An NPR member station
Play Live Radio
Next Up:
0:00
0:00
Available On Air Stations

Former DOJ prosecutor on what could happen if Trump's warrants are unsealed

JUANA SUMMERS, HOST:

Ever since former President Trump announced that his home in Florida had been searched by FBI agents on Monday, his supporters and detractors alike have had one question. Why? Today Attorney General Merrick Garland acknowledged that public interest. He said that the Justice Department has asked a federal court in Florida to unseal the warrant for that search as well as a property receipt of what was taken from Mar-a-Lago. Garland also said that he personally approved the search earlier this week, and he defended the work of the FBI and the Justice Department from charges of partisan bias.

(SOUNDBITE OF ARCHIVED RECORDING)

MERRICK GARLAND: Upholding the rule of law means applying the law evenly without fear or favor. Under my watch, that is precisely what the Justice Department is doing.

SUMMERS: And now we're going to bring in Andrew Weissmann to help us understand. He is a former Justice Department prosecutor and a professor at the NYU School of Law. Welcome back to ALL THINGS CONSIDERED.

ANDREW WEISSMANN: Thanks for having me.

SUMMERS: So, Andrew, what is your top takeaway after watching today's developments?

WEISSMANN: Well, I think that Merrick Garland did something very wise, which is that he stayed within the bounds of Justice Department rules, which is to speak through court filings. But he basically called Donald Trump's bluff because he said, look - you were the one who spoke about this search, not us. And we're perfectly happy to have the search warrant and the inventory of what was found during the search made public. And so we're making a motion to the court to have that happen. But we will also provide you notice and an opportunity to be heard so that you can weigh in with the court as to whether you consent or whether you oppose it, meaning that it respects Donald Trump's rights and civil liberties if he wants to oppose it.

But it makes it very hard for Donald Trump to actually take that position because he has been touting how outrageous this is, and it's - and been making all of these claims. And so if he's not willing to have this made public, it's going to look really foolish, and he'll have egg on his face. So I think it was a very smart move that stayed within the confines of the Justice Department rules, which is to not speak about a ongoing investigation and to be very circumspect about ongoing matters.

SUMMERS: So if the search warrant, as well as the property receipt, are made public, what could we learn from them? And generally speaking, I know we don't know what is in these specific documents, but what information do these types of documents generally contain?

WEISSMANN: So those are great questions. The document that we really want to see is the underlying affidavit. That is the FBI agent swearing under oath what the facts are that support the probable cause for the search warrant. That is probable cause for there being evidence of a crime at Mar-a-Lago. But as I understand it, that is not one of the documents that is being sought to be unsealed. That being said, though, the warrant itself very often lists the crimes that are being investigated.

This - it should also list exactly where the agents can search and cannot search. The attorney general today in his announcement alluded to that, that it was very circumscribed as to where exactly they could go. And it also lists what exactly they can look for. And more than that, the inventory will also provide a list of what was found during the search. Now, it won't be document by document, but that should be very helpful in identifying, for the public, that there was material there, and presumably it will be material of a classified nature that Donald Trump was not entitled to have in his possession.

And that really is the key question, which is why Donald Trump had classified information as a private citizen in his premises and didn't return it. So I think we'll (inaudible) certainly a lot more than where we are now. But we won't, without that underlying affidavit, get all of the answers that I think everyone is looking for.

SUMMERS: The remarks that we heard from Attorney General Merrick Garland today - they were brief in nature. But one thing that struck out to me, given the fact that you said the agency is known for speaking through the work, their court filings, is that he said that he personally signed off on this search. Is - how significant is that?

WEISSMANN: You know, I think it's obviously significant that something rises to his level. But I think before he said that, I think all of us who had worked in the department were pretty confident...

SUMMERS: OK.

WEISSMANN: ...That the attorney general would sign off on something like this. I do think one thing he said was - stood out to me, which is he made a point of saying not just that he stood up for the integrity of people at the department, including the FBI, but he made a point of saying that Donald Trump's attorney was on site during the search. And both of those things were a subtle way of his saying all of these suggestions that the FBI planted evidence is hogwash because his own attorney was present during the search.

SUMMERS: And the implication there is, then, that if the attorney was present, it couldn't have been that - Trump could not have been caught off guard then, yes?

WEISSMANN: It couldn't have been caught off guard. And it's hardly the case that the FBI is going to start planting evidence in the...

SUMMERS: Right.

WEISSMANN: ...Right in front of a defense attorney.

SUMMERS: Do you think that the documents that we may see, depending on what happens with the court, will tell us anything about the risks to former President Trump potentially being charged with a crime?

WEISSMANN: I actually don't. You know, I don't think it will give us enough information. It's possible, but I don't think, without that underlying affidavit, we'll have that sense. You know, I've always thought that this was a case where what was really paramount to the Department of Justice was getting their hands back on highly sensitive classified documents and that only a secondary issue was whether a criminal case would be made against Donald Trump or anyone else. I could see the overriding interest here being one of national security, that these documents were so sensitive that they had to be repatriated and could not be left in a place like Mar-a-Lago, where, you know, lots of people have access to it.

SUMMERS: Right.

WEISSMANN: In fact, there have been - just recently, there was a case of a Chinese spy trying to gain access to Mar-a-Lago.

SUMMERS: I'm going to ask you one more question here. We've got about 30 seconds left. The judge wants to know by 3 p.m. tomorrow if Trump objects to unsealing the warrant, an option that he has, even though he's announced that his estate had been searched. Any predictions on how the former president may respond?

WEISSMANN: I think it would be very hard for him to oppose it. I do expect that the judge will rule very quickly on this. These are the kinds of motions when the government makes its pro forma, and they're usually granted...

SUMMERS: OK.

WEISSMANN: ...In very short order.

SUMMERS: All right. Andrew Weissmann is a former Justice Department prosecutor and FBI general counsel who worked on the Mueller investigation. Thanks for your time.

WEISSMANN: Thank you.

(SOUNDBITE OF BADBADNOTGOOD AND GHOSTFACE KILLAH SONG, "FOOD") Transcript provided by NPR, Copyright NPR.

Juana Summers is a political correspondent for NPR covering race, justice and politics. She has covered politics since 2010 for publications including Politico, CNN and The Associated Press. She got her start in public radio at KBIA in Columbia, Mo., and also previously covered Congress for NPR.