0 i'm sandra smith. >> mike: i'm mike >> martha: good afternoon, everybody. our continuing coverage of the breaking news story both on capitol hill and out of the mar-a-largo situation. the deadline has now arrived. it is 3:00 p.m. for the former president to contest the court in the release of the warrant that was involved in the raid of his florida home. fox news has just reviewed the warrant along with the property receipt. we're going through all of this. you've heard some of it over the course of the last several minutes. there were 20 boxes of items that were removed. some of them were labelled "top secret." binders, photos, handwritten notes also seized. we'll go through the list. the president's former chief of staff, mick mulvaney, bret baier, congressman jim banks and victor davis hanson are all on deck to weigh-in on what is going on right now with this investigation. a lot of questions. first, to david spunt joining us with the latest as he learns it from there. hi, david. >> hi, martha. the last hour or so, fox news has reviewed this warrant and property list. it's like a receipt based on what the fbi took from mar-a-largo. we're waiting for this warrant to drop on the court's page meaning the judge has agreed to it. judge bruce rinehart. i want to get to the meat of what was taken from mar-a-largo. we're told four sets of top secret documents, three sets of secret documents, three sets of confidential documents, an executive grant issued to roger stone and an unspecified binders and photos. we're told a leather bound box of documents. also we're told, martha, in the 20 boxes, according to this search warrant that was reviewed, the locations to be searched include the 45 office, all storage rooms and all other areas within the premise used or available to be used by the former president and his staff in which documents could be stored. so this is what we're getting from the actual search warrant. as bret baier said in the last hour, we want so see what's in the affidavit. that's the next big ticket. that should have more substantial information there. i was at the news conference yesterday with attorney general merrick garland. that was significant in the fact that he spoke about an on going investigation. obviously circumstances here are different in this case. he felt the public interest was strong. i spoke to people at the justice department. they said that he was weighing all week whether or not to say something. i asked about this affidavit. will we see the affidavit? will he say something? you know merrick garland and he plays by the book. there's not been a filing for the affidavit. that would have more detail. but still we're learning a lot. >> martha: indeed we are. more to uncover here. thanks, david spunt at the justice department. with that, we bring in former u.s. attorney brett toll man. good to have you here today. you had a chance to see what they took out of mar-a-largo. what is your action on this? >> there's three choices for merrick garland. they wanted the information sooner than they were allowed by trump and his lawyers or they had some political agenda or the third option is you raid that home because you have fear of destruction of evidence or that there may be violent individual that you need to use that sort of show of force. the thing is, we still don't know to this day, we don't know why a former president of the united states is subjected to a technique and a strategy that was outside the bounds of what we have seen historically by the department of justice. >> martha: that's absolutely right. we don't know. as we said many times, we don't have this affidavit, which would give us more meat on the bones in terms of why the judge approved this. when you look at this list, you've got executive grant of clemency for roger stone jr. information, the president of france. leather bound documents. why would they be taking binders of photos from the house? why would you take those? >> it all depends on the four corners of the affidavit. in essence, what they represented, they were going -- they were needing to take from the home if they observed it. now, under the plane site doctrine, if they saw evidence of something that they believed was criminal while searching, they can grab that. that doesn't seem to be what's going on here. what this appears to be is a very broad and general affidavit in support of seizing documents that they believed were inappropriately in the custody of the president. i kind of -- i back away from this and think this is the former president of the united states who has the highest clearance, has the ability to designation something as classified or to unclassify something and they also have an area in the home that they can have to review classified materials. so none of that adds up to where we are now. >> martha: none of it does. what about the fact that the judge gave them until august 19 on this warrant? and they took several days before they actually acted on the warrant. what does that tell you about the urgency, the pressing nature? i think the bar has to be a national security concern. if that is what would drive this kind of action, i can't really think of anything short of that that would drive this action. wouldn't you need to do it right away? >> yeah, the sense of urgency i've represented, national security cases before both as a prosecutor and defense attorney. when it involves something that is highly sensitive and there's urgency behind it, it happens quickly. it did not happen now. the reason for it is as i think they were wringing their hands over the political side of this. they made a judgment call and did so because i think they needed to have the optics -- or they believed that they needed the optics that we've seen at mar-a-largo. >> martha: bret, if you can stand by. we're continuing to follow all this. we want to have you with us to continue to do that. i want to bring in another guest as we do that, cash patel, former chief of staff at the department of defense and now a media and technology board members. thanks for being here, cash. i want to get into this issue of classifying and declassifying the information with you. first, i want your reaction to what's been revealed so far on this receipt of what was gathered at the home. >> hi, martha. great to be with you. a former national security prosecutor returned receipts, there's a distinction between criminal cases and national security cases. those are two separate divisions. the fact that these sort of things -- >> martha: i think we lost him. kash patel, we'll work on getting him back. he's making a good