that it crashed underscores the sheer magnitude of the public interest and just how completely unusual this is, both that the former president even took records home but also that he delayed and allegedly obfuscated for so long, the fbi said it had to search his home and private club. it is a big day.

joining me is shaq brewster and andrea mitchell and, david, i'm going to start with you. we had talked about what was going to happen today many times over the past week and now we know i just laid out what stood out to nbc news, our teams here, what stood out to you? >> if i were president trump and his attorneys, i'd be fearful of getting a target letter. even with all these redactions, katy, it's clear the government had a pulverizing amount of information and more than exceeded the standard of probable cause and that they are all in. they are all in for building a prosecutable case for a violation under the espionage act, section 793e for willful resense of classified

information in an unauthorized place and extrapolating from redactions after a section where they describe cash patel trying to claim president trump declassified all this stuff and i'm guessing that's where they are knocking down piece by piece the notion that any of this stuff was declassified. as we pointed out in your intro, we're talking about the holy of the holies of sensitive intelligence information, fisa, program material, he's in deep jeopardy. >> i mean, humans raises a lot of red flags here. when you're talking about that information and seeing so many redactions, explain more about what that means. what sort of information would be had in a paper document about a spy? >> well, it would be intelligence reporting that on its face would be sourced from human intelligence collection. it might not identify the individual but it would contain

sufficient information about the provenance of the information, how that information -- how the person was in a position to collect that information and provide certain other potential identifiers that if it fell into the hand of unauthorized people, people unauthorized to see that information like some of the foreign nationals that seemed to traverse mar-a-lago from time to time, that informing would be at risk and at top secret level would pose exceptionally grave harm. >> if you're a foreign government and you're seeing the redactions and the markings that they've listed, are you concerned about what information might be revealed that could jeopardize your own security? >> absolutely. and, as you know, katy, we have a group of very, very close allies, principally the brits

with whom we share almost everything. that was already compromised by president trump when he put up on social media a satellite photo of iran after an explosion showing just how good and how precise our overhead surveillance was. and this, of course, goes farther. it's not only fisa and sources and methods, it signals no foreign use intelligence but s.i. signals intelligence but also the human intelligence, the human spies. remember when foreign -- russian foreign secretary, foreign minister lavrov was in the oval office and you well remember this and the ambassador from russia and the former president at the time early in his administration revealed a spy, a secret source within the russian government, which wasn't even our own spy, it was an ally spy

who had to be extracted as a result of that revelation. so whether from lack of experience or inattention or lack of caring now and we see in all of these months of refusing to turn back these materials, if it had been an accident, if it had not been intentional -- if it had been an accident and stuff gets mixed in in the boxes of leaving the white house in an election that he never conceded, that would be one thing. but to have all of this classified material in the first 15 boxes that were eventually turned over to the national archives last january and then to have all of these succeeding months and failing to cooperate with visits and calls and lawyers' conversations and a subpoena, this certainly indicates that the decision to reach -- to ask for a search warrant and to authorize the

search warrant was not casual. and i know the former president has responded on social media and says "no nuclear", which is a report "the washington post" had done. nuclear note could be included in those national defense documents in several of those boxes. they're never going to specify exactly what it is. we could have lost a spy in russia or china or beijing. when they see human, that is really significant. it sets off alarm bells around the world about the security of u.s. intelligence and that's why the damage assessment has been requested by the intelligence committees and the intelligence agencies have not confirmed they're doing one. it may not be a damage assessment but they have tried to figure out already what may have been proloined or lost in

those initial weeks or months and now the fruits of the fbi search itself. >> you talked about all of the delays and all the back and forth between the government and donald trump's team to get the documents back before the search warrant was authorized and in the search warrant, the affidavit, you see the words obstruction, potential obstruction. it says it prohibits the unlawful gathering, transmission or loss of defense information. it does not use the term classified information. why might that be? >> yeah, classified information isn't really what the law is actually all about. it is about the national defense information retention. the classifications are important but they're not necessarily what the eventual charge will be. of course none of these documents all together were supposed to be in donald trump's possession. they're all supposed to be stored by the national archives

