STEVE INSKEEP, HOST:
Let's turn now to former federal prosecutor Renato Mariotti. Welcome back.
RENATO MARIOTTI: Thanks, Steve.
INSKEEP: I want to ask first about that photo. This is something that was discussed on social media. Byron York, a conservative journalist, talked about it. Trump seemed to have picked it up on his own social media feed, complaining that the FBI photos showed secret documents spread out when they seem originally to have been in an unsecured box in Trump's office. Based on your knowledge of investigations, how do you think a photo like that would come about?
MARIOTTI: I think it's pretty standard procedure that when you are searching and obtaining evidence, you will, on the scene, for example, take - spread out and take photographs of the evidence you find. So a lot of our listeners may have seen drug photos like this, right? There's a bunch of cocaine spread on a table that's photographed. No one thinks that all of the cocaine was just sitting out on the table. But that is what law enforcement does at the scene of the search to document what they found.
INSKEEP: And just to be clear on the law here, as best we understand it, if the documents were just in the box, in the unsecured box in the former president's unsecured office, is he any less guilty?
MARIOTTI: No. In fact, as you mentioned a moment ago, it appears that by - it appears that the former president acknowledged that he knowingly possessed the documents. And whether he possessed them in a box or on the floor, it doesn't matter.
INSKEEP: Did you get any insight as to why a Trump lawyer would have signed a sworn statement saying that there were no more relevant documents at Mar-a-Lago when there now seemed to have been many?
MARIOTTI: There's no good reason to do so. And I think it's something that no competent and honest lawyer would have done. Obviously, it appears that what was done was there was an effort to mislead and thwart the Justice Department investigation. I mean, the Justice Department noted in their filing that that same lawyer kept them from going into the room to verify what she was representing in that certification. So it sure looks like an attempt to fool the investigators, which I think is a main reason why the former president remains under criminal investigation.
INSKEEP: Now, I also have been reading the Trump lawyers' response last night. They contest the DOJ filing. They say, obviously, we have standing to complain here because it was a search of Trump's home. He has the right to complain about a search of his home. Does that give the Trump - does that give Trump standing, the right to demand an independent monitor, an independent judgment of what was taken?
MARIOTTI: So they have standing to complain. Trump has standing to complain about a search of his residence. But it's too early. It's not at the stage for him to be making Fourth Amendment argument or raising Fourth Amendment concerns. You know, regarding his request for a special master, I don't think the request in and of itself is out of bounds. But it's very bizarre. And it really doesn't appear to have any basis in fact here given the circumstances of this case.
INSKEEP: One other thing I want to ask about. It seems to me that the government has two choices to make here, one they've made. They decided to recover these documents. It seems to me it may be a separate decision whether to indict anybody, particularly a former president. How do you think that through as a prosecutor?
MARIOTTI: Well, great question. I think the starting point is whether or not there's sufficient evidence, OK? If the Justice Department concludes that they don't have sufficient evidence to prove guilt beyond a reasonable doubt - and I think, in the case of a former president, they would want to be absolutely certain that they could prove guilt. I think that they wouldn't move forward. Assuming that they have those - that evidence, I think they would consider other factors, whether there's a federal interest in the prosecution and, I think, some of the unique issues that come with prosecuting a former president.
INSKEEP: I wonder if you also have to consider, as Gerald Ford did with Richard Nixon, the political implications, the trauma for the country and whether that is worth the prosecution. Is it legitimate to think that part through that is explicitly political?
MARIOTTI: Well, I think that the Justice Department is going to make those considerations. I will say, it's so unprecedented. It's the sort of consideration that is usually foreign to a prosecutor and the sort of thing that isn't considered by prosecutors.
INSKEEP: Renato Mariotti, former federal prosecutor. Always a pleasure talking with you. Thank you so much.
MARIOTTI: Thank you. Transcript provided by NPR, Copyright NPR.