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Former U.S. attorney gives details on Trump's unsealed warrants

MARY LOUISE KELLY, HOST:

We have a warrant. A federal court in Florida has unsealed the warrant and the property receipt from the FBI search on Monday of former president Donald Trump's estate. The warrant directed agents to look for evidence of violations of the Espionage Act and two other federal laws around destroying or concealing documents or removing government materials. The property receipt, basically an inventory of what the FBI took, shows that the FBI recovered several boxes of confidential material, one marked classified/top secret/SCI - that's sensitive compartmented information.

So to try to understand what's going on, we're going to check back with Barbara McQuade, a professor at University of Michigan Law School and a former U.S. attorney. Hi there.

BARBARA MCQUADE: Hi, Mary Louise.

KELLY: Hi. So let's talk about this warrant. It instructs investigators to look for evidence of crimes against three federal statutes, including the Espionage Act. So how serious is this?

MCQUADE: It's much more serious than I think we even imagined. Earlier in the week, we were talking about other statutes that talk about retaining government documents or mishandling government documents. The Espionage Act here talks about documents that, you know, are involved in spying - the kinds of things that could damage the national security of the United States or could be used to advance a hostile adversary. So I don't know what they are. I don't know what he intended to do with them. But the stakes are very high there. For just possessing these documents, it is a 10-year felony.

KELLY: We also got a little bit more detail about the property that the FBI took, this inventory. There is Roger Stone's executive grant of clemency. There is apparently information regarding the president of France, some photos, a lot of boxes - some of which, as we mentioned, had classified information. What stood out to you?

MCQUADE: Well, what stood out to me is an item that said classified TS-SCI documents. These are documents that are, by definition, documents the disclosure of which would cause exceptionally grave harm to the national security of the United States. Because they are so sensitive, they are required to be stored in something known as a SCIF, a sensitive compartmented information facility. It's a special room with special locks that is checked for bugs. It's authorized and inspected on a regular basis by the CIA. And these boxes are in his basement at Mar-a-Lago, a social club where people come and go.

That was another eye-popping revelation to me that this is just so much more egregious than I think it was being portrayed earlier in the week. You know, I think to hear some of Trump's supporters talk about this, you would have thought that this was the menu from the White House mess that he had retained. Instead, these are some of the most sensitive documents in government.

KELLY: Now, former President Trump himself - well, he's said quite a lot this week, statements varying from claiming without evidence that this was an FBI plant to lying that former President Obama also took home classified material. I'll note that the National Archives has debunked that. But he also says, look, I can declassify anything I want. He said, you know, he could declassify this information himself, and then it would no longer be top secret. He has a track record of declassifying information that intelligence agencies wish he had not done. Is there anything to that line of reasoning?

MCQUADE: No, I don't think so. You know, this has been a shape-shifting defense, which prosecutors will always point to as perhaps a reason to be skeptical that this defense is an honest one when we've got all of these different versions. First, it's a denial. Then it's maybe the FBI planted it. Then it's, well, sure, I had them, but I declassified them. Then it's, well, President Obama did it, too, when in fact, he didn't.

So all of those things, I think, suggest that this is not a true defense. But as to whether he can declassify them, the answer is no. He can request declassification. He can direct declassification. But there is a process that is done to actually complete the declassification. It requires a review by the classifying agency that classified it to begin with. Now, I think...

KELLY: Even if the president says this - just to be clear, even if the president says, you know, I declassified these on my way out of the White House.

MCQUADE: He can request the declassification process. He cannot complete it himself. It requires people to carry that out. But what I - where I think he may be going with this is that these statutes that have been alleged here require willful violation. That is, that you know what you are doing is against the law. In contrast to most crimes, where the ignorance of the law is no excuse, for these crimes, it is.

And so it could be that he is setting up a defense to say, even though I lacked declassification authority, I thought I had it. And so because of that good faith belief, I didn't believe I was violating the law when I took home these documents. I think it's about as good as the Harvey Milk Twinkie defense, but it could be that that's the groundwork he's laying here.

KELLY: What about the underlying affidavit? Several former prosecutors have mentioned to NPR that the affidavits supporting this warrant could contain more detailed information as to why this search was authorized. It could also reveal the names of FBI agents involved if they're not redacted. Where would you put the chances we may get to see the affidavit?

MCQUADE: Someday I think we'll get it. It may be redacted to exclude some of those names and some personal details. I think that if this case is ever charged or declined, we will see it. But I think that that could be a bit down the road. And that's because it does contain sensitive information about an ongoing investigation. And for reasons of protecting the investigation and people under investigation, these things are not revealed at this stage. So I think eventually, but not for now.

KELLY: So briefly and bottom line, the big question this week was, would this all turn out to be a nothing burger? And I want to stress there are no criminal charges against the former president, but it sounds like, in your view, there's a burger.

MCQUADE: This is a double whopper with extra special sauce.

KELLY: That is University of Michigan Law School professor and former federal prosecutor Barbara McQuade. Thank you.

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