0 a five alarm fire at the national archives over donald trump's failure to return top secret documents. tonight, the newly published letter of the ex president. and andrew weissmann on each revelation keeps looking things worse for trump. >> president trump's legal team at quite requested the appointment of a special master. this is kind of a last resort situation. >> why a trump appointed judges scoffing at his attempt to slow down the investigation. and then it's election night. steve kornacki is here for all the results. from new york, florida and beyond. all in starts right now. >> good evening from new york i'm chris hayes. we do have a lot going on as you can see from the bottom of your screen there. it is primary election night three states, new york florida, and oklahoma. polls of just closed in florida and oklahoma, to be closing in for new york at 9 pm. new yorkers if he's still watching this 11 hour to vote. florida i can tell you that and d. c. news projects that former governor ankara congressman charlie crist as the project tick leader winner of the -- he will be then be running against ron desantis charlie crist for his old job as governor of florida. congresswoman val demings is the projected winner of the democratic primary for senate. she will face off in a row marquee senate race for against marco rubio since november. steve no he will be here to take us through all the races, to watch in just a little bit but, the news continues to break. two weeks now since the fbi searched donald trump's home at mar-a-lago, with every revelation, every day the facts just keep getting worse for the ex president. you don't have to take my word for it. trump's republican allies have made that very clear on their own, and trying to defend and they've been running around painting in hypothetical experiments about how the situation could. be sure the president took a bunch of classified documents from the white house, but how classified are they really? >> you can say nuclear weapons but there are things that are highly, highly classified, the things that are not highly classified, but either nonetheless classified. it would be very, very narrow of anything that just has the umbrella of nuclear weapons in it that would rise to the level of immediate national security threat. >> that was a top ranking republican in the house intelligence committee saying it might not be the deal a big deal that trump and nuclear secrets languor are mar-a-lago. that was his argument first a few days after the search. he recently claimed that the ex president just use the classified documents so he could sit down and write his memoirs. >> what reason could a former president have for classified or top secret information once he's left office? why bring it home with into florida? >> wow i don't know. you'd have to ask him, but certainly we all know that every former president has access to other documents. that's how they write their memoirs. they don't have great recall of everything that's occurred in the administration. >> first of all, access to the documents is key here. also it's kind of fun to see trump burning the midnight all sitting at a desk in mar-a-lago, top secret documents splayed across some oomph everson writing his memoirs. this is not the only republican who's tried this defense. talking about all the hypothetical -- congressman of utah also the intelligence community talked about a worst-case similar scenario in political earlier this. matt quote yet if he had actual special access program -- do you know how extraordinarily sensitive that is? that's very, very sensitive. if that were actually it is residents, that would be a problem but we just don't know that so let's find out. congressman mike mccaul of texas, top republican on the foreign affairs committee and i quote. when you get the park compartmentalized classified papers, it gets more serious. well guess what congressman? that's exactly the kind of information the fbi recovered from mar-a-lago two weeks ago. we know thanks to this letter -- that recovery of fbi wasn't the first kind of recovery those types of documents. this letter was first made public by conservative journalist john foul on and, and in the letter the archivist refers to the first 15 boxes of records recovered from mar-a-lago in january. she writes quote, in this initial review of what was in the boxes, the national archives identified items marked as classified suit national security information up top secret, and chris stewart, mike mccaul, sensitive compartment compartmented information and special access program material. precisely the type of extremely secret material donald trump's backers called quote, more serious than a problem. in fact this letter shows that basically everyone in the federal government who was in on this and was aware of these documents and how top secret they were, were ringing the alarm bells. the archivist goes on a quarter previous letter to the to the department of justice's national security division, said trump's lawyer in late april, important national security interests and the fbi and intelligence community getting access to this material. they also reveal that just again those 15 boxes they had to kind of pry out of donald trump didn't get till january, they found over 100 boxes of classified documents, comprising more than 700 pages. that was the first batch turnover. doj continues quote, access to materials