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tv   MSNBC Live With Craig Melvin  MSNBC  May 3, 2018 10:00am-11:00am PDT

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news. an nbc news exclusive investigation. we're learning that federal investigators wiretapped the phone lines of michael cohen, the president's longtime lawyer, weeks before last month's raid at cohelp's office, home and hotel room. we begin with nbc's tom winter, nbc's julia ainsley, msnbc legal analyst danny cevallos, michael avenatt avenatti. john was also robert mueller's chief of staff at the fbi. i want to welcome all of you. julia ainsley, tom winter, you two broke this story. as this is unfolding. tom, i want to start with you. walk us through what we know. >> okay, what we know is federal investigators pursuant to a lawful court order warrant were able to wiretap the phone lines of trump personal attorney michael cohen. that this wiretap occurred several weeks before the now public search warrant that was executed here in new york several weeks ago.
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in addition to that, we've learned at least one phone call conversation between a line belonging to michael cohen and the white house was also intercepted. so right now, i think the key headlines, there was a wiretap associated with the search warrant in the investigation into michael cohen who is of course trump's personal attorney. the second thing we've learned is there's at least one phone conversation that was picked up on a phone line belonging to michael cohen and the white house. and the third is this was going on for several weeks before that search warrant took place. i'll let my colleague talk about it, this has been a discussion within the white house, but this is obviously just another step in the investigation and, as we know from court papers, federal prosecutors have already said they conducted covert surveillance of michael cohen's e-mails leading up to the search warrant being executed. this is a lot more than just knocking on the door and just asking for some documents,
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kacie. >> tom, thanks for that. julia, i want you to weigh in with more on what we know. a call between michael cohen and the white house, what does that mean? >> we know there's a white house line. presumably, that could have been the president, that could have been someone on his staff. but we do know that rudy giuliani gave his client, his new client, right after the cohen raid, the advice. do not contact michael cohen. it's very possible his line has been tapped. because he knew he had the legal evidence to be able to issue those search warrants to come into his offices, his hotel room. so he, being the long experienced lawyer that he is -- >> he just can't -- >> he made an assumption, don't call him, and he did anyway. >> the president? >> yes, the president did. he rebuffed the advice of his lawyer. it turns out this was pretty good advice. even before the raid a few weeks before, those lines had been wiretapped. as tom lays out, there is a legal bar to do that. which shows they had to go to a judge and show there was enough
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evidence in order to be able to get that surveillance. it's another level of surveillance. it's another reason why giuliani and trump would be worried about what information federal investigators are able to get for michael cohen. >> tom, to that point, just to be very, very clear, what is the standard for getting a wiretap like this? what would have had to unfold behind the scenes for this to occur? >> so, kacie, one of the things that would have had to happen is they would have had to say we tried every single investigative method we could possibly do short of wiretapping these phones, or if we tried those methods, any single -- in every single investigative method we would need, if we tried those methods, they would fail, and they would have to present that case, and these are not just three or four page warrant applications, these are significant affidavits filed presumably in this case by a special agent with the fbi who would lay out all the particulars as far as -- it goes to exhaustion, essentially
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anything we could try or anything we did try won't get us the information, that we have probable cause that we believe we can get on this wiretap. it lays out a tremendous cause as far as other evidence they would have come up with, that would have allowed them to convince a judge we have real reason to believe here we have some sort of criminal violation that occurred. in addition, typically, you have to lay out -- we talked to nbc legal analyst and former federal prosecutor chuck rosenbergen in regard to this. in actual manuals for u.s. attorneys, typically it says you have to find evidence of an ongoing crime. this isn't typically where say we rob add bank five years ago they could come up to our phones today and say maybe we hope they talked about it. in this case, you can say this is an ongoing conspiracy to cover up that bank robbery -- >> or we were plan to rob another bank. >> right, we may be lining up to rob another bank. i know that's kind of a silly cam pex
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example but i think it's a good way of explaining exactly how this woe uld go down. and at the end of the day, a judge has to sign off on. judges sometimes kick these back and say no, go back, i need you to try a couple more methods. get me some more evidence that you think there's an actual crime here. this isn't something where a federal judge will just say, yes, you want to listen to somebody's phone conversation, sure, i'll sign it right now. that's not how this goes. there's a significant legal process that has to occur here. it's laid out in one document that the justice department has to guide its attorneys. it's over 200 pages as far as some of the things you need to consider and some of the case law you have that allows you to do this. this is a complicated process and it's one that needs to be signed off, like i said, by a federal judge. >> if you're a prosecutor, does it make a difference this man is an attorney or had at least served as the personal attorney
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to the president of the united states, tom? >> it makes a huge difference because there is the attorney/client privilege issue that you have here. so you have to find a way to filter these conversations. the federal government has already said in public court filings they had a filter team set up for the e-mail communications. presumably they had a filter team set up here. you have a team that's not associated with the investigation that's listening to these calls saying, okay, this is clear attorney/client privilege, we can't share this with the prosecutors. can't share this with the investigators involved. or they could say, you know what, this has to do with potentially an ongoing conspiracy, which is one of the reasons, one of the ways you can actually get information and communications between an attorney and a client. and so in that case, they could say, you know what, this falls to the search warrant, this falls to the crimes that we think are being committed. so actually we can let the investigative team know. we can let the fbi investigators know that are looking into this. in addition to that we can let
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the federal prosecutors that may bring charges. we should note, no charges have been brought against michael cohen. it's not been stated this is something that is going to occur. but they would be able to tell those federal prosecutors, hey, here's some of the things we're picking up off this wire. >> a whole lot there, tom. and i want to bring michael avenatti into this conversation. because, sir, this is of course your first chance to react to this breaking news here on nbc. what do you expect that these conversations that have been captured in this wiretap could mean for your case? >> i don't think they're going to be positive for mr. cohen and i don't think they're going to be positive for mr. trump. and i think they very well may include substantial evidence to assist us in our case. here's what i think ultimately we're going to find out. i don't think we're going to find out this was confined just to e-mail or voice wiretaps. i think they also, my understanding is, they were also wiretapping text message communications for the weeks leading up to the fbi raids.