and controlled by the national archives and in a way that he would have access to but not in his storage because those documents properly belong to the american people who can study this in the future, who are going to be looking back to the trump presidency and trying to decide what the heck happened over those four years, they're going to need those documents to look back on. the idea of a former president squirrelling those away is exactly why the presidential record act was created, to make sure these were maintained and it came about after watergate to make sure that richard nixon after he took some documents away, they wanted to make sure in the future that wasn't happen. so we talked earlier about how presidents have gone -- former presidents are gone through these procedures to obtain these documents when they're writing memoirs and what not under certain conditions and in limited capacities and they could have them for a certain amount of time but they had to return them to their proper owner, which is unthe law the american people and the u.s. government, katy. >> on that point and i was going

to bring it up later but the "new york times" had reporting on what president obama had to do in order to get access to his presidential record when he was writing his memoir. "during the three years that mr. obama wrote his 768-page memoir after leaving the white house, the millions of paujs were locked away. each time mr. obama wanted to review something, his aides submitted precise requests to the national archives. sometimes documents would be encrypted and loads on to a laptop and brought to mr. obama in his office. otherwise it would be placed in a locked back for his perusal. it's a lot different than about the way that donald trump was handling this information, the way it was stored, that it was at mar-a-lago, that it was

unsecured and not placed in scifs, et cetera. i wonder, david, does that push back directly, basically undercut entirely donald trump's argument, cashe patel's argument that donald trump had the ability to declassify whatever he wanted. the lawyers said, though he didn't argue donald trump had declassified the materials at mar-a-lago but instead patel was a news roar was saying that a little bit later also cited in this affidavit. >> they appear to be protesting too much that the president declassified documents, that he certainly never declassified. this is a statute of the espionage act passed around 1917, long before the modern classification system came into effect. you're right, the language of the statute doesn't reference

classified materials or documents but as a practical matter the government almost always charges cases under this session that involve classified documents. only one case has been charged in the modern era and i know because i charged it, that did not involve classified documents. it involved schematics of an aircraft carrier that someone tried to send to the government. it's clear to me how this affidavit has been provided to us, even if redacted form, that the government is all in in establishing that these were classified documents, the president never declassified them and they are ready to prove a case with authority from the senior leadership of the department that the president violated 793-e of the espionage act. >> donald trump is posting on what he's allowed to use since he's not allowed to use twitter.

can you tell us what you're hearing from trump's world. >> reporter: what he's saying -- >> no, i'm going to shaq on that. i'm sorry, andrea. >> reporter: you're hearing a lot of reaction from the former president on his social media site. the most recent post said "witch hunt." a post before that he pointed out that was heavily redacted, that it didn't include any was in on nuclear, which on andrea mentioned it doesn't mean that they found or didn't find any information on weapons when they conducted that search. he also posted an audio clipping from a radio so that he did. he said he did nothing wrong. we heard him attack the judge there he also said they could have just talked to us, taken anything that they needed. the big point is in that affidavit we saw that there were communications between trump's attorneys and the department of

justice. there were letters back and forth. we saw how his attorneys tried to suggest that the president declassified all of the documents or tried to suggest that even if he did mishandle it that the president wasn't subject and so there was a lot of communication on both sides on it. as we continue to learn more from the affidavit and these court filings, we're continuing to see the arguments made not just by the former president but by his allies. we continue to see them being undercut. when his allies said that these things should have been under subpoena, we learned from trump's attorneys that many of the documents were under subpoena by a federal grand jury. when they said that they should have had contact or reached o out to the attorneys of former president trump, we seeing now some of the letters that the attorneys of the former president submitted to the department of justice in some of those communications. so as we continue to learn more, many of those arguments that we initially heard after that august 8th search here at

mar-a-lago are continuously being undercut. and if we're talking about everyone fairly this this country, no matter who they are. merrick garland talked about that, we're talking about treating everyone fairly and there have been other officials that worked at the nsa or worked in the white house or at the defense department who have been charged, some imprisoned or fined, for taking home classified documents or sharing class. and sandy berger, his was a misdemeanor because that was before this statute was made a felony. actually, it was made a felony under donald trump in reaction to what he alleged and kept making a big deal of, which was hillary clinton's laptop, supposedly taking confidential information. but in any case, others have

been. david petraeus, for taking home information, for sharing it with pop or many of these were misdemeanors and they never resulted in severe penalties. but there are instances where people have been penalized, have been jailed and the fact is i think it fair to say they bent over backward because he is the former president of the united states. one thing and on a military reservation, where he lived, how an aide used to come to him when he was writing his memoir handcuffed with a brief case with confidential or classified information. this is the former supreme allied commander of world war ii of the european theater and he, again, would look at these

