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What we're learning from the redacted Mar-a-Lago search affidavit

MARY LOUISE KELLY, HOST:

We begin this hour with a story of 15 boxes - 15 boxes of documents handed over by former President Trump's team to the National Archives back in January. Inside, scattered among personal items, agents found 184 classified documents. So the National Archives contacted the Justice Department, and FBI investigators suspected there might be more. That led to the search of Trump's Florida estate earlier this month, where they did indeed find more classified documents. Well, we learned details on all this today because the Justice Department has unsealed the affidavit that convinced a federal judge to approve that search.

I want to bring in former federal prosecutor Andrew Weissmann. He's also a former general counsel at the FBI. And he has direct experience investigating cases that concern Donald Trump. He was one of the lead prosecutors on Robert Mueller's Russia probe. Andrew Weissmann, welcome.

ANDREW WEISSMANN: Thank you. Glad to be here.

KELLY: Well, let's dig in on what - how we have managed to expand our knowledge as of today. We got this affidavit - 38 pages long. Is there anything that leaps out at you in terms of the length, in terms of the amount of redaction, anything just in terms of how this has been presented, released?

WEISSMAN: A couple things - so it definitely fills in some of the timeline in terms of what we now know in terms of an extended period of time where the Archives were beseeching the former president to return documents. It's not that the president just discovered these and realized, oh, I need to return them. There was a lengthy period of time that's referenced in the affidavit - from May of 2021 till the end of December - where it's described as repeated requests by the Archives to obtain these documents. And the other piece of that is for people who think that the Department of Justice didn't act quickly enough. It also, I think, serves to explain that the department seems to have acted quite quickly. The department actually looks pretty darn good here in terms of what they were doing.

And then I would say the other piece is they - you can understand why they acted so quickly because as you referenced, not only were there 184 classified documents, but there were 25 documents that were at the very highest level of classification. And that, of course, could raise a ton of red flags as to whether the department believed there were still documents that could be just as confidential still at Mar-a-Lago.

KELLY: All right. Among the words that leapt out at me from this affidavit was the word clandestine - clandestine human sources. That is part of what they worried might be in danger from these documents being unsecured and at Mar-a-Lago.

WEISSMAN: Yeah. You know, a good example of that is, I was at the FBI and was the general counsel there when the Edward Snowden leak happened. And one of the consequences of that was it immediately put human intelligence - which is what you're referring to - at risk, meaning that people who are cooperating with the national security interests of the United States and providing information had to be immediately relocated and protected.

KELLY: In your view, does this affidavit move the needle on the likelihood or not of former President Trump potentially being charged with a crime?

WEISSMAN: In one of the documents that's not the affidavit, that is actually the brief that the department filed, they actually specifically call out the concern about obstruction of justice and tampering with witnesses and concern about what could be done with respect to a significant number of civilian witnesses and a concern that the government described as particularly compelling here. The reason that's important to your question is that is the kind of crime that really exacerbates the considerations the department has to make - not just of is the crime something that can be prosecuted, but should it be prosecuted?

KELLY: We're talking about all these classified documents. Does it even matter - from a legal point of view, under the Espionage Act or other codes that former President Trump might be investigated for, does it matter if these documents are classified or not?

WEISSMAN: From a technical legal matter - meaning, if you were in a court of law proving this case against a defendant - it isn't required that any of this be classified. But where it is relevant is in the discretionary decision of the Department of Justice whether to charge somebody. For instance, if you were to find that somebody took the menu from a State Department dinner. You know, it was government property, and it shouldn't have been in your possession. It should have been returned. No one's going to make a federal case out of that.

KELLY: Yeah.

WEISSMAN: But that's not what we're talking about here. We're talking about top-secret, compartmentalized information.

KELLY: Well, so as someone with a lot of experience at these type investigations, what now? What are you watching for next? What's the timeline we should prepare for?

WEISSMAN: In terms of the big picture, where many people, when they learned of the search, were thinking that this is a national security investigation - meaning that the main impetus for this is just recouping the documents - I think when you read the redacted affidavit, it makes it very clear that there was also an active criminal investigation. And everything we've learned since that in terms of what was found and the representations by the government to the court, that is something that is going to proceed apace. Given the prominence and importance of this kind of investigation, that there is a lot of oversight - the attorney general and the deputy attorney general to see that this moves quickly.

KELLY: Andrew Weissmann is a former Justice Department prosecutor and former general counsel at the FBI. Thank you.

WEISSMAN: You're welcome. Transcript provided by NPR, Copyright NPR.

Mary Louise Kelly is a co-host of All Things Considered, NPR's award-winning afternoon newsmagazine.
Erika Ryan
Erika Ryan is a producer for All Things Considered. She joined NPR after spending 4 years at CNN, where she worked for various shows and CNN.com in Atlanta and Washington, D.C. Ryan began her career in journalism as a print reporter covering arts and culture. She's a graduate of the University of South Carolina, and currently lives in Washington, D.C., with her dog, Millie.