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i also think that ultimately it will be disclosed that during these wiretaps, the fbi learned of means by which michael cohen and others were going to potentially destroy evidence or documentation. once they have that information in hand, that is what served as the predicate or basis to get the warrants to search the home, the office and the hotel room of michael cohen. this is going to be ultimately i think what the domino sequence will be. i think that mr. trump and mr. cohen, upon this -- upon learning of this, are going to be very, very concerned to the extent that they were not concerned already. this is a very serious matter. i'm going to go back to what i've been saying for some time now. there's no question in my mind that michael cohen will be indicted for serious federal crimes relating to likely $130,000 payment and other
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things, and i think that this increases the chances of what i've said previously. i don't think this president is going to serve out his term. i just don't. >> mr. avenatti, i want to clarify, you said you understand that text message conversations were also included. is that a piece of information you've come into in the course of your work on this case or are you speculating? >> i'm not speculating, that's a fact. >> okay. and if, in fact, these -- i mean, we're reporting this has all been collected, do you expect you'll be able to see the contents of this communication or this will come to light in the course of your case? >> i think there's a likelihood that's going to happen. where you'll see it first come to light is in the action by the southern district of new york u.s. attorney's office in connection with whatever charges they bring at least initially or thereafter. against mr. cohen and others. but look, we also know that the president is not very disciplined and, in fact, we know he communicated with michael cohen not just before
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the fbi raids, but we know that he communicated with michael cohen after the fbi raids and we know that according to mr. giuliani, his instruction occurred only in the last few days. so to the extent that the president had communications with michael cohen about our lawsuit, which was filed in early march, or this situation, or other transactions that they were concerned about, concerned about there potential liability, those communications may very well now be on a recording in the possession of the fbi. i don't think the importance of this can be overstated. >> one other follow up just to what you said earlier quickly. you also said that you believed that some of these intercepted text messages showed that cohen intended to destroy evidence. is that something also you know to be a fact or are you suggesting that's a possibility? >> i didn't state it was the intercepted text messages. i said ultimately it will be shown that the intercepted communications, whether those be
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by text e-mail or verbal communications, serve as the basis for the warrants. in order to obtain three warrants of that magnitude against a sitting president's personal attorney, that's an incredibly high bar. that's one of the only ways that you can obtain something like that is if you showed exigent circumstance, an emergency almost whereby it was likely that the target was going to be destroying evidence and documents. i think ultimately it will be shown that these intercepted communications served at least in part, a substantial part, as a basis for those warrants. >> i just want to jump in on one quick thing. it's not to cast any doubt on the information that michael has. i want to be clear for our audien audience. this was not an exigent circumstance warrant. none of the warrants associated with this were done for exigent circumstances. >> tom, can you explain exigent circumstances. >> on the wiretap. >> yes. >> on the wiretap, but all the warrants, all warrants in this case, my understanding is based
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on several discussions with people that have knowledge of the matter, is that these warrants were something that were typed up and filed and the reason for executing the search warrant did not have to do with necessarily something that was perhaps imminent as it related to -- as it related to the destruction of documents. if this was an exigent circumstance warrant, the way that warrant would be, is if there was a threat to -- imminent threat to life, property, something along those lines that somebody would say, you know, we need to get up on this wiretap now. i'll give you an example. in a terrorism case, typically exigent circumstance warrant might be filed because there's an eminent threat to life or the possibility of another attack. in this circumstance, the warrant i don't believe is classified that way. i have a little bit of an understanding as to why the warrant came in when it did, but that's not something i'm ready to report at this point. that's not to suggest that michael's information is incorrect in that there was a possible concern here about the
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destruction of documents. i wouldn't say that that's wrong. >> and i just want to clarify, when i talk about exigent circumstances, i'm not talking about the warrant that led to the wiretap. which is what your report is. i'm talking about the subsequent warrants. the search warrants related to the home, the office and the hotel room. when i talk about exigent circumstance, i'm using that as a term of art as opposed to a term of science. meaning they would have had to have shown some concern relating to the likely destruction of documents in my mind in order to get the magistrate to sign off on something of that magnitude. >> in order to have that search. tom, thank you. john, i want to bring you in to the conversation as a former attorney, assistant attorney general. if you are sitting here looking at the facts of this case, you've got, you know, somebody who is serving, has served as the personal attorney to the president of the united states. what's going through your mind when you're asking for this kind of thing? >> yes, so let's look at big picture here, because there's been some confusion.