documents and then return them. this was even before the presidential records act. so these kind of information has always been kept confidential and never before, you know, since richard nixon when this law was created, never before have any presidential records been kept so casually. and just another point, president biden withdrew donald trump's security clearances which others have automatically. remember also, katy, just one final thought, remember when the north korean missile went off early in his term and the japanese prime minister was visiting at mar-a-lago and they ended up convening a national

security council right out there on the patio with all of the guests taking pictures and he had documents spread out, these are documents that are kept in vaults and he was spreading out the documents and deciding with his national security advisor at the time on how to respond to the north koreans and doing it in public. so there were plenty of reason to be concerned. >> this is when he was president and had the authority to declassify whatever he wanted. he was in a different position as president than he is currently in now. though his team said he had the authority to declassify and he did declassify, we haven't seen any documentation to support that. i would also note and we're waiting for president biden, he's going to be coming out and we'll roll that tape in just a few seconds so forgive me and we said it a bunch of times, donald trump shared secrets that weren't ours with the russians in the oval office, secrets that were the israelis' in the oval office. he was very loose about

privileged information that the united states had or privilege information that the united states was sharing or was shared with the united states. we have reporting from "the washington post," "the new york times," politico, et cetera, about the way that he treated records while he was in the white house. how he would rip up documents and put them in the toilet. here's president biden. >> reporter: do you consider it a success? >> i'll can are it a success if only 10% take advantage of it. look, people need help. and, by the way, the end result of this is as i met with everyone from the former secretary of the treasury to everyone else, this is not going to cause inflation, number one. number two, it will generate economic growth, the opposite. because you got people who are now in fact going to be freed up to be able to go borrow money to buy a home and start businesses and do the things that need to be done. i found it fascinating that some

of the folks who were talking about this is big spending are the same people who got $158,000 in ppp money, including the -- what's her name, that woman who believed in the -- anyway, and a whole lot of republicans who got a lot of money, the very people criticizing. so i think it's a good thing. it frees a lot of people up. it's going to grow the economy. we still have a way to go but i'm optimistic. >> reporter: mr. president, have you spoken to any of the family members of the 13 soldiers who died last year in afghanistan? >> not today but i have spoken to them in the past. >> reporter: president trump said he declassified all these documents. could he have declassified -- >> i declassified everything in the world. i'm president. come on. i'm not going to detail. i don't know the detail. i don't want to know. i'll let the justice department take care of it.

>> reporter: [ inaudible ]. >> reporter: mr. president, is it ever appropriate for a president to take home with them classified and top-secret documents? >> depending on the circumstance. for example, i have in my home a space that is completely secure. i'm taking home with me today today's ppd. it's locked. i have a person with me, military with me, i read it, i lock it back up and give it to the military. >> reporter: without a specialized area in which to view classified document, is it ever -- [ inaudible ]. >> it depends on the document and how secure it is. >> reporter: in december -- mr. president, what is the view

because you essentially announced $2 billion investment for angola. >> that answers the question. do you think we could give $2 billion if we weren't excited about what happened? thank you. >> answering a lot there. does mention or was asked about the redacted affidavit and he said it's absurd that donald trump says he could just declassify whatever he wants. but that also he's not really going to comment and he doesn't know the details and doesn't want to know because he's going to let the d.o.j. do its job. speaking of the political consequences of this, you said that there's enough here to make donald trump worried, should make donald trump worried about a target letter. if you're working at the d.o.j. right now, if you're advising merrick garland, what do you tell him to do in a situation like this? do you think it's clear cut? >> if we're briefing this up to the attorney general's office,

we're keeping him informed about all investigative developments so he has situational awareness you it, things that could possibly blow back publicly, he's going to ask us if we're getting all the support we need, is there anything we need to do our jobs and hopefully the answer would be we've got it covered, have enough staff, prosecutors on this, agents. it's a meticulous project in which agents go through a fact process to bring their case. at the end there will be a careful evaluation of all the facts found in the investigation, the application of law and enforcement policy to those facts. are there aggravating fact that distinguish it from other cases that were not charged at all or more minimal charges? are there overarching charging

