HUNTSVILLE, Ala. (WHNT) — The investigation continues into former President Donald Trump’s apparent possession of multiple classified documents and the U.S. Department of Justice argued in court Monday that it has reviewed documents seized from Trump’s home and determined a small number contain attorney-client privilege related materials.

The FBI’s unprecedented search of the former president’s Florida residence Mar-a-Lago took place on Aug. 8 and the political and legal fallout is still unfolding. 

Former Northern District of Alabama U.S. Attorney Jay Town, who was appointed by the Trump Administration, said U.S. Attorney General Merrick Garland could have taken a different approach, and he thinks the approach they chose is a signal of where the case against Trump is headed – an indictment.

“They made the decision probable cause existed there was a crime, no matter who it is, they thought a search warrant was the way to go about this,” Town said. “Again, not something I would have done, but I can understand, perhaps, how that came to be.”

Town said his reservations about executing a search warrant on the former president’s home include that it could harm significant cases the DOJ is currently working on in areas like terrorism and drug trafficking because public confidence in the fairness of the justice system could be damaged. And, Town thinks other approaches could have worked, short of this highly unusual step.

“I would suggest there were several other off-ramps that could have been used, a subpoena forthwith that says ‘bring all those boxes to the courthouse in an hour and then there’s contempt procedures after that,” Town said. “There were lesser means to retrieve those 20 boxes, and maybe they had really good reason, we don’t know what was redacted,” (in the FBI’s search warrant affidavit).

If the DOJ declines a prosecution, Town expects that decision will be announced in the next two weeks. But, that’s not the announcement he expects the DOJ to make.

“I strongly believe the charging decision to indict President Trump has been made, and DOJ will indict him and they will do so sometime after the mid-term elections, so they’re not to interfere with those mid-term elections,” he said. “So, this will sort of hover throughout the next three months, But I think at this point the DOJ is wise enough to not want this investigation to seem any more political than those on the right perceive it to be.”

Town said the decision to get a search warrant for Mar-a-Lago was the last piece of the investigation.  

“Searching the former President of the United States home is step 20 in a 20-step process,” Town said. “And when you make a decision to execute a search warrant on Trump’s house, his office, you’ve already made a charging decision. That’s just my experience, it lends itself to believing that is true, doesn’t necessarily have to be. One of the off-ramps that Garland also has, is if the intelligence community does its assessment and there’s been no spillage or negligible spillage, then that might give him enough reason to come off of a desire to prosecute. But, again we don’t know what was in the affidavit that was redacted.

“And any of those attenuating circumstances might be such that we would all agree there should be an indictment and we might all agree that it’s not enough for a charge.  

In considering Trump’s potential defense, Town says it’s not clear what investigation Trump may have obstructed, and he says there are real questions about declassification power, executive privilege, and the basis for the search.

“When you look at the obstruction statute, for instance, that has to be the obstruction of an investigation or the proper administration by an agency,” Town said. “Well isn’t all this about the January 6th commission, and if so, is that an agency? There’s really no strain of a definition of agency that would include a committee of Congress.”

The ongoing debate over a president’s power to declassify records and if it requires a formal process, will likely heat up, even more, Town said.

“What authority did he actually have over those records? Part of that is whether or not he has this sort of magic wand declassification authority, that’s never been decided,” Town said. “Anybody who says they are an expert on that particular topic is not an expert. The 15 boxes the National Archives got in January 2022, those records were under executive privilege, per Trump’s counsel to the archives. And to this day they’ve never relinquished executive privilege over those documents.”

Town said if Trump is indicted several of the issues surrounding the case, like the probable cause basis for the search warrant declassification power and executive privilege, will likely be argued all the way to the U.S. Supreme Court before a criminal case is ever resolved.