The FBI’s surprise search of former President Trump’s residence has raised unanswered questions and engendered wide speculation. Here is a guide for the perplexed.
What do we know about the law enforcement activity on Monday at Mar-a-Lago?
On Aug. 8, federal agents searched former President Donald Trump’s Mar-a-Lago property in Palm Beach, Florida. Trump, who was in New York at the time, released a statement calling the search an “unannounced raid” involving a “large group of FBI agents” and noting that the agents “broke into” his safe. Trump did not say why the search occurred, and the Justice Department and FBI, both at headquarters in Washington and at the Miami field office, have so far declined to comment.
The Secret Service was reportedly notified several hours before the warrant was served around 10:00 a.m. local time, and Trump’s security detail assisted the investigators by facilitating access to the property. The search reportedly lasted most of the day, concluding by late afternoon. The federal agents appeared to focus their search on the area of Mar-a-Lago in which Trump’s offices and personal quarters are located, according to CNN.
In order to get court-authorization for the search warrant, federal investigators would have needed to demonstrate that there was probable cause to believe that a crime had been committed and that evidence of the crime could be found at the former president’s Florida estate.
Eric Trump told Fox News that the search was conducted as part of an investigation of boxes of documents sought by the National Archives, and multiple people familiar with the matter told news outlets that the investigation dealt with Trump’s alleged removal of classified documents from the White House. Trump lawyer Christina Bobb confirmed that the bureau seized documents during the search.
A White House official said that the White House did not receive notice of the search in advance, and a senior administration official told CNN that President Biden was unaware of any law enforcement activity at Mar-a-Lago before the news surfaced publicly.
Is this a big deal?
Yes.
A warrant requires probable cause that criminal activity has taken place or is taking place. Any time the government is willing to go before a federal court and persuade a judge that criminal activity justifies a search of the former president’s residence, it’s a very big deal. It’s such a big deal, in fact, that it has never happened before.
The problem is that, right now, we don’t know what kind of big deal it is. We actually don’t even know for sure whether the investigation is focused on the behavior of Trump himself, though it’s a reasonable assumption that it is.
What do we know about the investigation that led to this search warrant?
Little information is public, but the Washington Post first reported that the National Archives retrieved a tranche of documents from Trump’s Mar-a-Lago home in January 2022. In February, the Archives announced that it had “identified items marked as classified national security information within the boxes” that Trump stored at the property. And in April, the Post and the New York Times reported that the Justice Department had begun investigating how boxes of classified documents improperly made their way from the White House to Mar-a-Lago after the end of the Trump presidency.
The Post first reported that the Archives had taken 15 boxes of documents from Mar-a-Lago in February. According to the paper, “Trump advisers deny any nefarious intent and said the boxes contained mementos, gifts, letters from world leaders and other correspondence,” including “correspondence with North Korean leader Kim Jong Un” and “a letter left for Trump by President Barack Obama.” In May, retiring Archivist of the United States David Ferriero would recall to the Post how the Archives began its probe into missing documents:
Regarding the material Trump took to Florida, Ferriero said he was told by the White House Office of Records Management about a group of boxes in the White House residence that should go to the Archives.
“As we were moving materials from the White House just before the inauguration, those boxes hadn’t shown up yet,” he said.
“I can remember watching the Trumps leaving the White House and getting off in the helicopter that day, and someone carrying a white banker box, and saying to myself, ‘What the hell’s in that box?’” he said.
“That began a whole process of trying to determine” whether any records had not been turned over to the Archives, he said.
Asked if he eventually got all those records, he said: “Don’t know. This is still under investigation.”
The Post wrote in February that the Archives faced significant difficulties in obtaining the documents from Mar-a-Lago, reporting that, “At one point, Archives officials threatened that if Trump’s team did not voluntarily produce the materials, they would send a letter to Congress or the Justice Department revealing the lack of cooperation.”
Mishandling of such records can create potential criminal liability under the Presidential Records Act and the Federal Records Act. At first, the Post quoted legal experts saying that criminal prosecution for violation of federal records laws seemed “unlikely.” Soon, though, the paper uncovered that the boxes from Mar-a-Lago contained “clearly marked classified documents”—a development that raised questions over possible violation of statutes criminalizing mishandling of classified information. According to the Post, among the documents obtained from Mar-a-Lago were some classified in the most sensitive category of “Top Secret,” including some apparently marked to further restrict access within an even smaller group of approved officials.