circumstances that should mitigate a decision to charge? all these go into the mix. at the end of the day there's going to be a very comprehensive prosecution memorandum like we put together in the clinton case or something akin to the mueller report that sets out everything, all the analysis, all the conversations and why or why not criminal charges were referred. we may see that in a public facing forum of criminal process. >> it's important to remember a what we're talking about now is the affidavit. this is what the fbi had seen from the documents they got in january. these are not the documents they viewed after the search of mar-a-lago. in the affidavit they say reasonably that more is there and a lot of it is redacted so we don't know exactly what their reasoning is. they have witness testimony that they say that they're relying on. and, by the way, when you're talking about civilian witnesses, am i wrong to suspect

that those are -- i save multiple witnesses. am i wrong to suspect that those are people in donald trump's orbit? >> i think there's every reason to believe that some of those civilian witnesses are people in or around mr. trump. again, this was the information the government had in its owe possession when they went to the judge. as bad as this is, this is like -- they found classified in the information in the closet in former president trump's personal office in mar-a-lago and so there is even more information tieing this classified stash to i in the affidavit that's now been released. so more and more the president's fingerprints are also well known to give directly.

so every reason to believe that there are people close to the president who the government does not want to identify. it's very obvious the governor has abiding concerns about witness, security about witness intimidation. this person has a track record of personally picking up the phone and trying to intimidate. we saw that on the january 6th committee where he called somebody out of the blue who had never spoken to this president in his life. i'm just trying to figure out why they might have said we think there's more there and beyond just witnesses and maybe surveillance video, if they saw that. i wonder if when they opened these boxes and went through these records if it was a ten-page and pages 8 and 9 were missing from that document, is that potentially something

worthy of considering? >> if classified documents are discovered in a place they're not authorized to be and there are missing pages of that classified material, it gives rise to further concern about where the hell is that stuff? who has that? is that out in the wild where it could be compromised? these are very fact dependent cases. i can't emphasize enough that sometimes these are facile many and it comes down to the specifics facts and in these cases present more aggravating factors than others. the volume of classified will be greater, level of sensitivity will be greater, information about who had access to them will be greater. intent may bear on the question and why was it moved from the white house and why was it kept in these places?

why did they move it around at mar-a-lago? who was involved in those decisions? a myriad of questions that the government is trying to answer and probably has begun to answer in regarding how to exercise its prosecutorial discretion in this case. >> david, thank you so much for allowing me to prevail upon your time so long today. i appreciate it. former chief of the counter intelligence in the d.o.j.'s national security division. same question as jay bratt who has been on a lot of the filings regarding the search warrant. joining me now is david rrhode. barbara, tell me what stood out to you. >> a couple things, katy. one is by chronicling some of the history in this dispute, we see at least as of may donald

trump is on notice he is holding these things illegally and not scoring them properly. willful intent goes a long way toward that proof. the other is in the notice of the filing itself. not the affidavit but the notice. it talks about the need to protect certain categories of information and one of those is civilian witnesses, as you've been discussing. it says a broad range of civilian witnesses. that says to me and you just asked about whether you should assume whether this is someone in trump's orbit. i think it has to be. who else would be a civilian witness with access to this information? perhaps people who work at mar-a-lago. it could be former government officials like pat cipollone, who used to work in the white house council's office but that i thought was really intriguing. and then, you know, the other thing i thought was sort of interesting is it includes donald trump's handwritten notes. what do those notes say? was he writing about the classified documents?

was he writing d- in front of everything that said classified? i'm curious about that. these weren't stuffed in along with everything else by accident. he was actually reading them and marking them up. >> i'm so happy you brought it up, these f-potus notes, former president's notes, and we assume they were done outside of office because there's an "f" in front of that. >> something was classified and he wrote in "de-"much the wave he modified the map to show the hurricane was coming to alabama. i'd just be curious to see what's in there. >> david, we learned a lot more than we expected to learn today in this affidavit.

and just to be honest, a lot of it was redacted, pages and pages and pages were redacted of this document. but getting the specific classification markings about human intelligence, about fisa intelligence, signals intelligence. i'm not an expert in this. i only know what the government tells us about this information. i don't have a classification privilege of my own. but that takes it pretty far. >> these are a number of documents that they're talking about, the way it was stored, the sort of chaotic thing with newspaper clippings and classified documents next to it. i think this hurts president trump politically. he is reckless, shows very poor judgment and, again, he went after hillary clinton over and over again for her mishandling, allegedly, and she was never charged criminally for it of

emails and his own behavior is far more reckless than what she did and what he and his supporters said was criminal. so i think this is something that plays into this judgment problem, a sense of trump fatigue. will moderate republicans, will independents really want to put this man back in the oval office when he's essentially misleading justice department investigators, this critical period of what happens after may that you were just discussing and then he just continues to lie. the statements today denying that he had done anything wrong when it's very clear he did. i think there's a critical political impact to this. >> politically it is interesting because when we look at what happened in the primaries just in the fast few days, our own steve kornacki will tell you the turnout among republicans wasn't as high as the turnout among democrats, the enthusiasm gap.