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what it looks like happened is that in the course of the mueller special counsel investigation, they uncovered evidence that there's criminal activity that's occurring that's outside the scope. >> right. >> so this is beyond my referral. >> mueller says to the southern district of new york, hey, we've got all this information, take a look. >> yes with one step removed. to the acting attorney general, rosenstein, my mandate is if i discover evidence that people are committing crimes, i'm not going to ignore it but i'm not going to follow every other crime. i'm giving it to you to make the decision. and then gets referred to the southern district of new york, a ledgendarily independent prosecutor's office. they decide yes, there's a lot to investigate. how do we know that? because in their filings, they said they've been investigating this for months. based on what they learned in the investigation, they then hit the high par of we're dealing with an attorney.
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when you investigate attorneys, you go -- >> it's privileged. >> because of attorney/client privilege, you go up to a higher standard where you're trying to look, was there any other means we can get this evidence that makes it the least likely i'm going to stumble into attorney/client privilege. based on analysis they decided to execute warrants. they did historical warrants on e-mail. if the reports are true for the wiretap that required not just a proval at the field office in the southern district of new york, but you got to get approval by the main justice career attorneys who have been there for something like 20, 30 years, who review these. it is painstaking process that most prosecutors will tell you they try to do that amount of paperwork, let alone the seriousness of it. it means that you weren't able to get that evidence by any other means. then they go and do a warrant on an attorney's office. the possibility would be if you thought that guy would be above board and respond, you would do
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it by subpoena or request, but they found evidence that led them to believe whatever crimes he was committing, he was likely to destroy, and this is where i think, it is likely they believed he would destroy evidence and there wasn't any other way to respond to getting this information other than search warrants approved by a judge. >> right so what does that possibility mean in the context of this reporting? and just to reset a little bit for our viewers. we've learned that federal investigators wiretapped the phone lines of michael cohen, the president's lawyer, and that one of the things that was intercepted was a call between cohen and the white house. >> right, it shows that the breadth of the information that they're able to gather from cohen. i mean, one of the things that giuliani has been kind of stamping out recently is this problem of who paid this $130,000 to stormy daniels. >> right. >> it's almost like he's doing that in a way to think that that's all there is here. and now we know trump did it, no more to see.
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actually there's more to see. that's why mueller's interested. anything that may come up in the course of this investigation as john knows well, when they refer it outside, anything that can come up in the course of it can be referred to robert mueller. a lot of the conversations and a lot of documents would have come up during the two decades that cohen's a personal attorney to the president, that's a lot of information he want, and they really want conversations, think this would lead to the wiretap, they want the details of the conversations now. conversations after these news reports have bubbled up about what cohen might have done to repress anything during the campaign, how he might have worked for the campaign while he was really just a personal attorney. all of that information can come up when they're able to get into those communications. whether that be text, e-mail or phone. i think this shows us how michael cohen is not just at the heart of the stormy daniels matter but he's at the heart of so much else. it's going to be really important to finding out what this president might have done that could be criminal. >> so does that potentially
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partly help -- could it possibly explain the story that maybe whatever strategy there may or may not have been behind the giuliani blitz of the media in the last 24 hours? >> right. clearly not a mistake. he's been on over and over again. >> right. >> he clearly, there was a strategy to go out and get ahead of this in a way trump previous legal teams have not been doing. he even used the word funneled. he funneled the money through the law firm. not a term i would think you want your lawyer to use often. >> suggests that everything is above board. >> they want to go ahead and show michael cohen they're not leaving him out here to dry. especially knowing that there could be a wiretap. that they've gotten all of this information. they know the amount of information in the legal exposure that michael cohen is able to bring on the president's case. they want to show him please don't flip, please don't cooperate, with investigators
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who might be talking to her in new york or eventually mueller. we have your back on this. we're going to take this thing off the table for you and just say it was trump behind it. >> danny, can i get you to weigh in on that? on the giuliani piece of this, and how all these pieces might fit together. do you see what giuliani's doing as to say there's nothing to see here in the terms of this stormy daniels payments, in the hopes that, as julia suggests, people may stop looking for additional pieces of evidence here? >> i think giuliani's approach, if we read what his objectives were last night and this morning, is to retreat into the only conceivable path that giuliani sees here, which is essentially concede, yes, there was a payment, that donald trump knew about it, but i assure you it had nothing to do with the campaign. he doesn't want to get into john edwards land. that is a bit of agambit.
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because remember, attorney's statements can be binding on client. giuliani's going off script, all that can eventually be held against him. against trump. you better believe the mueller team is looking closely at every word that came out of rudy's mouth. it's problematic. especially where it might be inconsistent with what his client said before and what trump's own attorneys have taken as their position. >> bob costa, i think you're with us on the phone, "washington post" reporter. we hear that you have just gotten off the phone with rudy giuliani. >> the former new york mayor who is now the president's lead attorney said he has not been informed about the wiretaps by the federal investigators. he said if it did happen, the president should have been notified. he shouted very unhappy when i read him the nbc news report. i could hear his voice change immediately from being kind of
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friendly to saying this is government misconduct if true. he says he is not fully aware of the details of this. he said he was about to call president trump to discuss the nbc news story. to figure out what's going on. he said that this could lead to a real evisceration, in his words, of attorney/client privilege, if an attorney was being wiretapped. so an angry reaction, defiant reaction from the former new york mayor. >> can i respond to that? >> yes, please. >> i find that incredibly ironic. i mean, this is rudy giuliani who served as the u.s. attorney for the southern district of new york for years during which i would dare to say there were thousands of wiretap applications made, thousands of wiretaps conducted, evidence procured, individuals charged, individuals conducted and sent to federal penitentiaries across the nation in response to evidence that mr. giuliani himself used by way of wiretap
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applications. i find it very ironic that now that he's serving as the right-hand lawyer for the president, he doesn't believe in wiretaps. of course he got angry on the phone. the reason is because he understands he has an undisciplined client in mr. trump and there's any number of things that may be found on those wiretaps or those recordings between mr. trump and mr. cohen. so they have every reason to be concerned at this point. >> can i jump in on that one? >> i'm sorry, give me one second, i want to get to julia ainsley first. >> i did want to hear -- obviously, reached out to the white house before we ran a story like this but they referred us out to giuliani. this is probably the rawest reaction we've gotten to this. i will say you can see why they would be upset because one thing that michael cohen has been fighting in court has been the attorney/client privilege of these documents that were seized. these been back and forth over that. to find out on top of that all of these communications were being listened to.
