August 9, 2022

Read a transcript of the segment below.

ANDERSON COOPER: Joining us now, former Federal Judge Nancy Gertner. She's currently a Senior Lecturer at Harvard Law School.

Judge Gertner, great to have you on again. I understand you reviewed search warrants as part of your duties while on the Federal bench. Can you just walk us through what standard has to be met and how that may undermine some of the accusations out there from the former President and his allies flying around today?

NANCY GERTNER, FORMER FEDERAL JUDGE: Well, there has to be a sworn document and if someone lies in the document, and there will be consequences for lying, for false statements. So the agent has to come and give you what affidavits, sometimes there could be sworn testimony, but usually it's an affidavit. And the affidavit will say "I have probable cause to believe that a crime has been committed. And that evidence of that crime will be found in the place that I want to search."

And then he has to show or she has to show, describe the place to be searched and the evidence to be seized. And the code word in the law is with particularity. So they can't say hey, something is wrong that is going on at Mar-a-Lago. I want to go in.

They have to describe what the crimes are that they think have taken place and they have to describe, you know, that the crimes have taken place there, and they have to describe what they're searching for and the place to be searched and the things to be seized with some specificity.

Now, a Judge relies on what the agents tell them. And you know, as we've seen in the Breonna Taylor case, the agents may not necessarily be telling the truth, but, frankly, in a case like this with the levels of review and the likely level of a Garland review, I imagine that every I has been dotted and T crossed.

COOPER: You would think that Merrick Garland himself would have looked at the application for the search warrant.

GERTNER: Not only do I think that just because it's the President involved, but from my understanding from people who are working for Garland, and from what I know of him, he's a micromanager. I mean, some of the frustration with the pace of investigations are precisely because he is a micromanager.

So it would be inconceivable that he didn't sign off on this search warrant, this affidavit, and this decision.

COOPER: And how strong a case would have had to be made to this Judge in order to get the Judge to agree?

GERTNER: Well, the Judge is just making -- the Judge has to understand that a crime -- that they're investigating a crime, right? It's not just ordinary misconduct. And here, the likely crime is the President's violations of the Presidential Records Act and inappropriate handling or retention of classified documents. So you have to know that a crime has taken place. It's not some, you know, just itinerant misconduct. And the Judge would have to know that there have to be seeing the evidence of the probable cause to believe that a crime has taken place. What would the probable cause look like? And I'm just speculating, as we all are, right? So if the National Archives got classified document, they have page seven to page nine, and they're missing eight. On their face, the documents would make it clear that something is missing.

Then there's a story which I imagine would be in the affidavit of the FBI visit to Mar-a-Lago in June, this past June, in which they saw where the documents are kept. And the question is, did they see something at that time that made it clear that what was in there was more than just an occasional memento from Kim Jong-un and something more substantial than that.

So the Judge has to look at the evidence that's given to him to see if there was probable cause to believe that a crime had been committed. So, that's what I mean.

Obviously, you rely on the information you're given. You rely on the good faith of the people giving you the information.

COOPER: Is the warrant a sign that that a case was made, documents were at risk of being destroyed?

GERTNER: Well, that's very -- that's very interesting. I mean, clearly there could have been a subpoena to a grand jury. And where you send the subpoena to Trump, to Trump's lawyers, and you really rely and you trust them to turn over everything.

Clearly, and again, I'm speculating, something happened here that led the agents and the DOJ to believe that in the ordinary course, documents were not going to be turned over. And that therefore they had to take the step of a search warrant.

Now, they really don't have to justify going to a search warrant. Right? There's no legal justification you could send to have -- you can use a search in place of a subpoena. But I'm assuming that to take this step, there had to be some reason to believe that documents were not being preserved, or that they were not being truthful.

Let me just add one thing, because this is driving me nuts. This is not in my lane as a Federal Judge, but the notion that the DOJ, that the White House would have been involved in this makes no sense. This was a week that the Democrats were doing a victory lap and the last thing they wanted to do was to have the coverage taken over by the search of Mar-a-Lago. And that alone suggests to me that this had been an independent decision of the DOJ and an independent decision of Garland.

COOPER: Judge Nancy Gertner, really fascinating. I appreciate it.