congratulations have more enthusiasm and that was almost unexpected considering that donald trump had been believing and it kind of feels like this has been the law of things since donald trump came into the political spotlight. the more controversy around him, the more it animates his base. he had been saying people are really angry about this, they're going to come out and take vengeance for me and maybe it will be taken at the ballot box. we didn't see that. and although donald trump has raised millions off the fbi search, maybe the millions of dollars aren't with enough republicans voters to make it worthwhile for him. >> i think his true base will stick with him and defend him no matter what and if he's tried and convicted, it won't matter. it's the broader republican party, it pat cipollone, bill barr, all these officials who testified before the january 6th committee, brian kemp, the

governor of georgia standing up and saying the election was not stolen, he's lying, he cannot accept defeat and saying to look to the future, to not relitigate 2020 and, again, this sense of fatigue. i think there are moderate republicans who are tired of all this and then the details from today, human intelligence, the crown jewel for the cia is having a confidential human source and donald trump, that information was sitting in donald trump's basement for at least a year. >> is anybody else potentially at legal risk here, anybody at mar-a-lago on his political team who might have seen these documents when they shouldn't have? >> absolutely. there's one statute that pertains to people who lawfully came into possession of classified documents and then mishandled them. that would be probably the kind of charge that we would be

looking at for donald trump. but there's also a separate statute that makes it a crime for someone who did not have authorization who possessed documents. i could see that charge, a conspiracy charge if there was an agreement to keep these documents long past the time they should have had them. i can see an aiding and abetting type of theory of complicity here. also in that search warrant we saw a reference to the obstruction statute, 18 usc 1519, which is about concealing documents. anyone who assisted in that could be in trouble. if it simply requires knowledge, a valet who moved one box from this run to that room because donald trump asked him to, that wouldn't be enough. the classification isn't so much what matters as national defense documents, presidential records, government records, knowing that they belong to the united states of america and helping donald trump to illegally retain them. any of those people could be on the hook. >> barbara and david, you're

sticking around for us so thank you so much. coming up, we're going to take a look at the national security concerns surrounding the documents that donald trump had at mar-a-lago. this affidavit details the 15 boxes voluntarily handed over to the national archives back in january and what led them to believe they needed a search warrant for donald trump's home. what else might they have found after that search? and only 24-hour steroid free spray. while other allergy sprays take hours astepro starts working in 30 minutes. so you can... astepro and go. there's a monster problem and our hero needs solutions. so she starts a miro to brainstorm. “shoot it?” suggests the scientists. so they shoot it. hmm... back to the miro board. dave says “feed it?”

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♪ ♪ ♪ ♪ ♪ ♪ following breaking news, the fbi found 184 unique documents with classified material at mar-a-lago, including 67 marked confidential, 92 marked secret and 25 marked top secret. so what's the concern about our national security? back with me is justice department ryan reilly, ryan rose and joining me is former

assistant director for counterintelligence at the fbi, frank figluizzi. this affidavit speaks about the 15 boxes voluntarily handed over after much pushing to the national archives back in january of this year, a year after donald trump left office. the fbi has now done a search of mar-a-lago, recovered even more material. just refresh our memory about what they know about what they found in that search. >> yeah, i mean, i think the timeline is definitely important to emphasize here. this was all about whether or not they could do that search to begin with. this entire memo that we're seeing, this fbi affidavit is laying out the case that there was going to be evidence at mar-a-lago and potentially more classified documents. and, in fact, they were correct. after laying out this case, they did find a bunch of those documents at mar-a-lago. all of this information is information that shouldn't have been in donald trump's

possession, even if it wasn't classified, it has to do with the national archives. it essentially laid out a pretty strong case and that's how the facts turned out. we have the chronology of how many warning signs there were to donald trump's team that they should not be holding on to all these documents and yet there was not action for months and months, even as the archives pushed and d.o.j. representatives pushed to try to bring this situation to a close, katy. >> what about the fbi assessment of the national security damage? we had some reporting from ken dilanian that the official assessment, formal assessment, had not yet begun. what does that actually do, this assessment? how do the officials and the agents go through this? and, frank, why would a formal assessment not yet have been begun as of a couple days ago?