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that really would kind of put them back into a point that they're not able to protect and fight for that. >> you said earlier in the broadcast that the legal team had warned the president not to talk to cohen because this was a possibility. was that giuliani or another lawyer? >> i believe it was giuliani. and this was based on guidance that i think he was assuming at the time that he would be wiretapped because in order to get a subpoena like john said to go in and get all of this information that they were able to get during the raids, they may have also had the same bar to start wiretapping him as well. so he is saying please do not call. he warned the president against calling cohen. i think he's now getting, as he said, he never heard from the federal -- from the feds he was under wiretap. now he's really getting this in a more concrete way. he's obviously reacting to it. >> i cut you off, go ahead. >> if you look at building on what michael just said, if you look at michael's case in california, as the genesis in some way of all of the trump and
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cohen team problems, it's interesting that rudy giuliani's admissions tend to show that trump was actually more involved with that original contract and that he was directly a party. while that may -- i could see trump and cohen's team arguing that that's beneficial to their case against stormy daniels in california, on the whole, it's devastating to them in many other ways. that uncertain is what michael planned on. the collateral damage. to admit that trump was a party to this agreement might get him out of trouble in the california case, but the collateral damage, resulting wave, butterfly effect of that, would be cataclysmic, possibly ending his presidency. >> tom winter, i'm sorry, i think you were trying to jump in there to talk about what julia was focused on. >> i thought it was smart analysis by julia there. i would love to know how many times the former u.s. attorney for the southern district of new york rudy giuliani picked up a phone and called anybody,
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called a subject or a target of an investigation or actually more precisely to this particular thing that we're reporting today, the wiretap, how many times he picked up the phone and called the subject of a wiretap and said, want to give you the heads up, we've got a wiretap running and you should be aware of that. because i'm going to get the answer to that question is probably none. >> hold on one second, tom, can i just clarify one point, you know, with giuliani telling bob costa that the president should have been informed about this. obviously the president not the target per our reporting of this wiretapping although it's possible some of his communications was caught up in it. is there anybody that needs to legally be notified of a wiretap from a legal perspective, just kind of very clearly to lay it out for our viewers? >> the prosecutors need to know about it. obviously the agent that writes the affidavit supporting the wiretap and the judge needs to know about it. >> and that's it. okay. >> yes, wiretaps, i have to jump
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in, wiretaps are very difficult to get. we talked about that. they're considered a search under the fourth amendment. you have to -- the government has to demonstrate that not every single other method has been tried or would be unsuccessful. but that traditional means would be unsuccessful. and even, i'm not saying that is the case here, that they might be dangerous. but ultimately, i'm not saying that's the case in this situation, but ultimately, title 3 wiretaps if you talk to any special agent, it's something they don't particularly love applying for. so that gives you an idea of the degree of evidence they had to have in a case like this. >> hey, bob, if you're still with us on the phone, i'd like you to get to weigh in here on a little bit of this conversation we're having, particularly julia's reporting here that it was rudy giuliani who may have told the president, hey, maybe don't make any phone calls to michael cohen because of potential for wiretap? >> i did, last night and today,
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because that's a big vulnerability, talking to cohen. whether it's been wiretapped order not. there are legal implications. giuliani, the former new york mayor, told me just a few minutes ago, michael cohen has not been talking with the president. it is important as a resulter that sometimes not everyone around president trump is aware of everything president trump is doing. so when i was talking to giuliani, he said he's not aware of no conversation since he joined the team. >> interesting. fair enough. what do you make of that? >> i think there are things that people can say publicly and things people can say behind the scenes but i think that -- i mean, i know from our reporting that there have been strong warnings to the president not to talk to michael cohen. also strong warnings michael cohen may not be as loyal to the president. and a lot of this has come from juliany's experience knowing how
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hard these investigating can be. they can work somebody over. they can flip on them. also knowing michael cohen is someone who might speak openly and candidly with the president. that's something giuliani would want to curtail. >> can i respond to that briefly? i think part of the problem here, part of what makes it so frightening for mr. trump and rudy giuliani is the following. you have michael cohen who i don't think there's any dispute is really not that bright. you have michael cohen who has shown a sloppiness that relates to the way he handles things and the legal work or whatever work he generally performed for the president. then you have the fact he's under surveillance, which makes him, to use my term, radioact e radioactive. you put all that in a pot together, and you stir it up, and you look at what the last three months may have yielded as relates to information for the fbi in the southern district of new york by way of these wiretaps, and that could, in fact, result in an extremely
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damaging picture for the president. >> let's bring in msnbc host hugh hewitt, who is also with us. can you weigh in? >> sure, i want to dial it back a little bit because the assumptions running around the panel are this has to do with michael's case. it might be the plumber in the library using the candlestick. we don't know why this wiretap was issued by the south -- southern district of new york. there are 1400 wiretap ace year in federal courts. if they were issued to a lawyer, that's a slightly higher bar and was referenced earlier. if this came in three or four weeks ago, people caught up in that wiretap may not only include the president, might include someone from the white house. it could include a number of reporters talking to michael cohen. it could include any number of people, all having nothing to do with michael's case. it could be something completely discrete, set apart and have absolutely nothing to do with this. and so i just want to dial it back. i'm probably the only one in the