point here, bret. glad you're still with us. two different categories. you have criminal and national security. so what category based on what we've seen play out here do you think this was part of? >> well, it is a good point. i have also seen both sides when the department of justice decides to treat one as a national security case and another as criminal. and what is interesting is typically when you're dealing with a national security case, it's urgent and you don't have to jump through some of the hoops that you would need to on the criminal side and you can get to the documents and then you can later make a decision on the criminal side. here we don't have a clear perspective on what they are alleging the president has done wrong, whether it is an infraction surrounding his obligations on national security or is this criminal behavior. when you use a swat team-like response, you're typically revealing that you're treating it as a criminal case. >> martha: one of the many big questions that is not filled in here is what happened between the subpoena being issued and the original boxes being taken and what we're told is a collegial interaction and when the raid happened monday morning. we don't have a good sense yet of whether or not there was back and forth communication. is it your sense that the trump side knew that there were specific things that they wanted to come back for and were denied that opportunity? because that's not the indication that we're getting from the trump side at all. >> yeah, i will tell you that standard procedure for the department of justice and historical treatment is to do just as you outlined. it's to reach out, to engage them, especially when it's a individual that held a position in the government that required that they had a clearance, a security clearance. we have the former president of the united states. there's got to be discussions between the department of justice from the national archives or whoever believes that there may be documents in their possession and what could have been a discussion a and an identification of what needed to be returned. instead turns in to something that you start to feel like the left is trying to capitalize as a narrative filler that helps their position. >> martha: you would think with the deep division that has happened in this country since the russia collusion situation, that they would be wanting to deal with this situation in the most careful way possible. and if that was not possible as merrick garland told us yesterday, it better be an enormous smoking gun. an issue so imperative that there was no other option, which is what he told us yesterday. but we don't have anything to back that up quite yet. stay with me for a moment, bret. if i can ask you to do that. we want to bring kash back in. when we lost you, you talked about whether or not this is part of a criminal investigation or national security imperative that drove this raid. can you continue on that thought? >> yeah, sorry about that. a distinction between national security. this looks like it's going on according to a national security investigation, which takes it out of the criminal division and goes into the national security division. the receipts that are becoming a available show vague descriptions of things because is government will likely say some of this stuff was classified. it doesn't seem to be the case when donald trump issued sweeping declassification orders on multiple occasions as president on multiple times. so that's a distinction that we need to watch for. it's incumbent on the government, the doj, to tell us what happened. >> martha: you touched on something i want to dig in with you, which is the declassification process. what your position was at the time and whether or not you were involved because we know there's a procedure that has to take place. the president can't just sort of wave over a bunch of boxes and say this is declassified. with you take us through the process where these documents were declassified by this president? >> yeah, the normal process -- there's multiple occasions i was serving as deputy director of national intelligence. if we needed to declassify through the normal chain of command for lower level employees, we would have to go through a rigorous process procedurally. the president of the united states hasn't always been the classification authority to classify and declassify. if he says something is declassified, that's it. it's declassified. he issued a strong statement to classify all russian gate and all hillary clinton documents. at the end of his administration, he thought so much more information needed to be declassified, he declassified sets of documents that should have come out. the gsa has come out and said they mistakingly packed some boxes and moved them to mar-a-largo. that's not on the president. that's on the national archives to sort that material out. they cannot prosecute him for in -- even if it was classified, which i probably wasn't, they'll never meet the burden of intent because the president didn't pack it up and take it himself. the gsa said they did it and made a mistake. that should have been really the end of it. should have been a court subpoena where they said okay, we need this and we'll get the rest back to you. president obama and president clinton still have classified materials in their possessions in their homes that they haven't released to this day per the national archives. >> martha: so are you saying that these particular documents that were at mar-a-largo were all declassified in that december-january period of what year? >> i'm saying -- the end of 2020 and early 2021 before the president left. whole sets of documents were -- john what was shipped down there. i wasn't the gsa people moving the documents. only they do. they packed them. they admitted that they packeded them and transported them and stored them somewhere. the gsa can provide more clarity on to us on how and what was moved and the gsa could have worked with the department of justice. that would have been my move as a national security operator. this is an extreme national security measure taken for what seems to be a wholly unnecessary national security approach. >> martha: all right. you're saying the gsa packed the boxes. they already admitted that they sent some of them there in error. so when in june when they went in with a subpoena and they collected the boxes, apparently then, according to one line of this story, somebody said no, there's more here and you need to come back for what is here because it shouldn't be here. do you think