WASHINGTON — The FBI search of former president Donald Trump’s Mar-a-Lago resort has triggered a host of questions with potentially serious legal implications for Trump, legal experts said on Tuesday.
Much is still unknown about what Trump termed a “raid” on his residence, which is part of a federal investigation into whether he improperly took classified materials with him when he left the White House. But the decision to take the unprecedented step of searching an ex-president’s home would likely have required the sign off of top officials including Attorney General Merrick Garland as well as a federal judge, and would not have been taken lightly, former prosecutors said.
“These are very careful lawyers who would not take a monumental step like this without carefully thinking through both the legal and political consequences,” said Howard Sklamberg, a former Department of Justice official who prosecuted former Clinton administration National Security Adviser Sandy Berger for sneaking copies of highly classified documents out of the National Archives. Berger ultimately pleaded guilty and was fined $50,000 and given two years’ probation.
What few details that are public come from Trump, who on Monday said in a statement that his Florida residence was “occupied by a large group of FBI agents” who “broke into my safe.”
The press secretary for President Biden, Karine Jean-Pierre, said the White House was not made aware of the search in advance and declined to comment further. She instead referred reporters to the Justice Department, which has remained silent on the move.
Neither Trump nor the Justice Department has released a copy of the warrant, which would detail what the government believed was present, and where and why it was believed to be important. However, The Washington Post reported on Tuesday that Trump’s lawyer said the warrant cited laws dealing with the handling of classified information and the Presidential Records Act.
The inquiry into Trump’s handling of White House documents was one of the less-watched areas of potential legal liability for the ex-president. Several of his advisers have been summoned to appear before a grand jury in Fulton County, Ga., over Trump’s efforts to pressure election officials in the days after the 2020 vote, and he also faces an upcoming deposition in a separate civil case in New York targeting his business.
This comparatively under-the-radar inquiry into his handling of classified documents first popped into view last February, when the National Archives confirmed that classified material was found in 15 boxes that Trump had taken with him from the White House and were returned to the archives the month prior. Presidential records are the property of the government and must reside at the National Archives. Federal officials began to suspect he did not return all the materials, according to the Post. Trump claimed he and his team had been cooperating with the government as he criticized the decision to conduct a search.
Former prosecutors said the decision to obtain a search warrant presented some intriguing possibilities about how the inquiry had progressed — and what that could mean for Trump’s legal standing.
For starters, getting a warrant requires fresh evidence, meaning agents would have had to demonstrate they had reason to believe documents were still there — not just that they were present months ago. That could mean the federal agents had a source directing them toward a particular document or documents, some speculated.
“I can’t imagine them taking a chance to search a former president’s home and coming up empty handed,” tweeted Asha Rangappa, a legal commentator and former FBI agent.
But what might come of the search, legally, remains to be seen. It is not enough for documents to be present for there to be criminal conduct, said Danya Perry, a defense attorney and former federal prosecutor. The most likely criminal statute, which penalizes anyone who “conceals, removes, mutilates, obliterates, or destroys, or attempts to do so,” an official record, requires that the conduct be done “willfully and unlawfully,” meaning that prosecutors must establish the intent of the offender. Other statutes could also apply, including another on the retention of classified material.
“The government would have to prove beyond a reasonable doubt that Trump was aware that it was unlawful for him to have these documents at Mar-a-Lago,” Perry said.
A veteran of one of the few high-profile prosecutions of a government official for such offenses, Sklamberg said the ability to prove intent would be one consideration the Justice Department would weigh, likely even before seeking the warrant. But there are other factors.
“You don’t charge every case you theoretically can, and a big factor, historically, in these types of cases is, why: Why did the person do it?” Sklamberg said. “There’s another question: What was the damage to national security?”
Making some particularly sensitive documents public during a trial can also raise national security concerns, which Sklamberg said can often deter prosecutions of otherwise winnable cases.
One example of a nonprosecution in a case involving allegations of improper handling of classified materials was that of former secretary of state Hillary Clinton, Trump’s opponent in the 2016 election. Trump used to lead his crowd in chants of “lock her up” over her use of a private server for e-mails including a handful that were classified.
In announcing that the FBI would not recommend charges against Clinton, then-FBI Director James Comey characterized her and her team’s actions as “extremely careless” but said “no reasonable prosecutor would bring” a case based on the circumstances, given the mishandling was not clearly intentional.
If Trump still had classified documents in his possession more than seven months after he was supposed to turn them over to the archives, that could help the Justice Department make the case he had the intent to conceal them. Trump also claimed agents broke open his safe, which suggests agents believed he may have been intentionally hiding some documents. That could potentially constitute a crime on its own, even if originally bringing the documents home wasn’t.
The Justice Department has remained silent on what it was looking for and what it found. But if agents found documents suggesting evidence of another crime, it would have been fair game for them to take them, former prosecutors said. And any documents within the records Trump was allegedly retaining that apply to other prosecutions could also be shared.
In the absence of clarity, speculation has swirled, with much of the conservative media and political ecosystem casting the Justice Department as politically motivated.
But the wait for information may continue.
“I think we’re now going to see things accelerating on the accountability front, that’s my hope and my belief,” said Glenn Kirschner, a former federal prosecutor and legal analyst who argues there is already sufficient evidence in the public sphere to prove multiple criminal charges against Trump.
But he also added a note of caution. “I hate to throw a wet blanket on the accountability party that we’re presently celebrating, but [former Trump lawyer] Rudy Giuliani’s electronic devices were seized [nearly] 16 months ago … and where are we with Rudy? We’re exactly nowhere on the criminal charges front.”