The Mar-a-Lago search warrant has become a hot topic for speculation. Here's what we really know
The search of Mar-a-Lago sparked fierce calls for transparency and allegations of wrongdoing from across the political spectrum. But few have seen the search warrant.
- The warrant to search Trump's Mar-a-Lago estate is sealed.
- Documents suggest the Justice Department has been working on this investigation for months.
- Trump has commented on the search; Attorney General Merrick Garland spoke on Thursday.
In the days since the unprecedented FBI search of former President Donald Trump’s Mar-a-Lago residence and club in Florida – and his safe – Republicans and Democrats alike have tried to spin the operation for their own political purposes. That’s especially the case with the search warrant, which has been sealed by a judge.
In the absence of an unsealed warrant or any public official explanation for the search Monday, lawmakers and political talking heads have spun themselves up speculating on whether the action was justified and what exactly the FBI sought and why.
What is known is that the warrant was signed by a judge, and it contained details of what the FBI was after. Sources familiar with the matter have confirmed to USA TODAY that the investigation is related to allegations Trump removed classified documents from the White House when he left office and brought them to his Palm Beach complex.
Neither the Justice Department nor the FBI has commented or released details about the specifics of the warrant. But on Thursday, the DOJ petitioned the judge to unseal the search warrant, attachments and property receipt summarizing what was seized from Mar-a-Lago, “absent objection from the former president." At a news conference, Attorney General Merrick Garland said the department was doing so because of the significant public interest in understanding why authorities conducted the search.
Around midnight, Trump announced that he supported "the immediate release of those documents.”
Most of those blustering about the warrant can't know what they're talking about for sure. Few people have seen it other than those who approved and executed the warrant and the documents filed in support of it by the Justice Department and the FBI, according to a host of law enforcement officials, constitutional scholars and legal experts interviewed by USA TODAY.
“We have not seen the application for the warrant. We haven't seen the warrant. We don't know what statutes the government averred that there was probable cause to believe had been violated," said David Laufman, who headed the Justice Department’s Counterintelligence and Export Control Section until 2018. In that role, Laufman supervised the investigation and prosecution of cases affecting national security, including mishandling of classified documents.
"What we do know is that a neutral and detached magistrate agreed that there was probable cause that a crime has been committed and that evidence of that crime would be found at Mar-a-Lago when the search was executed. And that's not chopped liver," Laufman said. "So we just await further information on what criminal violations the government is investigating and what it seized from Mar-a-Lago to have a more informed sense of what the investigation writ large and the search is about.”
Here’s what we know about the warrant and the broader search, and what it means going forward.
Unsealing a search warrant? That doesn't mesh with DOJ policy
Since the news broke, Republicans have demanded that the Justice Department unseal the warrant, so the public can see what’s in it – and presumably what federal authorities are searching for in their investigation.
Trump has a copy of it and can make it public whenever he wants, if he believes the FBI, Justice Department and the judge who approved the warrant application acted politically or otherwise in bad faith.
The search warrant, as is often the case, was sealed for a reason, and unsealing it to appease political supporters of Trump – or his detractors – would go against long-standing Justice Department policy and tradition.
The reason search warrants are sealed, along with the accompanying sworn affidavit by an investigating federal law enforcement agent, is that they provide confidential details of a criminal probe that is operating in secret so as not to tip the government’s hand to those under investigation, according to David Kelley, the former interim U.S. attorney for the Southern District of New York.
Subpoenas and other publicly disclosed documents suggest the Justice Department has been working on this sensitive and potentially explosive investigation for months.
'Defund the FBI':Trump supporters react to Mar-a-Lago search
“If the FBI or any other federal agencies are raiding the former president’s home, I would presume it is for a very active criminal investigation, or investigations,” Matt Dallek, a longtime presidential historian, told USA TODAY.
Even if Trump decides to go public with the warrant, he only has a copy of the application for the search warrant. FBI agents never leave the document that spells out the scope and depth of the investigation, which is the affidavit, or statement of facts, filed by one of the investigating agents as part of the application for the search warrant that is presented to a judge, Laufman said.
That document spells out the probable cause, or why agents want to conduct a search, as well as what they hope to find and often how they know what they know based on the investigation, according to Laufman, who represents high-profile clients as co-chair of the National Security Practice Group at the law firm Wiggin and Dana in Washington.
Laufman said he has never heard of a case in which authorities shared the affidavit with the target of a search warrant, because it would telegraph exactly what their investigation was about.
Experts said those calling on federal authorities to comment on the search warrant and provide relevant details don't understand how the process is supposed to work.
"It is long-standing practice at the FBI and the Justice Department not to comment on ongoing investigations," said Noah Bookbinder, president of Citizens for Responsibility and Ethics (CREW) in Washington.
"There are a couple of reasons for this," said Bookbinder, a former federal corruption prosecutor. "They don't want to undercut the investigation by giving too much information to the people they may be looking at or talking to.