According to the Post, officials from the Archives “asked the Justice Department to look into the matter.” House Oversight and Government Affairs Committee Chair Rep. Carolyn Maloney (D.-N.Y.)—who had announced that her committee would be investigating Trump’s handling of documents after the Post’s first story broke—soon declared that the Oversight Committee was expanding the investigation in response to new information provided by the Archives that, according to Maloney, “identified significant potential violations of the Presidential Records Act and other federal laws governing the preservation of federal records.”
By May, the Post and the Times reported that prosecutors had issued a grand jury subpoena to obtain the documents in question from the Archives and had begun to reach out to former Trump White House aides to conduct interviews—a sign that the Justice Department investigation was moving forward.
Did Attorney General Merrick Garland personally approve this action?
Almost certainly.
On Feb. 5, 2020, then-Attorney General William Barr promulgated a new policy regarding the opening of investigations of presidential or vice presidential candidates. This policy set forth several requirements for opening or initiating any such investigation—including a rule that the attorney general, through the deputy attorney general, provide personal written approval, and that the investigation cannot be opened without notification to and consultation with the assistant attorneys general and U.S. attorneys with jurisdiction over the issue in question. Garland made clear that this policy was still in force in a memo in May of this year.
It’s not clear that the Barr policy applies to this situation: Trump is not yet a declared candidate, and a search warrant within a preexisting investigation is not the same as the opening of a fresh investigation. But if policy requires the attorney general to pay personal attention to the opening of an investigation against even minor presidential candidates and their senior advisers and staff, then surely he is also likely to pay personal attention to the execution of a search warrant against a former president, particularly one who has been hinting that he intends to run for president again.
Assume, in other words, that the attorney general, Deputy Attorney General Lisa Monaco, and FBI Director Christopher Wray were all personally involved in the decision to go forward.
Do we know what this warrant was for?
Not with any certainty.
It’s not clear why the dispute over Trump’s retention of these records is being treated as a criminal matter, rather than a set of administrative errors.
Nor is it clear what sort of information the FBI was seeking or what sort of information it has seized.
One possibility is that the purpose of the seizure was not to gather evidence for a criminal prosecution but simply to recover material of particular sensitivity.
That said, we don’t know for sure that the search was limited to material related to the classified records dispute. The activities of the Trump White House and the entourage around the former president in the wake of the 2020 election, after all, are also the subject of Justice Department investigations. And while the Mar-a-Lago search appears to be connected to the classified materials matter, the parameters of the search and the investigation that spawned it are not public—nor do we know if the investigations are in any way related to one another.
As of the afternoon of Tuesday, Aug. 9, the New York Times reported that, “The F.B.I.’s search of former President Donald J. Trump’s home on Monday to obtain information related to his handling of classified information is separate from the Justice Department’s investigation into the Capitol attack on Jan. 6, 2021, according to multiple people familiar with the investigation.” But it wouldn’t be improper for agents, once in the president’s residence, to have collected evidence in plain view related to crimes other than the mishandling of classified material.
How could Trump’s retention of these classified documents have yielded this search warrant?
This is a bit of a mystery at this stage, assuming the search really stemmed from the classified material dispute. Normally, mishandling classified material, in the absence of a suspicion of espionage or willful leaking, is treated as an administrative matter. To elevate a dispute between a former president and the National Archives over the retention of classified material to a matter of court-authorized search and seizure, there is very likely a significant additional factor at issue. One possibility, as mentioned above, is that the additional factor is the sheer sensitivity of the material and the urgent need to recover it. But there are other possibilities too.
We don’t want to speculate about what these other factors might be, but here is how then-FBI Director James Comey characterized Justice Department policy and practice on the point when he announced that the FBI was closing its investigation of Hillary Clinton’s private email server:
Although there is evidence of potential violations of the statutes regarding the handling of classified information, our judgment is that no reasonable prosecutor would bring such a case. Prosecutors necessarily weigh a number of factors before bringing charges. There are obvious considerations, like the strength of the evidence, especially regarding intent. Responsible decisions also consider the context of a person’s actions, and how similar situations have been handled in the past.