not only necessary for ongoing criminal investigation, but -- an assessment of the potential damage resulting from the apparent manner in which these materials were stored, transported and taking any necessary remedial steps. that's a representation of the overall tone of this letter which is quite serious all the way through. which makes sense considering were false and the timeline of the u.s. federal governments many efforts to get these documents back from donald trump. the national archives first contacted all trump in may of 2021 more than a year ago about missing documents. they initially retrieved 15 boxes of documents from mar-a-lago in january this year. then they get all these boxes right? they go through them and finally contain 700 pages of classified documents that freaks them all out the national archives -- they sent trump's team a letter and be, given the dot fbi access to the documents -- because well they have to do an assessment of the possible damage here. this letter, the one we're seeing for the first time came on may 10th. we know that donald trump received a subpoena for the documents later that month. dude, this is bad, this is not good we're letting the fbi have these. we need to get all these documents. then after that there is a subpoena. the court says you have to show the documents. then the federals feds visited mar-a-lago in june. this is not a search warrant, they found more documents that he still holding on to and that's before the fbi finally drove the final mile and with the search warrant two weeks ago. now since the beginning of the story there's never been any question about the basic facts, whether donald trump took documents that were not his to take. he should've not remove these documents from the white house and brought them to mar-a-lago. they belong to the national archives. so the next question was, was there classified material among these documents? again, as not really up for debate. the answer to that is a clear yes. fact in defending trump many of his spokespeople seem to have conceded a point. so the next question, the one we heard -- was how classified are they? a lot of stuff is classified in government, and it's lot of stuff is over classified frankly, so we'll be talking about the highest level of classification or more pedestrian classification? what we know now the answer that. they were among the most highly classified material, the kinds of material that trump's republican defenders in congress identified before it was revealed has very secretive. and the final push. the big one, the one that matters the most legally's, was trump's action willful or was it sloppy? and i will say, at first it wasn't that clear. i didn't know. but also clearly he's not the most careful person in the world. who's got the best document retention practices? it seemed to me there could be a plausible story for sloppiness. but the barrage of tax we've gone since the search of mar-a-lago shows it almost like obsessively, singlemindedly willful as the new york times reports today. quote, to form -- we've been designated among trump's representatives but they are caused, try to facilitate the documents return, but the ex president resisted those calls, describing the boxes of documents quote as quote mine,. according to visors familiar with his calm. it looks like he got some folks talking our turn in that operation. now according to the times in this is really a cap believe it, trump also went to the boxes himself in late 2021 before turning them over. keep in mind what boxes were talking about. that was just the 15 boxes in the national archives took in january containing the 700 pages of classified material which we now know is nowhere near everything. times doesn't explicitly say this but just to underline what it appears to be implying, looks like maybe he went through it and kept some of it and then gave back others. turns out that the mar-a-lago search at the doj subpoenaed in june, tells us that investigators revealing people moving boxes in and out and in some cases appearing to change the containers where such documents were held. okay. when we doing? nearly impossible at this point. only available evidence. a lot of it is uncontested. impossible not to say. plainly this is willful. he took it. this is a guy who just took a bunch of top secret documents home to the white house because he wanted them. for what motivation? i don't know. but that's not even that jermaine because they decided they were his, he tried to hide them and to keep them after being repeatedly instructed to return them. major andrew weissmann spent years working the department of justice, most recently's as leeds prosecutor, in now teaches criminal and law at nyu university. he joins me now. andrea, let's just talk about the letter and what the letter, the letter that we now have from national archives, adds to the full picture of the timeline here and the efforts of the federal government went to to try to retrieve all of the classified documents that were supposed to be turned over. >> the letter is quite odd because it was disclosed first by john solomon, who works for the former president and his designate -- to the presidential records that would be kept by the national archives. but the letter is incredibly damning to the former president. it really is odd as to why he released it. the way it's damning is exactly as you say chris, which is the time