"But some of it also has to do with protecting the targets of the investigation. … The government doesn't want to cast aspersions on someone who has not been charged, and may never be charged," Bookbinder said.
Search warrant scrutiny
Even though the GOP has for decades painted itself as the “law and order” party, Republican leaders blasted the FBI and Justice Department as being out of control in conducting a search at the home of a former president of the United States.
“When Republicans take back the House, we will conduct immediate oversight of this department, follow the facts and leave no stone unturned," said House Minority Leader Kevin McCarthy, R-Calif. He vowed retaliation against Garland and the Justice Department in a tweet Monday night. "Attorney General Garland, preserve your documents and clear your calendar."
The FBI and Justice Department are acting according to well-established federal policy and protocol in trying to gather evidence of suspected criminal wrongdoing. They convinced a federal judge that such evidence existed in the locations they wished to search.
The politically sensitive search was probably reviewed and approved by Garland and FBI Director Christopher Wray – a Trump appointee and assistant attorney general in the George W. Bush administration – before investigators went to a judge for approval.
Alberto Gonzales, a former attorney general in the George W. Bush administration, told USA TODAY he believed a law enforcement action of such magnitude would almost certainly have involved the sign-off of Garland and Wray.
“Unless there was a serious breakdown, I have to think that this was approved at the highest level,” Gonzales said.
Would the warrant indicate Trump faces legal trouble?
The stakes for Trump depend on what FBI agents found during their search of the premises and what evidence they established beforehand that helped persuade a judge that the search was necessary and appropriate.
The search is only part of the investigation, and the threshold for probable cause is a far lower bar than the “beyond a reasonable doubt” needed to convict someone in a court of law, said former federal prosecutor Neama Rahmani, president of West Coast Trial Lawyers.
The person whose premises are searched – in this case Trump – doesn’t even have to be the target of the investigation, Laufman told USA TODAY. “It could be some third party in possession of information or evidence that would pertain to the commission of a crime” that authorities suspect was committed by others.
Trump criticizes FBI agents
Trump and his lawyers complained that the FBI was up to no good when conducting the search.
Their rationale: The agents executing the search wouldn’t let Trump lawyer Christina Bobb or others accompany them.
"Why did they STRONGLY insist on having nobody watching them, everybody out?” Trump wrote Wednesday on his Truth Social platform.
Established protocol for the FBI is to keep everyone away from the area except agents conducting the search, according to Tom O’Connor, a 22-year FBI agent who served as president of the FBI Agents Association for nearly three years before retiring in 2019.
“I’ve conducted hundreds of searches over the past 20-plus years, and under the federal rules and protocols, whether it is family members or attorneys or other third parties, they are not involved in the search,” O’Connor told USA TODAY. Agents “control the premises and conduct a methodical and detailed search. At the end of that search, the parties responsible for the property are given a detailed list of items that were seized. It’s all in plain view.”
O’Connor said the FBI and Justice Department have developed a comprehensive list of requirements for the search that are designed to improve transparency and protect the agencies from accusations of conducting an overbroad search or planting evidence.
During a search, he said, two agents collect the items of evidence as described in the warrant. The evidence bag that the item goes into is signed off by two FBI agents.
“So it's not ever one person collecting one item and they're the only ones to see it,” O’Connor said. Photographs are taken of the seized items where they were found.
“So it is a very detailed and methodical process, and they follow that process on every search,” O’Connor said. “It is not people going in and just throwing stuff in a bag.”
Justice Department officials held discussions this summer with Trump lawyers about material at his Florida estate, even after more than a dozen boxes of records were returned to the National Archives.
In June, a small group of officials from the Justice Department and FBI met with Trump lawyers at Mar-a-Lago, a meeting first reported by CNN and confirmed by The Washington Post. The group made the trip to learn more about additional documents, potentially classified, that were stored at the former president's estate, according to reports.
On Tuesday, a day after the FBI executed a search warrant at Mar-a-Lago, Bobb told The Washington Post, and confirmed to NBC News, that agents removed about a dozen boxes stored in the estate's basement.
Trump and his supporters insisted that the search was part of a broader “witch hunt” by authorities who are against Trump and perhaps trying to undermine his expected run for president again in 2024.
Applications for search warrants are full of detail about exactly what investigators are looking for, including specific documents, computer hard drives and other repositories of information. The affidavit filed in support of the warrant, which is part of the warrant application reviewed by the judge, has even more detail, often 20 or even 40 pages. Usually, it is based on months of investigation, including interviews with witnesses who would know what is in the place to be searched.
"It’s not going to be just letters in there or boxes of White House souvenirs,” former Trump White House spokeswoman Stephanie Grisham told USA TODAY. “I think they are looking for something big that is in there.”
Contributing: Kevin Johnson