In looking back at our investigations into mishandling or removal of classified information, we cannot find a case that would support bringing criminal charges on these facts. All the cases prosecuted involved some combination of: clearly intentional and willful mishandling of classified information; or vast quantities of materials exposed in such a way as to support an inference of intentional misconduct; or indications of disloyalty to the United States; or efforts to obstruct justice (emphasis added.)
It is hard to imagine that the Justice Department would have relaxed these standards in a matter involving a former president.
What’s the process for an FBI action like this?
The typical process to obtain a search warrant is for a law enforcement official—here an FBI agent—to swear an affidavit before a magistrate judge establishing probable cause that evidence of a crime was located at the place to be searched—in this case Trump’s Mar-a-Lago resort. Because Mar-a-Lago is located in Palm Beach, Florida, the investigation is likely being conducted by the United States Attorney’s Office for the Southern District of Florida and the FBI’s Miami Field Office. However, to take an investigative step of this magnitude, as we discussed above, it is almost certain that top FBI and Justice Department leadership—up to and including Wray and Garland—were aware, and most likely approved, of the warrant application and execution.
Although the FBI would be limited to seizing only those items specifically listed in the warrant—and for which it had demonstrated probable cause—these lists tend to be written broadly, and courts give substantial deference to law enforcement when it comes to determining what items fall under the warrant’s scope. Where law enforcement anticipates that some of the information seized might be attorney-client information or otherwise privileged, they will often send in a “taint team”—a group of dedicated agents, separate from the main investigative team, who will first segregate any potentially privileged information before providing the rest to the main investigative team. According to the Miami Herald, this appears to have been done in the search of Mar-a-Lago.
It is telling that the FBI sought a search warrant rather than relying on a grand jury subpoena for the documents in question. Subpoenas are typically used when the bureau has reason to trust that the recipient will hand over the information in question rather than obfuscating or destroying it. One possibility, raised by former Mueller prosecutor Andrew Weissmann, is that the bureau and the Justice Department “could not be confident that the former President of the United States would comply with a grand jury subpoena.” Another possibility, assuming this was an effort to recover classified material, is that the bureau proceeded by search warrant because that is standard practice when attempting to recover spilled classified material.
What’s in the warrant?
We don’t know.
When federal agents depart the location they have searched, they leave the warrant authorizing their search. The warrant is a form that describes only where law enforcement authorities were authorized to search, what they were authorized to search for, and which federal laws may have been violated. The agents do not leave the warrant application, which details the investigation and the relevant evidence that led to and justified obtaining the search warrant.
So a warrant could potentially tell us a great deal about what crimes the Justice Department thinks may have been committed—including whether the search might touch on matters outside the issue of handling of classified information. But although agents would be required to leave the warrant behind, the public would not get access to the warrant unless someone leaks or releases it. According to federal records guru Seamus Hughes, the deputy director of George Washington University’s Program on Extremism, the United States District Court for the Southern District of Florida—where a warrant to search Trump’s Mar-a-Lago property would have been filed—does not publicly file search warrants in the absence of a motion from the Justice Department to unseal the warrant. There is no indication that the Justice Department has yet filed a motion to unseal the warrant or that it will do so.
Is it plausible that the White House really didn’t know about this action before it happened?
It is.
CBS News White House Correspondent Ed O’Keefe has reported that the White House did not have advance knowledge of the search. And this would be consistent with policy as articulated both by the White House and by the Justice Department. Both Biden and Garland have said publicly that the White House is not getting involved in investigative matters at the Justice Department. Biden has said, “I did not, have not and will not pick up the phone and call the attorney general and tell him what he should or should not do in terms of who he should prosecute.” Garland has put it this way: “I am not the President’s lawyer.”
Moreover, in July 2021 Garland promulgated a policy regulating contacts between the White House and the Justice Department, stating that “the Justice Department will not advise the White House concerning pending or contemplated criminal or civil law enforcement investigations or cases unless doing so is important for the performance of the President’s duties and appropriate from a law enforcement perspective.” Then-White House Counsel Dana Remus issued a parallel memo announcing that “outside of the national security context … and absent rare and exceptional circumstances, White House personnel will not discuss specific pending criminal or affirmative civil investigations or cases with DOJ.”
Those policies do allow for some leeway, as the national security qualifier indicates. But it’s entirely consistent with the spirit of both policies, and of Garland and Biden’s public statements on the matter, for the Justice Department to have kept this walled off from the White House.