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panel who worked at the department of justice. everybody at doj takes their responsibility very seriously. >> i do want -- hugh hewitt, we have a large group with us, including somebody who has also worked at the department of justice. >> okay. >> i'm sorry, go ahead, i'll let you finish your thought. >> we take it very, very seriously. they're not going to go get a warrant because they'd like to listen in on the president. they're not going to get a warrant because they're interested in salacious gossip. it has to do to a specific case for which there was probable cause and they will put aside anything unrelated to that case. i think rosenstein spoke to that at the museum the other day. >> mr. cohen, i think that's right, the process that's involved here is one where you do something called minimaization. there's procedures you apply before you're able to get the wiretap in the first instance. we've talked about those from judges to extra layers of review, both by prosecutors locally and another level of
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prosecutors in order to get the warrant. but then there's a concept of minimaizati minimaization, which is you're not supposed to record or use against someone, comments that they may, that you pick up on a wiretap, that are not linked to the crime you're investigating. similarly, if you hear someone begin a conversation with, say, an attorney that's not linked to the crime your investigating, is turn the recorder up. then you have to report regularly to the judge, what you've been receiving is productive from the wiretap. you produce a report, and whether or not you've been able to minimize it. i think the thing, if this is true, that there was a wiretap that we know would be that michael cohen was suspected of committing some type of significant criminal activity. we know from court filings that might not have anything to do with the president or the white house. because in earlier court filings, the prosecutor said the vast majority of what they've
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already seen from e-mail and other methods was not linked to any role he played as an attorney. >> i want to reset here our conversation. the n it is now 1:31. we are reporting here on msnbc an nbc news exclusive, that federal investigators have rear tapped the phone lines of the president's longtime lawyer. it is not clear how long this wiretap has been authorized. but we have learned it was in place leading up to the raids on cohen's offices hotel room and home early last month. nbc news also reporting that at least one phone call between a phone line associated with cohen and the white house was intercepted. bob costa of "the washington post" i think is still on the line with us. he had a conversation with the president's attorney rudy giuliani. got initial reaction there. and bob, one question i've been wanting to put to you just as we kind of unpack all of this here, is that of -- does the white
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house -- are they operating under the assumption that michael cohen is cooperating with federal investigators, or have they not reached that point yet? >> is that for me, kacie? >> yes. >> the white house's view is different than the president and his personal legal teams. they're kind of separate islands. you have emmitt flood and don mcgahn now in the white house. they're dealing with mueller. the president's personal legal team seems to have a good relationship with steve ryan who is michael cohen's attorney, decent relationships with other witnesses and people involved. of course there are clues in the broader trump universe that the relationship is fraying when you see different tabloids going after cohen, tabloids that are close with president trump. but at this point, there's kind of a dance going on between the cohen side and the trump side. it's just like with the trump doctor in a sense. people who are so close to the president for so long, there's
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not an urge to rush out of these relationships and to maybe risk putting something out there, provoking someone to act in a certain way. >> i think you're probably referring to that national inquirer cover that seemed to suggest that cohen was on the outs. of course that paper published by a close friend of the president's. one thing giuliani told bob costa in their conversation was that he was very angry that the president should have been notified about this. this suggests that they're planning to take the same tact and response in responding that we've seen, which is to essentially cast doubt on the legitimacy of perhaps not just the investigation but the entire justice system kind of as we know it. i mean, how are conservatives going to respond to that? do you think that's dangerous? >> well, a lot of conservatives are on record from 1998, kacie, that lying under oath is impeachable offense. goes back to the clinton impeachment. you look at people like lindsey graham under the impeachment
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prosecutors in the senate. they argued which was based on breaching your oath to testify truthfully, that's a big deal. so they really don't want the president to go under oath before a grand jury. the only way i make sense of all of the events, including multiple giuliani interviews with robert costa, on fox and friends last night with sean hannity, is it's part of the strategy to lay out the reason, the argument, why the president would reject any subpoena from a grand jury, and rudy said last night, no written responses, at most, two to three hours, then he retracted. i think they want to keep the president from being under oath, under questioning for mr. mueller and his team, because that is the quicksand into which impeachable offenses come out of. if you sacrifice a pawn, that's no big deal. michael's case is no big deal compared to an impeachment offense that rises to that level. >> michael ava naty, can i get you to weigh in here, as we reset, because we have of course
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been talking so much about what giuliani has had to say about payments to your client and what unfolds next. based on new information from this report, what's your next move in that case? >> well, there's been a lot of information to come down the pike in the last 18 hours. >> just a little bit. >> and we're going to be incredibly -- yes, the pace of this is rather staggering. we're not going to be reactionary. we're going to be thoughtful and methodical and smart about the way we approach this. i think we've done this over last two months. i will say this, i think our case has gotten exponentially better over last 24 hours. i think that mr. giuliani's statements clearly are at odds with a number of things that have been said in the past. it's clear to us that the american people were lied to by the president on air force one and there's been a number of other statements that are inconsistent with those. you know, again, i'm going to go back to what i said. i do not think this is going to bode well for the future for michael cohen or for mr. trump.
