STEVE INSKEEP, HOST:
Today, a federal judge in Florida hears arguments for unsealing an affidavit. It's the document supporting the FBI's search at Mar-a-Lago, the residence of former President Trump. A judge read that affidavit and authorized the search. Documents already unsealed show the search revealed many boxes of documents marked classified or top secret. But Republican officials and news organizations want to see the underlying justification. We've called on former state and federal prosecutor Elie Honig. Good morning.
ELIE HONIG: Hey, Steve. Good morning. Glad to be with you.
INSKEEP: What kinds of information would be in an affidavit like this?
HONIG: So essentially the prosecution's entire playbook would be in this affidavit. It's important that people understand this is different in kind than the documents we've already seen unsealed by the court. The documents that got unsealed last week - they total six pages. They're mostly logistical checklists. Here are the items that we seized in some general description. Here are the items that we searched. That is already out there. That is drafted by prosecutors with it becoming public in mind, because you turn that over to the defendant on the day of the search. He's free to make it public.
This affidavit, though - this is top secret. I don't mean that in the classified sense, but this is the prosecution's investigation laid out in narrative fashion. Often these things run to 50, 80, 100 pages. I've written many of them myself. So if this comes out, Steve, Donald Trump and the public will essentially see the prosecution's case laid bare. And I think that's exactly why DOJ has opposed the unsealing of this document.
INSKEEP: Well, there are two demands from Trump's side of the argument here. The first is why search the president's residence at all when a former president has never been treated this way? I think answered because there was information marked classified. But there's a second question, which is why do this dramatic thing instead of continuing to negotiate with Trump, as they seem to be doing? What is a conceivable answer they could find in an affidavit?
HONIG: Well, so first of all, I think that's a valid question to ask. Was a search warrant necessary? And I think if we look at the timeline of what we know, I think DOJ's answer would be we tried it the easy way. First, the National Archives demanded records back from Donald Trump, and they got 15 boxes. But that turned out to be not everything. Then DOJ tried a subpoena, which is the easy way. It's just a single piece of paper, basically, that says, please hand us over these documents. And still, DOJ did not get all the documents back.
So I imagine DOJ's argument would be we tried it those two ways. We still didn't get all of these highly classified documents back. That's what necessitated the search. That's what caused us to have to use the search warrant. And I think if we see this search warrant, this is the document where prosecutors establish probable cause that federal crimes were committed, including destruction of documents, this Espionage Act violation, having to do with mishandling of defense information and obstruction. It could lay out witnesses. You wouldn't see witness names in there, but references to witnesses and informants that sometimes you can figure out who they are. It might reference other documents that the FBI has seized. So this affidavit would really give sort of chapter and verse on how the FBI and DOJ got permission to do that search warrant.
INSKEEP: I believe that one of Trump's lawyers on TV has demanded to know the names of sources who work for the former president who may have given information. Basically, tell me who betrayed me, in essence. Would an affidavit likely give that?
HONIG: It wouldn't say the name. It wouldn't say Steve Inskeep, but it would say something like informant 1 or witness 1 or witness 2. And a lot of times you can put together the context - who is this person? What did this person know? - and figure out who it is. But that demand by Trump's lawyers is outrageous. There's no legal basis for that. You have to wonder why they want the names. I mean, eventually, if there were to be charges, yes, the defendant, whoever that may be, would know who the witnesses are, would have all their statements, because you do have a right to confront and cross-examine that person. But at this point, there's zero legal basis for that.
INSKEEP: Now, the Justice Department has resisted, saying that unsealing this affidavit would interfere with an ongoing criminal investigation. Now, as a layman, I was really interested in that word ongoing. They've already got the documents. Does ongoing tell you they're trying to uncover more?
HONIG: It does. And it tells me there was some speculation of, well, maybe this isn't really about a criminal investigation. Maybe this is just about let's get the documents back. This confirms that, yes, this is a criminal investigation. Yes, it is ongoing. And DOJ makes the point that to unseal this affidavit now would be so unusual - essentially unprecedented - that it really could deter people who might cooperate in future investigations, whether they're related to this one or not, because if witnesses and informants think, well, gee, my identity - maybe not my name, but certain qualities and features that might allow someone to identify me are going to come out immediately, that'd make them less likely to cooperate with the FBI, with prosecutors.
INSKEEP: Should the FBI not have done this search three months before an election, a period when they generally avoid political interference, anything that can be perceived as political interference? I grant they did it privately, and Trump publicized it. But still, should they have done it at that time?
HONIG: Well, it may not be a coincidence, Steve, that this search was done, I think, precisely 91 or 92 days before the midterm election. There's a long-standing DOJ policy that you don't do things like this. You don't do politically sensitive indictments or searches 90 days before an election - it's called the blackout period - because the idea is you don't want to do something precipitous that may influence an election. So that may not be a coincidence that they did this 91 or 92 days. But, yes, it's a - look, I think DOJ understands this was a big step, and there will be political implications.
INSKEEP: In a few seconds, Rudy Giuliani turned up to testify in Georgia. The president, of course, there asked the secretary of state to, quote, "find exactly enough votes for Trump to win Georgia by one" in 2020. How much legal jeopardy does the president - the ex-president face?
HONIG: Well, we know Rudy Giuliani is a target, meaning he is somebody prosecutors believe they are likely to charge. And I think there are clear connections between what Rudy Giuliani did in Atlanta and what Donald Trump did.
INSKEEP: Former state and federal prosecutor Elie Honig, also an analyst for CNN, thanks so much.
HONIG: Thanks, Steve. Glad to be with you. Transcript provided by NPR, Copyright NPR.