>> it's a good question. it should be done immediately. it should have started quite a while ago. but there could be a lot of legal reasons here as well, but i can tell you what's already happened as part of the damage assessment because i've had to do things, certainly not like this involving a former president but my guess is when we see classifications like "h" for human sources and top secret and special access programs and orcon there have been likely sobering discussions where the fbi has had to sit down at a scif with other colleagues and say i'm sorry to tell you this but your information was found at mar-a-lago, please tell me as part of the damage assessment how bad this could be. in some case, katy, there have been situations in the pass where the cia or other agencies have to exfiltrate a human

source who has been spying against his or her own government, perhaps someone that took years to cajole and recruit and find. and situations where microphones have to be pulled out, turned off so they're not emitting frequencies anymore or transmissions. that's how serious this is. and that's part of the damage assessment, assuming worst case scenario, let's look at the people that may is come in and out of mar-a-lago, assume they had access to it and go from there. it's a sobering thought. >> we were talking about the political consequences moments ago and going through the e-mail on my phone. i'm not seeing a lot of rapid responses from the rnc or from republicans about how this is a terrible affidavit that doesn't justify the search or defending donald trump. it's noticeably quiet, at least in my in box, which is usually

flooded with campaign-style emails from all corners of our political spectrum. how do you expect that republicans -- how do you expect kevin mccarthy is going to respond to this and how do you expect mitch mcconnell is going to respond to this? i know those are two very different men who had two very different responses to donald trump in general. >> i think you'll see a continued pattern where mccarthy is willing to do anything to defend trump. and there's no question that the trump-backed candidates for senate in the four or five key senate races are doing very badly in polling. and this gets back to the politics of it. is donald trump, again, his base will always stand by him. and we just shouldn't, you know, make ourselves think that they're all going to start believing anything the justice department or anybody says. but it's again a sense from the

rest of the party that he's a drag, that he's not helping them with independence and he's hurting them in these battleground states. and one last thing, this mention of a damage assessment. if there were a trial, i spoke to a former justice department official today, one key thing to sort of win a conviction from a jury would be showing that there was damage that resulted from these documents being, you know, kept in this unsecured location. so in there's any evidence that an adversary obtained some of this information somehow, intentionally or unintentionally, that creates even more legal jeopardy. i don't know that that's been found and it might not be found but that's a critical element of any criminal case. >> frank, what about the argument that there was quite a bit of time between getting of this 15 boxes and the concern raised about what else might still be there and when they actually executed that search? could that be used in defense of

donald trump, this idea that it actually wasn't all that pressing because they waited quite a long time, a year and a half almost, until after he was out of office to get those documents back? seven or so months, seven, eight months, since they knew that he had this sort of classified material at mar-a-lago? >> yes indeed. and i believe we've already seen that, at least publicly, as an attempt at a defense and certainly far right media platforms already saying why did it take this long if it was that serious. and it goes back further. we know from reporting that pat cipollone had conversations with the archives even before trump left office as he was about to transition out about the boxes in the residence of the white house that needed to go back. here's where i think, look, there's been a lot of criticism of d.o.j. and the fbi but have i a slightly take on the criticism. not that they moved too fast to a search warrant but they may not have moved fast enough. i think there was too much

deference to a former president. i get it but it's a damned if you do, damned if you don't scenario. look, when it comes to trusting a good faith negotiation with trump and his team, i would think that from an established track record that you would not wait this long, that the trust is misplaced. so i think they tried. i think national archives tried for perhaps too long and then d.o.j. enters the picture and then d.o.j. doesn't really get the documents to the fbi fast enough to begin what they would want to do. so, yeah, there's delays here and it may end up being used as a defense that, look, this can't be that serious if you waited this long. what would counter that defense, though, is the gravity and serious of these classification markings that we're seeing today. >> coming up, we're going to talk about the other big legal deadline that donald trump's team is fact and that deadline is today. it's about his request for a special master to review the

