DOJ officials oppose releasing affidavit behind Mar-a-Lago search

ABC News' Aaron Katersky and ABC News legal contributor Kimberly Wehle discuss the potential legal implications of unsealing the affidavit that preceded the FBI search at Mar-a-Lago.
5:10 | 08/16/22

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Transcript for DOJ officials oppose releasing affidavit behind Mar-a-Lago search
- --ABC News senior investigative reporter Aaron Katersky, as well as Kimberly Wehle, ABC News legal contributor and law professor at the University of Baltimore. Good to see you both. So Kim, the former president is now calling for the immediate release of the unredacted affidavit behind the Mar-a-Lago search. The Justice Department, however, opposing its release in response to requests from news organizations, including ABC News, seeking to unseal it. What more can you tell us about what could be in that affidavit? And why would the DOJ want to keep it under seal? - So the affidavit can be tens-- even 100 pages long, depending on the facts. So the affidavit is the story. It is-- sets forth the evidence, thus far, that DOJ has gathered that gave rise to the search, that gave rise, probable cause, to believe there was evidence of a crime. And they did, it looks like, find evidence of crimes. And I say that because this is-- at least on its face, based on the classification-- not information that should have left the White House or a highly-secured environment. So the way this works is really a balancing test. The various news outlets, I think including ABC News, has asked for this information. But the judge is gonna have to take into account, OK, if this is released now-- this is not after a trial, for example, where it would be easier to get it. If this is released now, what happens to the DOJ investigation? There are witnesses who could be harmed or put in danger who could change their testimony. There documents or other evidence that could potentially be destroyed or made concealed to the government if it's clear what is-- where the government is headed in this. There are national security implications. And also, the filing refers to Grand Jury 6E information, which is top secret, cannot be disclosed without a court order. So I don't think it's going to come to light, frankly. - And Aaron, we know this is a public fight between the former president and DOJ. What's in this for him? Why would he want the affidavit released? - He knows it's unlikely to be released, Kenneth. And I think this just gives him an opportunity to play contrarian. He thrives in chaos. He's been able to use this search of his Florida home for political purposes. He's been fundraising office-- off of it. So why not just say, hey, release it and let the Justice Department look like the ones trying to keep it all under wraps? But I think Trump knows, as well as anyone, that it is unlikely that the entirety of the affidavit would be unsealed. Redacted portions may be. And the Justice Department said they'd be OK with that. Let's see what the federal judge decides. He's scheduled a hearing on this matter for Thursday. - Yeah quite a game of chicken there. Aaron, we know Trump claimed agents took three of his passports during the raid. One of them expired, along with those classified documents. ABC News now confirming those passports were returned to Trump's team. What more are we learning about that? - Yeah, it seems as if they were just swept up in some of the boxes, more than two dozen of them that the agents took out of Mar-a-Lago. And per FBI protocol they say in a statement, those passports can be returned because they're not necessary for investigative purposes. - Kim, let me move to you. We know that tomorrow, Rudy Giuliani is set to appear before a grand jury in Georgia as part of a separate state investigation into efforts to overturn the 2020 election. We learned Giuliani's legal team has been informed he is a target of that investigation. What would that process look like? KIMBERLY WEHLE: Well, when someone is informed that they are target, it's generally is giving their lawyers an opportunity to decide whether to plead the Fifth Amendment protection against self-incrimination. So that's, I think, what the conversations are in this moment. Does Rudy Giuliani show up and say, listen, I can't answer these things because I don't want to say things that could then be used against me in a potential criminal prosecution, which is not unlikely in this moment. He mentioned attorney-client privilege. That's really a sidebar. That's not the question really before his lawyers right now. It really is Fifth Amendment incrimination. - And Aaron, meanwhile, we know that Republican South Carolina Senator Lindsey Graham is vowing to appeal of federal judge's ruling in compelling him to testify before a grand jury in that Georgia election investigation. What's the latest on that? AARON KATERSKY: Lindsey Graham says that because he's a sitting US Senator he shouldn't have to participate. Although, a judge there has already overruled that. Said, this has nothing to do with him being a Senator. It has everything to do with him being a mouthpiece for allies of the former president who are trying to overturn the results of the Georgia vote. And we know that Lindsey Graham was on the phone, the judge said, trying to question the integrity of the Georgia vote, questioning some of the ballots and the electors. And clearly, the prosecutors in Fulton County and Metro Atlanta want to explore that a little bit with him. He's not been named as a target of the investigation, unlike Rudy Giuliani and 16 fake electors. But prosecutors are intent on trying to get at what the Senator might know, even though he says he is going to fight his appearance for as long as he can. KENNETH MOTON: All right, Aaron Katersky, Kimberly Wehle, thank you for your time. I appreciate it.

This transcript has been automatically generated and may not be 100% accurate.

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