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The latest on the Trump Mar-a-Lago investigation

DON GONYEA, HOST:

Many questions remain about what will happen next now that the 38-page, heavily redacted affidavit, which authorized the search of Mar-a-Lago, has been made public. The document, which was released Friday, provides a glimpse into the FBI's investigation of classified material held by former President Trump. Reading between the blacked-out redactions, we learned about boxes of materials containing 184 classified documents, including 25 that were marked top secret. The mishandling of these documents is part of what the FBI is investigating. We wanted to understand what could happen next, so we've called Neal Katyal. He's the former acting solicitor general of the United States and is now law professor at Georgetown University. Neal Katyal, welcome.

NEAL KATYAL: Thank you.

GONYEA: Before we get to what happens next, what was your main takeaway from the unsealed affidavit?

KATYAL: Well, the judge last week warned that when he was going to order the redacted document to be released, he thought there would be so many redactions and blackouts that the release document was going to be, quote, "unintelligible." And I have to say that it's not unintelligible. I mean, it tells already a compelling and damning story of Donald Trump committing serious federal felonies.

GONYEA: Do you think this new information will compel the Justice Department to charge the former president with a crime?

KATYAL: I do. You know, obviously, every criminal case is going to involve all sorts of facts and circumstances, and we're not privy to all of them. The evidence that's already laid out in the affidavit, coupled with Donald Trump's knowledge about this and intentional retention of these documents, makes it incredibly hard for the Justice Department to look the other way. I mean, the way that you think about this at the department is if we let this one go, what are we saying to future people? 'Cause classified information is, of course, held by many people in the United States government. And if Donald Trump can get away with it for these extremely, extremely sensitive documents, that sends a terrible message to everyone else.

GONYEA: If I may ask you to put a defense attorney hat on for a moment, what argument do you imagine Trump and his lawyers will make in explaining why he held on to these documents?

KATYAL: Yeah. I think the first one has been floated, and it's actually something that the affidavit deals with, which is that these documents are no longer classified. It's a kind of crazy argument that he had a standing order to declassify anything because that would mean that you and I can see this very highly sensitive information about human spies in the field and the like. And that's just incredibly implausible. The further problem with the defense is that reading in the affidavit, it seems like they're not just thinking about charging Trump with abuse of classified and national security information and mishandling of it, but also with obstruction of justice. If a defendant has knowingly concealed or destroyed documents, and they did so to impede the official work of any federal agency, that's up to a 20-year punishment.

It sure looks like, from the affidavit, that that is what happened here. Obviously, we don't know Trump's side of the story. Trump could say, hey, it wasn't willful. I didn't know. But the problem with that is Trump himself is corroborating information on his social media account about his own role in this. And it looks like, from the affidavit, that Donald Trump's handwriting was found on these highly classified documents.

GONYEA: One more thing I'd like your thoughts on - last night, a federal judge in Florida, after getting a request from Trump's lawyers, said she intended to appoint an independent arbiter, known as a special master, to review the documents seized by the FBI. Briefly, can you tell us what a special master is and what this says about the direction of the investigation?

KATYAL: This is not a particularly big deal. A special master is used in criminal investigations sometimes, typically when there's attorney-client information that's been seized by the authorities and the target of the search is saying, hey, I want this material returned to me. It's mine. The government can't look at it. Here, Donald Trump didn't actually seek a special master for attorney-client information. He said that there was information protected by executive privilege because he was president, and the FBI couldn't review it. And what the judge did is say, well, you know, I'm inclined to appoint a special master to look at it. At most, even if the special master did search through the documents, it might mean that some got returned to Trump. But those are all documents, at this point, that the FBI and the Justice Department have already seen and can assess whether they are classified or not.

And as for the merits of the claim, you know, there's no notion, really, that President Trump has executive privilege documents now. It's the current president, Joe Biden, who decides executive privilege under Supreme Court precedent, with very, very limited exceptions. And none of those really seem to actually work out here. And of course, it's a little weird to think that there's executive privilege being asserted against the executive branch itself because the FBI and Justice Department are part of the executive branch. So all in all, I think this is a large nothingburger. It's just going to be a procedural hoop that the Justice Department will have to work through.

GONYEA: That was former acting solicitor general of the United States, Neal Katyal. Neal, thank you.

KATYAL: Thank you. Transcript provided by NPR, Copyright NPR.