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president trump's lawyers are facing a deadline today to clarify their request for a special master. a federal judge says she needs a better explanation as to why the former president feels extra oversight is necessary when the fbi sifts through the seized

documents. back with me are barbaracway and frank figliuzzi. in this document, we see the fbi is detailed about how they're going to go through these documents, how they're going to filter them. but donald trump says, hey, i want a special master. our own chuck rosenberg has said that he thinks that maybe he will be granted that request. barbara, what do you think of that? and if he is, does that mean this whole thing, this whole sifting through of the documents that they have recovered from mar-a-lago starts all over again? >> yeah, i'm going to disagree with chuck, which is a rarity. he's usually very wise on these things. he may be right in the end, but special master is not unheard of in a search scenario. it usually comes into play when it is a lawyer's office that has been searched. and that's because the lawyer likely possesses documents per training to many different clients, whose communications would be privileged. and so, it sometimes is prudent to have an independent filter, as opposed to some other fbi agents who are unrelated to the case do that initial filter and

say, we're going to segregate these privilege materials, and then we're going to share the rest with the negligentive team. heres with it isn't even attorney/client privilege that seems to be the issue, but executive privilege material. which is just a nonstarter when it is the very executive branch that holds the privilege that wants these documents back. i just don't think that donald trump has made the case as to why a special master is needed in this case. it may be that the judge out of an abundance of caution and optics wants to do this, just to avoid the kinds of political arguments that donald trump would make, but i don't think you give credence to that. probably because he would cry foul no matter what you do, i don't think you need to appease that. i think it's unlikely that the special master gets granted here. i would also suggest that it's likely that the horse has left the barn here. that these documents have already been reviewed in large part. so the use of a special master to review them would be futile at this point. >> it's interesting that this

request came two weeks or a week and a half or so after the search. after the fbi had already started going through them, would it have been potentially a more successful motion had they done this in the immediate aftermath of the search? >> i think so, because i think then it would suggest that there was some legitimacy to the request. waiting two weeks suggests that they really just want something to wine about in my opinion, because if you really care about the process of the review, you would file that motion immediately. to do it two weeks later, and now, you know, a third week has passed, it seems it's really too late to be a meaningful request. >> so, frank, just explain to us if you can the process of going through these documents and how they do filter out stuff that's personal, stuff that's potentially privileged between a lawyer or thing, and what is necessary for the fbi to actually assess. i mean, i know they had his passports at one point and they did give them back. >> yeah, this is -- well, the

passport was a little glimpse of how this works and how a filter team works. but it really is resource intensive in the sense that you have to have an entire team of agents that's not actually assigned to the investigation. their objective, they kind of come from from other parts of your office, even another field office, quite frankly. i've seen that in my career. we literally had a case that was so big that i didn't want anyone in my office touching these documents. so we got another field office to filter the documents for us. and then often, there's attorney/agents that are on this, agents with law degrees, also, perhaps, general counsels in each field office that help put a legal eye on this. and then there's a briefing, there's kind of a legal briefing for the filter team saying, look, if you see this kind of thing, raise your hand. come over here, ask the question. but essentially, they are then going to say, this isn't relevant or we think it's privileged. kind of two buckets of

information and maybe this needs to go back. and a decision needs to be made by leadership that yes, indeed, this is good to go, with the understanding, we may not see this again. let's get it right, and we'll return it as not relevant or privileged. if it's privileged, they're going to put it aside, because privileged might still be pertinent somehow and relevant, and they may have to get litigated. there could be delays about this, all before the actual case agents get their hands on it. by the way, everybody involved that i just mentioned has to have all the cleerpss to see all of these very sensitive stuff that we just talked about. >> frank figliuzzi, barbara mcquade, thank you very much on what has truly been a very busy hour. i appreciate it. and that is going to do it for me today on this friday. happy weekend, everybody. but don't go anywhere, because lindsey reiser continues our breaking news coverage next. lindsey reiser continues our breaking news coverage next. uld? now they can. downy unstopables in-wash scent boosters keep your laundry smelling fresh waaaay longer

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new details and new reaction as we come on the air to that now unsealed affidavit. the document used to get a warrant to search former president trump's home in florida now out in the open. well, most of it, anyway. showing a summertime review of documents already returned to the national archives, putting this all in motion. this hour, what we're learning from the affidavit and what led to the search, including papers and documents that indicated that they contain highly sensitive u.s. intelligence and intercepts under the foreign intelligence surveillance act. our correspondents and legal experts are here standing by. also this hour, how this impacts the american political landscape. will it deter or bolden donald trump to run again for president? we're live outside of mar-a-lago. good afternoon, everybody. i'm lindsey reiser in new york. in for hallie jackson. and with me right now is nbc justice and intelligence correspondent, ken dilanian, tom winter, chief foreign a