period as to when the former president left office and today is the most damning evidence. there is one version of the defense which is hey, it was chaotic when i was leaving and i didn't really know it was in the boxes and i didn't intend to take them and as soon as it was called to my attention i returned everything. that's one story. the problem is that in this letter among many other things the e pointed out makes that not a possible actual defense. because over and over again, the department of justice was trying everything and bending over backwards, with the national archives to do everything short of a subpoena and short of a search. that letter actually one of the more shocking things is even though there is a clear national security imperative to do an assessment of what happened to those documents, that letter is on behalf of donald trump saying please delay that. we do not want these documents shared with the intelligence community, the fbi, the cia, the nsa to do that assessment. talk about unpatriotic. but in terms of the criminal case that is going on, it makes the issue of was it intentional beyond a reasonable doubt. >> so i want to read free of the fbi -- i think is many case i think it's been used in credit incredibly question questionable ways. during the reds gear during the administration. but what it says here. lawfully having access to control over being in trump's with -- we saw these things that you could know, blueprints, and had national defence information. and will fully retain the same and get this -- fail to deliver it on demand to the officer employed by the united states to receive it. they add an extra bar in the statutory language that says this can't be an accident. it also has to be the case that they come calling you get a chance to turn it over and basically not meet the criteria for willful attention. but if you don't turn it over and maybe are in the ballpark and it almost matches uncannily uncannily with the facts are here. >> yeah we'll also add in the you have the obstruction charge, the 50 19 charge because not only did he not only turn over everything but i think the government quite plausibly can tens that based on all the reporting that he partially turn over documents and deliberately retained the other ones. portion of the new york times story that you read that several people informed new york times that the president personally looked through his documents meaning he decided what would be turned over and would not be turned over is exactly why you have a 15 19 obstruction charge. i'll somewhat to say chris these are very simple charges here, costs of government property, that's his real simple crime, and it's satisfied here, and the governor the president frankly has not denied it but is filing whether this letter or his more recent filing in florida are frankly a confession of just taking government property. >> final question i want to ask you about his executive privilege. i've been somewhat frustrated throughout the lot of the proceedings. from pat cipollone, to the president in the letter that's referenced here. it doesn't seem to be a coherent theory of what it is. it appears willy-nilly from trump and his lawyers, as this kind of magic cape to throw over things. i don't even understand what's the claim here is about the privilege they are describing when the lawyer attempt to say, well, pro four actively were just claiming privilege -- you can't go to the fbi. >> yeah. you are right to be confused. because the claim doesn't have any merit. executive privilege is a privilege where the president says -- to my close advisors and those communications are things that should not be made public. that is not applicable for a whole oral host of reasons. one of the reasons that this is not a defense -- the relief of donald trump is requesting. donald trump's executive privilege -- give the document back to me. no, if it's executive privilege, it means the documents are government documents they need to go to the national archive. so the relief would not be returning them to donald trump. it would be giving that to the national archive. second -- >> definitional, right? if it's executive privilege document, then it is work product. -- it's the type of thing that belongs in the archive a night in the mar-a-lago basement. >> exactly. and the other, is when i was in special counsel, we dealt with getting documents from the trump white house and we were in the executive branch, the department of justice. we reported the attorney general, who reported to the president. these documents were going from the white house to the department of justice. that's within the executive branch. the executive privilege does not apply to documents going with in the executive branch itself. it's only going outside of it. so that doesn't work in this situation. the search was done by the executive branch. >> thank you. nothing i love more than someone telling them. right, andrew weissmann. thank you very much. >> thank. you >> coming, up why a trump appointed judges calling out donald trump's attempt to slow down the investigation of the classified documents. but first, it is primary night america. polls are close to florida and oklahoma. we have a bunch of votes from florida, where they count the votes very fast. new yorkers have about 41 minutes to get to the polling place, steve kornacki joins within latest updates after this. don't go anywhere.