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i think the amount of evidence that was obtained by the use of three search warrants as well as the warrants on the electronic communications and the telephone ultimately are going to be very fruitful for criminal investigators and also likely for us. this is not going to end well. >> tom winter, can i get you to weigh in also on one of the questions here that i have as we're sitting here trying to unpack all of of this. robert mueller obviously sent this michael cohen information to the southern district of new york because it was outside of the purview of his investigation. doj goes up there. this wiretap was under that authority, is that right? >> right. before john laid it out very well as to how we get to a point that federal prosecutors in the fbi here in new york got involved in this case. this wiretap, this e-mail surveillance, the search warrant, everything we've seen so far in this case has to do
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specifically with the southern district of new york, federal prosecutors in manhattan. this is not something where robert mueller ordered up this wiretap. this is something based off the federal criminal investigation. the federal criminal investigation into the personal attorney for donald trump who is of course michael cohen. in addition to that, i've reported, my colleagues have reported here right from the beginning, this is an investigation that is done in coordination with the special counsel's office. in other word this wasn't robert mueller saying, hey, here you go, you guys look into this, and anyway, it's been great, and we'll give it a call if we find anything else. this is not just a strict handoff, on the other hand, if this is something that doesn't have anything to do with special counsel mueller's investigation, but there are criminal acts that have been found here, and there
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is a path to a prosecution, that would be something that would be prosecuted by federal prosecutors in the southern district of new york. that's not someone on robert mueller's team. this is around robert mueller's staff, there's obviously relationships between the offices, just personal riches, as far as former colleagues go, so i think this idea there's some sort of wall up between the two, that's not really how the case is going. >> so if there were information obtained through these wiretaps that was relevant to robert mueller's investigation, does that come back around? >> absolutely. that's absolutely the case, if there was information that came up that is germane to robert mueller's focus, that that information would be related to mueller's team and they can go down their cooperative path along those lines. this is the second example,
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known example, anyway, where there's been an instance where mueller's staff has been tasked with. this happened with manafort, the story we broke here at nbc news where there was some allegations where he may be involved with some sort of quid pro quo, possible quid pro quo with the former adviser to president trump and the ceo of the bank of chicago, as far as getting the position, in exchange to loans. i didn't say the word russia once. so that's something that is referred to the southern district of new york. should something come up there that has to do with the russian interference in the 2016 election. the same circumstance would happen there. i've been told that would alert robert mueller's staff. that's kind of how this is all playing out.
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those are the mechanics of it, if you will. >> i want to weigh in on another piece of why this could be giving under the president's skin. if you look at the time line of this, first, it seems that they -- even before they had to do the search warrants, they had enough evidence on cohen to go ahead and apply for this. and they got it. and it's a very high bar, as we've laid out. there's just so much lead here, there's a phone call that's been listened to between the white house and cohen's line. the idea that the president can now no longer reach out to cohen really puts them in a position where he wasn't able to keep control over here and that's the biggest threat to the president now. >> he can't communicate with him at all so he can't say, hey, i'm going to make x threat or urge you to do y thing. >> when he went out and said plead the fifth. is the president able to communicate at all now. it seems from the advice he's
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been given from his lawyers, especially now that phone call, he's going to have to completely curtail that communication, which can be scary when you have someone out there who has that information on you who could be in a position to cooperate with investigators. it leads the president on a much more -- >> can i respond to that briefly? >> yes, please, go ahead. i agree with those statements entirely. i think that's why you saw approximately 10 or 11 days ago, the president send two tweets on a saturday or sunday that were directed i think directly to michael cohen. it was meant for an audience of one. and it suggested that the president had michael cohen's back. that michael cohen was a good family man. and he was trying to show support to michael cohen through that medium as a way of showing up hopefully in his mind michael cohen's support and with the hope that he ultimately would not turn state's evidence or flip on the president. and then last weekend, you see the report in the national
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inquirier, which is a known media outlet with very close ties to the president, whereby the white house in my view began a character assassination on michael cohen and his credibility in an attempt to undermine him. so now what you have is, because the president cannot communicate directly with michael cohen or has been advised not to, they're using alternative means in order to engage in messaging in michael cohen. >> i want to follow up on, you said you knew for a fact that text messages were tapped. do you also know for a fact that phone lines and e-mails were tapped as well? any other modes of communication we should know about? >> i know that e-mails were. i was not aware of the phone line tapping until the report by nbc moments ago. >> ago, and tom winter can you just clarify for our viewers what our report says about what modes of communication were tapped? >> so based on our reporting, either between public filings that have been made in court or
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information that we've developed based open folks that i've spoken with and juliette has spoken with, the information is that phone lines, plural, belonging to michael cohen, were wiretapped in the weeks leading up to the search warrant that occurred several weeks ago. so now we're going back probably about a month and change, but the phone lines belonging to michael cohen, there was a lawful -- lawful warrant to wiretap those phones. in addition to that, at least one phone call that was made between one of the phone lines belonging to michael cohen was connected with the white house. basically there was a phone call between the white house and one of the phone lines associated with michael cohen and that phone call was listened in to as part of that lawful search warrant. that's essentially our reporting. >> can i ask a question? >> yes, go ahead. >> it's hugh, i got a quick question for michael. michael have you talked to michael cohen or communicated with him in any sort of way over the last five or six weeks because i want to know if you're
