STEVE INSKEEP, HOST:
Now let's ask how Trump's troubles look to a prosecutor. Shan Wu is with us to talk about this, a former federal prosecutor. Welcome to the program.
SHAN WU: Thanks. Good morning.
INSKEEP: Trump's lawyers are not repeating in court his claim that he declassified the documents that were found at Mar-a-Lago because they could be disbarred or prosecuted for lying in court. So they're not telling that. But now they seem to be referring to Trump's public claim. In their filings, they say, well, there's a dispute about the classification status of these documents. Can they get away with that?
WU: They can get away with it legally. And as a matter of legal ethics, I think they probably learned the lesson from watching what happened to Rudy Giuliani and Sidney Powell. What they're having a problem with is most likely managing their client's instructions. Quite obviously, he's kind of gone rogue, as he usually does, trumpets whatever he wants to say, and they're trying to walk it back a little bit while still preserving potential legal defenses. So they are making a rather dismissive statement, putting the word classified in quotes in their latest response. And they definitely want to raise this notion that a sitting president can declassify whatever he wants to, even though they aren't actually arguing that Trump declassified anything. So they're in a little bit of a pickle there.
INSKEEP: And here's one way that that seems to be relevant. The government is now saying, OK, fine, Judge, you want to do this special master to look for privileged documents. The government will say most of these - many of these documents are obviously classified. They're marked classified. They belong to the government. There's no question of them being part of attorney-client privilege or belonging to Donald Trump. So set those aside from the special master. Could the judge conceivably accept that argument?
WU: The judge could, and I think DOJ has been fairly clever with that argument, while they obviously disagree, generally, that there's any need for a special master here, particularly with the idea of a special master looking at executive privilege, which is really unprecedented, and there's no way to understand how they would have a special knowledge of that. But what they've done is they've offered the judge kind of a offramp for her position, which would be a bit of a compromise, would give Trump a little bit of a victory in terms of having a special master. But they've also asked the judge, leave these sensitive national defense documents alone and lift your stay - meaning, let us access them - because it's inseparable to do the investigation from the so-called intelligence review, meaning they have to have access to these documents to work on the investigation.
INSKEEP: Then there's the matter of the identity of the special master. We should remember that each side gave two possible candidates. Trump rejected both of the government choices without giving any reasons. The government says one of Trump's choices would be OK. Does the judge just pick that person?
WU: I think the judge should do that. And again, that's a good example of DOJ being shrewd in its maneuvering there. And that judge, you know, has good qualifications. They used to sit on the FISA court. So presumably that judge would be sensitive to protecting the national defense information.
INSKEEP: Can we talk through another matter here? We are less than 60 days before a big election, a time when the Justice Department is not generally supposed to make public moves about a politically sensitive investigation or prosecution if they can possibly avoid it. Now, Trump is not on the ballot, although in a larger sense he is in election after election after election. What limitations, if any, would the Department of Justice face?
WU: Well, let me first state that I think that is a rule that is antiquated and should be done away with. However, what they're doing here is - were they to make a charging decision, they would probably avoid doing that close to an election because they feel that could be perceived as trying to interfere, an attack on that candidate. Realistically, very little chance of that happening here. I mean, from what we're seeing at this stage of the investigation, while there is definitely now signs of life in the investigation, DOJ a little bit late to the game, but they're certainly active at this point. It's quite some time before they'd actually reach the point of a charging decision. So at least for this 60 days for the midterms, I don't think we're in much danger of that.
INSKEEP: Just got about 20 seconds. But why is this rule antiquated in your view?
WU: I think the notion in our times that - and I think Garland subscribes to this - that you have to be so careful as a prosecutor not to appear partisan or political, the problem here is the threat to the democratic process has been so great, and I think the evidence of the crimes are so great that doing nothing is also being political.
INSKEEP: Shan Wu is a former federal prosecutor. Thanks so much.
WU: Thank you. Transcript provided by NPR, Copyright NPR.