Does this mean that Donald Trump is about to be indicted?
Not necessarily. Search warrants proceed on a lower standard of evidence, probable cause, than the standard required for convictions: proof beyond a reasonable doubt.
While execution of a search warrant is evidence that an investigation has proceeded to a certain level of seriousness, the distance between that point and the point of indictment is nonetheless significant. What’s more, in this case, recovering the material may have been the primary objective with prosecution less important.
Even if that’s not the case, it is relatively common for investigations that have generated court-authorized searches to nonetheless peter out. For a recent example, consider the high-profile investigation of Trump’s lawyer, Rudolph Giuliani, into his various alleged activities in Ukraine—including his effort to dig up damaging information about President Biden and his son, Hunter. In April 2021, federal agents executed a search warrant at Giuliani’s New York City apartment, seizing his cellphones and computers. However, the New York Times recently reported that the investigation is heading toward a resolution without charges.
What’s more, it’s not even 100 percent clear that Trump himself is the principal target of this investigation, though it does seem likely. It is possible, after all, that the investigation is focused on some underling close to Trump, not on the former president himself.
So there are still a number of ways this investigation could yield outcomes other than Trump’s prosecution.
At the same time, the execution of such a high-profile search warrant is the biggest piece of evidence to date of the Justice Department’s willingness in principle to prosecute Trump. Garland and his colleagues must have anticipated the enormous political blowback that they personally, and the department generally, would receive from Trump’s political allies. While an indictment would be even more controversial, the execution of a search warrant is enough to be considered a Rubicon-crossing step by Trump’s supporters (as demonstrated by the increasingly unhinged rhetoric of many GOP politicians). In other words, the marginal political cost of indicting Trump over and above searching his residence is unlikely to be the margin at which the department’s decisionmaking is occurring. Suffice it to say that the search at Mar-a-Lago goes a long way to addressing questions about Garland’s willingness to prosecute Trump, assuming the legal and factual sufficiency of the case.
What is 18 U.S.C § 2071, and can it disqualify President Trump from future public office?
If former President Trump is being investigated for improperly removing or destroying federal records that were in his custody, then one criminal provision that is likely to be implicated is 18 U.S.C. § 2071(b), which makes such removal or destruction a crime punishable by up to three years in prison. Section 2071(b) also takes the unusual step of requiring that individuals who violate it “shall…be disqualified from holding any office under the United States.”
Some observers have posited that being convicted of violating Section 2071(b) may thus disqualify former President Trump from holding the presidency again in the future.
For better or worse, this assessment is likely wrong.
Article II of the Constitution lays out a specific set of qualifications that individuals must meet to hold the office of president, namely that they be “natural born Citizen[s]” of the United States, at least 35 years old, and have been residents of the United States for at least 14 years. Other parts of the Constitution set out similar lists of qualifications for certain other public offices, including seats in the House and Senate.
The Supreme Court has treated these lists of qualifications for House and Senate seats as exclusive, and has specifically held that state legislatures cannot add additional grounds for disqualification through legislation and that Congress cannot disqualify members-elect on other grounds. The Court has never squarely addressed whether this same logic applies to the qualifications for the Presidency or prohibits Congress from adding to them through statute. But as Seth Barrett Tillman has usefully documented, both lower courts and legal scholars have generally assumed that it does. If correct, this means that § 2071(b) cannot disqualify individuals from holding the presidency for violating it, as doing so would be an unconstitutional expansion of the qualifications already set out in the Constitution. Plaintiffs may still try to challenge Trump’s eligibility for the presidency if he is convicted of violating § 2071(b). But the weight of legal opinion suggests these challenges are likely to lose.
Notably, this isn’t the first time in recent memory that this issue has come up. As Charlie Savage has written in the New York Times, a number of prominent Republican lawyers, including former Attorney General Michael Mukasey, suggested that Hillary Clinton’s alleged mismanagement of her emails while Secretary of State could be in violation of 18 U.S.C. § 2071 and thus disqualify her from running for President in the lead-up to the 2016 election. Legal scholars swiftly swooped in to point out the issues with this argument. Mukasey ultimately conceded that § 2071(b) likely cannot disqualify anyone from serving as president.
Author: News
This post first appeared in Lawfare. Read the original article.