LEILA FADEL, HOST:
Documents classified as confidential and top secret, a grant of clemency for Roger Stone, some kind of material about the president of France - that's just some of what FBI agents seized from former President Donald Trump's Florida residence last week. A federal judge unsealed the search warrant for evidence of, quote, "three potential crimes." Also unsealed was a property receipt of the things that were taken from Trump's home. For insights into what we can learn from these documents, we're turning to David Laufman. He's an attorney who used to lead the Justice Department's counterintelligence division. He oversaw the inquiries into former Secretary of State Hillary Clinton's emails and the early investigations into Russia's attempts to influence the 2016 election.
David, good morning, and welcome to the program.
DAVID LAUFMAN: Thank you, Leila. Good morning to you.
FADEL: Now, I wanted to start with these documents that were found at Trump's home. What were your initial thoughts when you saw what he'd taken from the White House?
LAUFMAN: Well, look. What FBI agents found in Mar-a-Lago completely validated the government's application for the search warrant and likely was consistent with what sources cited in the search warrant affidavit - which we haven't yet seen - had told the government. I mean, they made clear that the former president of the United States apparently was hoarding highly classified documents - classified as highly as Top Secret/SCI. Those are sensitive compartmented information. That's the highest degree of concern. There's very sensitive sources and methods. He was keeping them at his private residence like some kind of personal petting zoo. And he and his team apparently were misleading the FBI and the department about the continued presence of classified material there.
FADEL: Now, you've said that the fact that he had SCI material - Top Secret/Secret Compartmented Information - in his home was stunning, egregious. Can you expand on why?
LAUFMAN: Well, I mean, these are highly sensitive documents that, by law, may only be kept in places authorized where they may be kept. Particularly, SCI documents have to be kept in something called a skiff, a compartmented facility with limited restricted access. They can't just be kept in someone's home. There's a lot of reasons why we don't want these documents available for people who aren't authorized to access them to access them, particularly foreign nationals or governments of foreign countries. We know this president has had a proclivity for a cavalier attitude toward protecting national security information, for disclosing sensitive information to foreign government officials. So I think there probably arose some kind of a hair-on-fire moment for the department when they realized that despite representations to the contrary, there was, in fact, and continued to be classified information out there in the wild at Mar-a-Lago that was not being protected.
FADEL: What did you make of the statement from Trump's office that he had a standing order to declassify documents he removed from the Oval Office to take home? Is that a defense?
LAUFMAN: I mean, it's kind of a ludicrous, post-hoc rationalization for public consumption. It's true - well, the president has a kind of inherent constitutional authority to declassify documents, but it doesn't just happen by waving some magic wand and a thought bubble. There has to be some formality to the procedure. Customarily, when a president of the United States has declassified information, there has been a directive that's memorialized contemporaneously in writing. It's communicated to other executive branch officials. It's a decision that is socialized with the U.S. intelligence community. It's an action that's flowed down to ensure there's understanding in every appropriate place that documents have been declassified; markings are removed. There's a formality that surrounds that. It doesn't just, you know, happen in the abstract.
FADEL: Now, this was just a search. And former President Trump is not charged with anything. But I want to ask - these documents and what's potentially detailed in them - what they say about possible charges, if any, former President Trump could face.
LAUFMAN: Well, there have been many cases charged under the Espionage Act under the provisions regarding unlawful retention, as opposed to transmission or disclosure to other parties. I have prosecuted cases like that myself. I oversaw many cases like that. But every case has its own factual ecosystem. The department decides these cases, evaluates them on an extremely molecular, fact-specific basis. And what they'll be looking for in particular to inform their judgment about whether to bring criminal charges or whether there are aggravating factors in this case - you know, those would concern things like the quantity of classified information found there, the level of classification and sensitivity, where it was found, the circumstances in which it was found, how it got there, who had access to it, whether it was disclosed to anybody.
And they're going to have more investigation to do. They're going to have to now unpack, so to speak, these documents and engage in further witness interviews. They're going to want to find out more about how these particular documents came to be shipped from the White House to Mar-a-Lago, why they were shipped. Who made the decision to do that? Who decided which documents in particular were going to be shipped to Mar-a-Lago? And to what extent was Trump involved or others involved?
FADEL: David Laufman is a former chief of the Justice Department's Counterintelligence and Export Control Section. Thank you so much for your time.
LAUFMAN: Thank you, Leila. Transcript provided by NPR, Copyright NPR.