that is what happened? the secret service individual was involved in that as one of the story lines that we're pursuing. >> yeah, i don't know who that individual is. i think it was clear from president trump's statement that i believe he put out on truth social that he invited whoever was there in june or whatever date to look and have whatever they want and impair phrasing to see whatever they needed. if that was the case, which seems to be because the doj has not controverted that statement, they could have come back because of a voluntary cooperation. i don't have any details in terms of that incident. again, it seems to be -- there's a different way to treat people regarding classified information if your name is hillary clinton and james comey versus donald trump. it's just not the even-handed way to do it. it's not how we used to do it at the department of justice. >> do you know if there's interaction with the former president trump and these investigators after that june 3 when he came in and said hey, let me know if you need anything. we're here to cooperate. were there subsequent attempts, excuse me, mr. president, we need these boxes? were there efforts to have them retrieved in a much more less intrusive manner? >> i don't know. i can't speak to that. i wasn't a witness to any of that or part of those conversations. you know who could have cleared it up fast? the department of justice saying we tried on this date, this date because they have the documentation and the gsa would have been there with them because records. they can put them out overnight if they wanted to. put out the underlying information if they wanted. they're choosing not to. for the attorney general to come in heavy-handed last night and say i personally signed off on the warrants, that's not the role of the attorney general to tell the american public. we know that. the role of the attorney general is to tell us why. where it's so necessary. that's the point of this whole conversation about nuclear information. let's say that's the case. they waited two years to go seize this information? and if they get away with a two-year mark. how about the warrant was issued friday and they took the weekend off? i would get these warrants and executed them the next minute. you'll find every national security prosecutor will tell you the same. >> martha: okay. will president trump put any other information out there? they would have records of conversations that we were approached on in july, august if we were approached in the middle of this period. do you know if he has any communications that were out there? asking him for these things back? >> i think he's put out a lot. he's one of the most transparent presidents. he can put it out on truth social, which is his platform now. i'll tell the world the look there as much as he's willing to put out. he's put out far more than doj and the fbi has. again, it's incumbent on the department and me as a former prosecutor and i i believe in this that we need to show our positions in cases of public important. >> martha: very important exactly what was declassified by the president in the period you're talk about. we hope you'll come back and fill in this for us as we go forward, kash. thanks for calling in today. >> thank you. >> martha: with that we bring in former u.s. attorney brett tollman, executive director of right on crime. what i'd like to do is play something. i looked at james comey's statement about the classified information, top secret some of it and fbi designated some of it as well that was found on hillary clinton's private servers that i said seems analogous to your home, right? it's on your server, it's a document that is privately owned by you, similar to having a box with a piece of paper in it in your private home. that is a fairly analogous situation. i want to take everybody back, this is july 5, 2016, this is what the then fbi director said about that situation. watch. >> eight of those chains contain information that was top secret. there is evidence that they were extremely careless in their handling of very sensitive highly classified information. she also used her personal e-mail extensively while outside the united states including sending and receiving work-related e-mails in the territory of sophisticated adversaries. we cannot find a case that would support bringing criminal charges on these facts. >> okay. so those are three separate parts of the statement. you'd can see where we put them together. they're done in order of what he said. that last statement we cannot find a case that would support bringing criminal charges was toward the end of a 15-minute statement. i want to point that out. comparable situations, brett? >> they're very capable. they're the handling and mishandling of classified materials. it reminds me of when attorney general barr was asked in 2020 whether or not he would but suit obama or biden or hillary clinton based on russia collusion issues that came up and other issues. he said i'm not going to make the department of justice political. he made the right call. comey may have been making the right call in terms of not pursuing a criminal case against hillary. but that has all changed. merrick garland has changed this. we knew he made the decision before he announced it. but it's very disappointing that we don't have the details and we certainly don't have anything to back up the strategy and the techniques that they used in this particular case. >> martha: what about -- in that statement earlier, james comey, the former fbi director talked about it being -- if you're unknowingly handling these documents, the misdemeanor, depending how you handle these classified documents, he talked about intention with regard to that. given what kash patel just said, the gsa packed up the boxes and the president had no part of them being in his house, this is what he's reporting to right now, where would this fall on the meter of culpability given the way that we saw this raid conducted? >> well, if it turns out that gsa packaged these or if these were boxes put together and chipped from the white house when transitions from one president to the other, you don't have the mental state evidence to prove there was intent. you have to show the president himself had the intense to take and keep and refuse to give back classified materials. that doesn't even include whether or not he designated that or declassified it. it's whether or not he had the intention and overt acts by president that back up the theory that he had the intention to commit a crime. we don't have any of that. we have mer