The FBI’s Unprecedented Search of Mar-a-Lago, Explained

Photo Courtesy of First Coast News

“My beautiful home, Mar-A-Lago in Palm Beach, Florida, is currently under siege, raided, and occupied by a large group of FBI agents,” Trump lamented to his followers in a statement via his political action committee, Save America. Trump called the action “unannounced” and maintained it was not “necessary or appropriate,” accusing Democrats of weaponizing the “justice system” against him.

The former president’s hyperbole and our well-deserved schadenfreude aside, what is really going on with this “raid” (which more properly was really just an executed search warrant) and what does it mean for Trump’s growing legal perils? Let’s peak beneath the hood at what drove us to this moment, then explore some of the federal records laws that might apply here.

The Investigation into White House Mishandling of Records

According to many press accounts, and to Trump’s son Eric Trump, the FBI search warrant is related to an ongoing investigation into the removal by the White House of classified documents. This may not sound as sexy as an investigation into fraudulent electors or the insurrection, but as last night’s action made clear, it has some teeth.

Back when he was president, Trump had an issue with complying with the law requiring him to preserve his official records. Back in late January and early February, The Washington Post ran stories about how Trump would routinely tear up documents, including briefings, schedules, memos and other items ranging from the mundane to the sensitive. Some of the presidential records that the January 6 Committee received from the National Archives had to be scotch-taped back together, something that two staffers were tasked with doing, as Politico had reported as early as 2018. Not all the documents survived; apparently Trump also improperly sent many documents to be destroyed in “burn bags” and even reportedly flushed some documents down the toilet, an allegation the former president has denied.

The National Archivists weren’t happy at all about all this document destruction and mishandling. They had to go retrieve some 15 boxes of documents from Mar-a-Lago back in February, and some of them contained classified records. The Justice Department was none too pleased either. On May 12, 2022, The New York Times reported that prosecutors had convened a federal grand jury to look into whether classified White House documents that ended up at Mar-a-Lago were mishandled. It issued a subpoena to the National Archives and began interviewing White House staff who had worked there in the final days of his presidency.

Then in June, according to CNN Chief White House Correspondent Kaitlin Collins, investigators paid a visit to Mar-a-Lago asking more questions about what had been taken from the White House. The visit importantly included Jay Bratt, who is the chief of Counterintelligence and Export Control at the Justice Department. According to reports, investigators asked to see where documents were stored and were led to a basement room, a feature that is rare but still exists in some buildings in Florida. A few days later, Trump’s lawyers received a letter asking them to further secure the room…so they added a padlock.

The Search Warrant on Mar-a-Lago

There are a few key things to keep in mind when considering the search warrant executed yesterday by the FBI. 

First, for the warrant to have issued, prosecutors must have convinced a federal judge or magistrate that there was probable cause to believe that a crime had been committed and that evidence of that crime was on site. This matter was between investigators and the judge, so despite howls from the right, President Biden had nothing to do with this (indeed, the White House apparently didn’t even have advance notice of the action). 

Second, for search warrants there is an additional hurdle that the evidence in support of the search must not be stale. Old information can’t be used to support probable cause behind a warrant. That is to say, there must be some kind of fresh evidence that the search is justified. This could, for example, be a cooperating witness’s recent testimony that sensitive or classified documents still remain at Mar-a-Lago in violation of the law. Note that the warrant must also specify where to search and what specific things to look for, so it’s not as though the FBI can simply go on a fishing expedition with its warrant. They knew what they wanted and where it was, which again suggests someone on the inside was giving them a roadmap.

Third, this is a very special case because it involves a former president’s residence. For that search to happen, it would almost certainly have needed approval by the highest levels of the FBI and the Justice Department, meaning Director Christopher Wray and Attorney General Merrick Garland very likely signed off on it. (Wray, it should be noted, was appointed by Trump and is a life-long Republican.) The fact that Trump’s home was searched adds an exclamation point to Garland’s earlier statements that the Department will go wherever the facts and evidence leads prosecutors.

Fourth, the timing of the search is at least curious. The Department of Justice has a policy against conducting investigations into political figures too close to an election, or it might appear to be influencing the outcome. (The James Comey reopening of the Hillary Clinton email server investigation 11 days before the 2016 election is a classic example of what not to do.) No one really knows how far away from an election the Department’s election-related hold normally goes into effect, but we are definitely in midterms season now, which were 91 days away as of yesterday. It would not surprise me if the search was conducted Monday so that it fell outside an unspoken 90-day election window policy.

Fifth, as former FBI agent and security analyst Asha Rangappa noted, the continued presence of classified documents on Mar-a-Lago is “ipso facto evidence” of unauthorized removal. The FBI isn’t interested in what’s in the documents at this point, only whether they are actually there on the property. But the fact that the search occurred may show that officials believe there is an ongoing threat to national security that needed to be addressed promptly upon learning about it.

The Presidential and Federal Records Acts

So what’s Trump’s legal exposure here? When General Patreus took classified notebooks and stored them at an unsecured house, when Reality Winner removed a classified document and disseminated it, these were crimes for which they were punished. Here, the presidential records were classified and were not transported safely via secure means. After he left the White House, Trump was merely a private citizen holding onto unsecure, classified information at his private residence. The White House, including Trump, appears to be in violation of the letter of the law.

According to a summary by Lawfareblog, there are a few provisions of the federal criminal law that impose liability on officials who violate the Presidential or Federal Records Acts. The most salient one is 18 U.S.C. § 2071, which makes it a felony to willfully and unlawfully remove, mutilate or destroy—or attempt to do so—any record deposited in any public office or with any public officer of the United States. It also makes it a felony for anyone having custody of such records to remove, mutilate or destroy those records and imposes legal consequences, including importantly requiring the individual to “forfeit his office and be disqualified from holding any office under the United States.”

Other statutes may also come into play, depending on what the facts shows:

18 U.S.C. § 641: felony to dispose of any record that belongs to the United States

18 U.S.C. § 1361: felony to injure property of the United States

18 U.S.C. § 1505: felony for individuals to obstruct congressional investigations

Trump will argue, as his allies already have, that as president he was within his rights to declassify documents, which he allegedly did all the time including one infamous incident where he took a classified surveillance photo of a damaged Iranian space facility and posted it on Twitter, arguing it was within his right to declassify it. But there’s actually a formal process for document declassification (I won’t bore you with the details, but it’s more than the president saying so), and in any event Trump lost the power to do so after leaving office. And even if he could prove that the documents were no longer technically “classified” because, well, he said so, they are still federal records that don’t belong to him and were improperly removed, which could trigger legal consequences including a ban from holding federal office if he did so willfully and unlawfully.

It’s important to remember that the various investigations around Trump are proceeding under different grand juries that are focused on different sets of facts and potential crimes. Republican defenders of the former president might be quick to label an investigation into his alleged mishandling of classified documents as a “witch hunt” designed to bring him down over trivial violations, especially in light of the far more serious potential charges around January 6. But the grand jury that is focused on whether Trump and others broke the law around federal records won’t see it that way. Their job is to look at the facts and determine whether there is probable cause to believe that a defendant committed a given crime.

The facts may ultimately show that the mishandled, classified documents were more than trivial and amounted to a genuine national security risk. But even were that not so, it is more than ironic, and even a bit karmic, to imagine federal charges brought against Donald Trump for violations of government records acts that were far more serious than any of those for which Hillary Clinton stood accused.