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caught up in this net too. >> have i had any direct communications with michael cohen? >> yes. >> no, i haven't had any direct commune cakeses with michael cohen, absent me running into michael cohen in a restaurant in midtown manhattan about seven weeks ago and we had a rather strained exchange, but other than that, no, there's been no orl communications or by text message, e-mail or telephone call. >> okay. >> because right now everyone in the world who talked to michael cohen is asking, i wonder who's been listening to my conversation. >> well, and you're absolutely right, and that's why i described a few weeks ago, i described michael cohen as being radioacti radioactive. i used that term consistently. anyone who had any dealings with him. not only for the e-mails or text messages. that not only took place recently, but also may have been in his possession at the time of those fbi raids. i count -- by my count, they
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seized approximately 16 cell phones including two black buries from his resident, office and homes, and it appears when he would switch out cell phone, he would keep his old phones, presumably did not erase them. that's going to be a treasure trove for investigators. >> i've got to jump in real quick on this -- >> yes, okay. >> we can't lose this. john laid it out perfectly. just because you had a phone call with michael cohen some time in the last six weeks, however long this has been going on, doesn't necessarily mean that your phone call has been recorded throughout or that it was listened into through the entirety of it. there was minimaization that comes into play. i want to make sure folks just don't think there's some sort of blanket broadcast going on. important to note that. >> we also don't know the full extent of what was being investigated by way of this phone tap. we don't know the support of the
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investigation. if it was confined to information about the $130,000 payment. or if it related to a whole host of other transactions, business accounts and the like. >> one point you made, you said 16 cell phones seized from cohen's property. what else do you know about what was seized in that raid that might be applicable here, were there computers, you know, anything else that would add to kind of our collective knowledge of what unfolded? >> my understanding is the following was seized. approximately ten banker boxes of hard copy documents. approximately 16 cell phones including blackberries. there was at least one or two ipads as i recall. there was some computers that were also imaged. there was a significant amount of electronic information that was forensically images by the fbi and now is in their
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possession in connection with the investigation. that's my understanding of the totality of the information that was seized from the office, hotel room and evidence. >> julia ainsley, can i just get you to weigh in on that? >> yes. i think the other piece of this, we saw this laid out what the government sent to the court last week when there was this whole debate about what materials they could use. they said it was not just -- they mentioned the other clients that could be swept up in this. it wasn't just trump, it was trump organization and sean hannity. sean hannity aside, i'm not sure the wiretap, i'm not even going to go there. but it's also trump organization. that is a red line with the president. he really draws a line when it comes to his businesses and his family and his family businesses. >> such a good point. >> if they are able to get any kind of information about the legal work or any kind of work that cohen was doing at that time on trump organization, whether or not it was loans they were trying to make good on with
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foreign entities. whether or not that was influencing white house policy. that's at the heart of what we're trying to figure out in washington, it's at the heart of what mueller's trying to know. that information would be at the highest desire for the mueller investigation and something that trump would not want out. >> right, and one thing we haven't touched on but is included in the story on n nbcnews.c nbcnews.com, from you and our colleagues, is the interest in the "access hollywood" tape in 2005. how does that fit into this? >> it's the idea that cohen was someone who suppressed stories. that was out to squash anything that would bring up nefarious acts by the president, presumably the sexual nature, and it would be the whole reason that giuliani laid out last night he would have made that $130,000 payment so close to the election, and if he was in the business of trying to get that "access hollywood" tape that was recorded in 2005, but if he was in the business of trying to suppress that right before the election, it shows that cohen wasn't just a personal lawyer,
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he's someone in a way working on behalf of the campaign and then you get into some real legal problems of is he actually making a campaign loan when he pays that $130,000, even if it didn't
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what's caught up in a title 3 wiretap, you have to talk about minimization and whether that's followed. by the way, if agents do not follow minimization procedures, that could be the basis for a motion to suppress. >> minimization, when you say that, you essentially mean going through the information that's collected and making sure to minimize things that aren't relevant to your investigation. >> well, no. a fisa warrant involves taking all of those data, communications, and storing them. federal wiretaps are different. they are requiring when they are listening as the conversation is going on to turn it off once they determine that the subject matter is irrelevant. the challenge here is what's irrelevant. >> i want to make sure we're
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very clear with all of our viewers on our legal terms. joining me, lawrence tribe, constitutional professor at harvard law school. he's been writing about the threshold the fbi could have to meet to get a wiretap on michael cohen. mr. tribe, can you please expand here on this feet? what tweet? >> my view is based really not only on recent events but on the underlying supreme court decision that the power of the government under the fourth amendment leading to title 3 wiretaps. i was actually clerking for justice stewart at the time the court wrote that opinion in 1967. katz v. u.s. from the very beginning, the court was clear that to protect privacy and avoid overly broad intrusions through wiretaps, the
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procedures have to be followed to minimize the irrelevance or extraneous conversations that are overheard, and to make sure that the overhearing process targets specifically information that could be relevant to the criminal probe. when giuliani, for example, says that they would have had to see notifications to the president if the conversations included ones with him, that's simply not the law. the law does not require notifying people and therefore blowing the cover of a wiretap. what it does require is a very strong showing of need to use the wiretap procedure, very care ful narrowing of the conversation and the procedure is to minimize any privacy and the use of that information. there is every reason to believe
