For the first time in American history, on August 8, 2022, the FBI executed a court-approved search warrant at Mar-a-Lago, the residence of a former president, Donald Trump, in Palm Beach, Florida. While the nation has undoubtedly become more politically polarized over the past decade or two, this government intrusion into the private home of a former president has generated emotional reactions from both the political left and the political right.
Let’s look at what the formal search warrant document tells us about the facts.
Just What Did the FBI’s Mar-a-Lago Search Warrant Say?
All search warrants approved by a federal or state court must be based on a showing of “probable cause.” Probable cause is presented to the judge in the form of an affidavit reciting facts that would cause a reasonable person to believe that a crime occurred, and that evidence of that crime would be found at the location to be searched. This affidavit was sworn to by federal law enforcement agents under the pains and penalties of perjury.
What does that tell us? First, it indicates that the federal judge who signed the warrant was sufficiently impressed with the contents of the affidavit to believe it justified searching a former president’s home. Incidentally, the judge who signed the warrant was appointed by the former president.
What Probable Crimes Are Alleged at Mar-a-Lago?
The Mar-a-Lago search warrant and other documents, including the redacted affidavit in support of the search warrant, identify 3 separate laws that the FBI and Department of Justice officials believe the former president probably violated:
- The Espionage Act was probably violated by former President Trump because he retained national defense information without authorization.
- Obstructing Justice was probably committed when Mr. Trump destroyed or concealed records with the intent to “impede, obstruct, or influence federal government activity.”
- Custodian of public record (Trump) Illegally removed or destructed “any public record”
Before the execution of the search warrant, the National Archive and Record Administration (NARA) made several demands requiring the former president to return records he had removed from the White House when he left office. While some were returned in response to a legal subpoena, the condition of the documents gave NARA reason to believe others were still at Mar-a-Lago. NARA referred the matter to the Department of Justice which engaged in a series of negotiations with Mr. Trump’s attorneys, including one attorney’s sworn statement that no pertinent records remained in Mr. Trump’s custody. Several of the documents are reported to have Mr. Trump’s hand-written notes and mixed in with other documents Mr. Trump allegedly handled at Mar-a-Lago.
As we learned from the search warrant inventory, 11,000 documents being sought by the government were, in fact, at Mar-a-Lago. (The law requires law enforcement to “return” an inventory of everything seized during the search.)
What Does the Espionage Act Have to Do with the Mar-a-Lago Search Warrant?
The Espionage Act (18 USC 37 § 793(d)) provides for criminal prosecution and punishment of anyone who comes into possession of certain government documents and “willfully retains [them] and fails to deliver it on demand to the officer or [government] employee of the United States entitled to receive it. . . shall be fined under this [law] or imprisoned not more than ten years, or both. “
(Significantly, violating this statute can disqualify the guilty party from holding federal office.)
The documents at issue need to be ones that the person has reason to believe could harm the U.S. national defense if disclosed to foreign governments or their agents. The documents Mr. Trump retained are reported to have related to some nations’ nuclear capabilities. Without more details, it’s not easy to say if the documents would fall under that description.
How Does the DOJ Suspect Mr. Trump Obstructed Justice by Keeping Documents?
The federal law criminalizing obstruction of a federal criminal investigation (18 U.S.C. 73, 1510) prohibits anyone from impeding or obstructing a lawful criminal investigation being conducted by the federal government and faces a penalty of up to 5 years in federal prison.
The theory under which this crime would apply to the Mar-a-Lago investigation is that the FBI was investigating the unlawful retention of government records when Mr. Trump impeded the government’s locating and recovering the documents as well as obstructing the FBI’s investigation into how the documents came to be at Mar-a-Lago. Who took them? Who transported them? These questions could result in an additional charge of conspiracy to obstruct justice.
What’s Unlawful Removal of Federal Records?
The federal statute 18 USC §§ 641 and 2071 provide for violators to be fined and imprisoned for up to 3 years in prison, or both, and “disqualification from holding any office under the United States.”
What do they criminalize? In brief, a person commits this crime by having custody of any government document and “willfully and unlawfully. . . removes” it from its proper place.
Notice that the law requires “willful” removal. In criminal law, the term “willful” has great significance. It requires proof that the alleged document remover took the document intentionally with the knowledge that it was unlawful. In other words, Mr. Trump may have the defense that he did not realize it was a crime to take the documents when he took them.
Without the required criminal intent, what we call “mens rea,” this crime cannot be proven by the prosecution.
The Same Law Applies to Presidents and Paupers
What we learn clearly from the Mar-a-Lago search warrant episode is that the same law applies to the powerful and the powerless. In our real life, this proposition is not always demonstrated. We know that criminal defendants who are immensely rich or powerful often either escape indictment entirely or they can hire the most elite teams of lawyers with no limit on the size of the attorney’s fees.
In our justice system, sometimes money and power can affect the way justice is dispensed. But no one experiences that at the law firm of Stechschulte Nell, Attorneys at Law in Tampa. Our lawyers provide the highest quality criminal defense available anywhere, with decades of courtroom experience and deep knowledge of Florida and federal law and criminal procedure.
Learn More > How to Obtain Your Search Warrant Affidavit
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