The FBI search of former President Donald Trump’s Florida residence on Monday signaled an extraordinary escalation of an investigation into the handling of certain documents from his presidency and raises questions about whether his legal exposure extends beyond whether he was wrongful in his departure from the White Government records has taken home.
Exactly what the FBI was looking for and why is still unknown. But to obtain a search warrant, investigators would have had to show a judge that there was probable cause for a crime and that evidence of that crime was found at Mar-a-Lago, Trump’s Palm Beach resort.
Here’s what you should know about the legal implications of the search coming as Trump prepares for a possible presidential bid in 2024, and what might come next:
To obtain court approval for the search, investigators would have had to provide a judge with a detailed affidavit showing that there was probable cause to believe a crime was committed and that evidence of that crime was recent Days on the property are available the search is being sought.
The search warrant would have been filed sealed, meaning its details are not currently publicly available (although they may become public in the future). Federal court in West Palm Beach has only listed one sealed search warrant application since June that was pending, according to the court’s Public Case Register as of Friday.
But before prosecutors got to the point of asking a magistrate to approve the warrant, investigators would have had to get the OK from the highest levels of the Justice Department to proceed with a search that had such historical and political significance. Legal experts told CNN.
Former DOJ officials told CNN it was likely that at least Assistant Attorney General Lisa Monaco should have given the green light and that Attorney General Merrick Garland and/or FBI Director Chris Wray may also have been consulted.
“Not only would investigators have to propose it, not only would a line attorney have to agree with it, but multiple levels of management would have had to approve it — all the way up to the attorney general,” said Daren Firestone, a former DOJ attorney, told CNN.
The Justice Department declined to comment.
Taking the extraordinary step of executing a search warrant on the home of a former president suggests investigators are investigating more than what the National Archives previously recovered from Mar-a-Lago, according to legal experts.
In January, the National Archives recovered 15 boxes of records from Mar-a-Lago, including materials that had been identified as classified, but activity around those boxes had been quiet since the spring.
“I really don’t think the department would have taken such a significant step to obtain a search warrant on the president’s residence for information that they had already received,” said Andrew McCabe, a former FBI deputy director and CNN contributor , on CNN. Newsroom.” “There had to be a suspicion, a concern, and indeed specific information that led them to believe that additional material was not turned over.”
Prior to news of Monday’s raid, a law called the Presidential Records Act was at the forefront of public speculation about Trump’s legal vulnerability as other investigative moves related to the handling of Trump White House documents were made. This law – passed after Watergate to clarify that certain records of a presidency belong to the public and not to the former incumbent – is not criminal law and has been seen as relatively toothless law.
A search warrant and the presence of the FBI means a criminal investigation. There are other record-keeping laws that carry criminal penalties — like the Espionage Act — but it’s not clear at this time which criminal laws were implicated in the Justice Department’s investigation.
Destroying or removing federal records or mishandling classified documents is a crime. There are other federal laws designed to prevent the tampering of information during an investigation.
Earlier this year, the Justice Department issued subpoenas for presidential materials, including classified documents previously accessed by the National Archives. The FBI also interviewed Trump aides in Mar-a-Lago as part of the investigation earlier this spring, according to a source familiar with the matter.
For investigators to escalate their investigation with a search, “there has to be something serious that deserves more than a slap on the hand,” said Firestone, now a partner at DC-based firm Levy Firestone Muse.
It is also notable that the DOJ did not go down the route of a civil suit against the former president for handling the documents in question. Just last week, the Justice Department filed a civil lawsuit against former Trump White House official Peter Navarro, alleging that Navarro violated the Presidential Records Act and seeking a court order forcing him to stop emails from a private account he used while working at the Trump White House.
The search came two months after the previously unreported June 3 meeting between DOJ investigators and Trump’s attorneys at the resort. During the visit, which CNN reported on Monday, four investigators, including the head of the counterintelligence and export control department, toured a basement where boxes of materials were stored.
Five days later, investigators sent Trump’s attorneys a letter urging them to continue securing the room where the documents are kept and asking aides to add a padlock to the room.
That the FBI was executing a search warrant two months later suggests federal officials weren’t happy with what they saw during the visit or that they had no faith in the voluntary cooperation they received from Trump’s team, they said some legal experts. It’s possible that federal officials also needed official authorization to repossess classified records.
“The fact that the FBI learned that Trump still had documents on him [Mar a Lago] in June, and felt the need to come back with a search warrant two months later, suggests to me that the agency has evidence that Trump and his associates held other classified documents and took no steps to properly return them to the archives . Bradley Moss, a national security attorney, told CNN in an email.
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It may also have taken months for the Justice Department to decide whether to conduct a search and how to proceed.
When the FBI left Mar-a-Lago, Trump’s team would have received a document resembling a take-away receipt. But the DOJ can be as vague as it wants in this documentation.
More broadly, the Justice Department can keep large parts of its investigations secret, as the Justice Department made clear in court filings Monday night related to its search of John Eastman, the former Trump attorney who spearheaded plans to undermine the 2020 election.
In that filing — in which the Justice Department argued against a Jan. 6 request by Eastman that investigators return equipment seized from him in New Mexico in late June — prosecutors said there was no obligation for the department to provide Eastman with more details about the status of its probe to be transmitted.
“The Government has no doubt that the applicant would like full knowledge of the Government’s investigation and an opportunity to become involved [federal agents] in a debate on the basis of the warrant,” the filing reads. “But the law only and properly requires that a neutral judge find a probable cause to search for and confiscate electronic devices from him; it is not necessary for the wanted person to know the basis of the warrant.”
It’s still unknown how unprepared Trump’s attorneys were with the FBI’s actions taken Monday, and what Trump’s team argued with the DOJ about handling the documents in previous interactions with investigators.
Trump could take pre-emptive legal action to challenge the way the FBI conducted the search in court, perhaps with the aim of throwing out any evidence investigators obtained, or at least trying to get more information about it get what the investigators are investigating.
But without such judicial activity, the next steps of the investigation could very well continue in secret.
Another law that could be affected by the FBI’s search is one that prohibits the willful concealment, removal, or mutilation of government records. This law threatens disqualification from “holding any office under the United States” as a penalty.
However, there are questions about the constitutionality of this law and its applicability to a Trump presidential bid should he be convicted under it.
Because the Constitution establishes specific qualifications for the office of president — and provides for a separate impeachment process for future presidential impeachments — some argue that Congress would not have the authority to enact such a statute that would apply to a presidential candidate.