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that the southern district of new york has followed all of those procedures. and from all we know, there has been no violation of anyone's rights. what we need to do is wait and see what was intercepted and how is it going to be used. >> could i follow up to -- >> yes, please. >> excellent. it just occurred to me that not only is it not common practice -- in fact, it is unheard of -- for a u.s. attorney or assistant u.s. attorney to notify individuals that may be recorded on wiretaps. but it is actually illegal to do so because it could be perceived as potential obstruction of justice or interfering with an ongoing criminal investigation. in fact, there have been instances where individuals within -- rogue agents or rogue officers within law enforcement have tipped off -- exactly -- tipped off targets or others that might be recorded on wiretaps to tell them that in
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fact a wiretap is in place so be careful who you talk to. and those individuals have been criminally prosecuted for doing that. so what mr. giuliani is suggesting that the president should have been told about it, had he been told about it, that would have been entirely inappropriate and in fact might have given rise to criminal prosecution of the individual that tipped him off. i'm sure the other members of the panel can disagree with me if i'm wrong about that. >> julie ainsley, i want to center up on why are we having this conversation. it is because of the political implications of all of this. why is rudy giuliani arguing the president should have been told. you i think touch on this point earlier, this idea that they are essentially trying to undermine and say -- argue that the legal system acted unfairly, whereas right now we have no evidence here that that's the case. >> right. i mean they're trying to -- it is the same argument they had after the race, that there were things that were taken that should have been protected under
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attorney-client privilege. it is the same argument that they are using to try to keep the president from testifying on a lot of things because it is executive privilege. they are trying to protect a lot of information, and in this case a wiretap will worry them, especially about any communication that may have been around their reaction, around the reaction to the news stories that were coming out about michael cohen, anything about the trump organization. there's such a wide amount of information you can get from listening to someone's phone calls, looking at their text messages, looking at their e-mails. so they are worried about that. then the other big thing that this story does just beyond politically, it shows us the level of this investigation, it shows how much evidence federal prosecutors had on michael cohen in order to get that wiretapping warrant. >> tom, we are coming to the end of our hour so i want to make sure i give you a chance to kind of give our viewers -- is there anything we haven't touched on in the last hour with your reporting or the story that you think is really important for people to keep in mind?
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>> i think the highlights are this. the ability to get a search warrant for an attorney. there is a very, very high bar from that. we know from public court filings, to be able to look at e-mails and conduct surveillance on e-mails is an incredibly high bar. . may be even more of a high bar, and it is a higher bar, to be able to get a judge to approve a wiretap of any individual, let alone an attorney. we want to let folks know that this is a stringent process. there's been a lot of discussion about surveillance, about fisa, about whose tower was wiretapped or recorded, or whatever it may be. a lot of it's been hyperbole. a lot of it's been very political. this is not that. this is a very serious law enforcement investigation. a federal criminal investigation into the president's personal attorney. these things are not taken lightly by the people that are conducting the investigation based on conversations i have had, both on this particular matter and on cases in the past. a addition to that, these are
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things that the judge takes very seriously. a judge is not going to put their name on this and write their name down and approve a warrant if they don't believe that this is something that has been lawfully sought and is something that is within the guidelines of the laws of the united states. while there may be a lot of political ramifications, while people are going to say a lot of things about this, presumably the president's attorneys are going to say a lot of things about this. presumably the president himself may say a lot of things about this. at the end of the day, this is a lawful process that happens often in the united states. and it is something that there is a high bar to get to. so we know now that there was enough evidence and enough probable cause that led federal investigators to be able to say to a judge, hey, we have a reason to believe, likely there is an ongoing crime that's being committed here, that any sort of effort short of wiretapping these phones is something that either we cannot do or we've already exhausted, and we're going to get approval to do so. so i think those are kind of the
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key take-aways here that we need to take in mind. >> i think that's an incredibly important set of points and a very sober outline of what's important here. thank you. thanks to julia for your great reporting. michael avenatti, before we hand off to our next hour here, have you spoke to your client, stephanie clifford, stormy daniels, about this yet? >> i haven't had an opportunity to speak with her about this but we certainly spoke earlier today about the developments over the last 12 hours. i think with each passing day or half-day she feels more vindicated in her position and more empowered to see this through to thend and ensure that the american people learn all of the facts and see all of the evidence relating to this. i just want to follow up on what you said. i think the comments that were just made -- i don't know anyone that could provide a summary better or a current state of how important this is and the fact that very stringent requirements were met in connection with the warrants. this is not politics. this is law enforcement.
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>> michael avenatti, thank you very much. thanks for all of the many members of our panel here today for hanging out with us for this hour and all of this breaking news. again, great reporting, my colleague julia ainsley. steve kornacki takes over now. to refresh everybody now, it is 11:00 a.m. on the west coast, 2:00 p.m. in washington. here is where we are as we continue with this breaking news kompl coverage. in a half-an-hour, sarah sanders sarah sanders with a press briefing expected to gin in about half-an-hour. nbc news has learned exclusively federal investigators tapped the phone lines of the president's long time lawyer michael cohen. it is unclear just how long michael cohen was under surveillance or when that surveillance began. what we do know is that the wiretap was in place weeks before the fbi raid on cohen's

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