It’s not an easy task to secure a federal search warrant against a Former US President.
Legal experts told Insider that agents must prove an extremely high degree of probable cause.
“Trump is in deep legal trouble,” former federal prosecutor Gene Rossi told Insider.
For months, as new details emerged about the end of the Trump administration, the Justice Department confronted criticism over its slow, cautious approach to investigating the former president.
Again and again, Attorney General Merrick Garland met that criticism with what has almost become his personal mantra: The Justice Department, he says, will follow the “facts and the law.”
On Monday, the facts and the law led FBI agents to former President Donald Trump’s home.
Trump confirmed Monday that federal agents had executed a search warrant at his South Florida estate, Mar-a-Lago, in a search multiple news outlets later reported was related to whether he mishandled classified government documents.
Regardless of its focus, legal experts quickly reached a consensus about the raid: A pile of evidence must have backed up the warrant authorizing the search.
“There’s every reason to think that there’s a plus factor in the quantum and quantity of evidence that the government already had to support probable cause in this case, knowing that they would be besieged with criticism in some quarters that this is politically motivated,” said David Laufman, a former top official in the Justice Department’s national security division who prosecuted cases involving the alleged mishandling of classified documents.
“If I were a senior department official who reviewed this prior to pulling the trigger on presenting an affidavit to a magistrate judge, I would’ve wanted a sufficient quality and quantity of evidence that was so pulverizing in its effect to simply neutralize any arguments to the contrary,” said Laufman, now a partner at the law firm Wiggin and Dana LLP.
Indeed, for a deliberate Justice Department keen to turn the page from the politicization of the Trump era, the raid of Mar-a-Lago likely required reviews at the highest levels and convincing evidence supporting a finding of probable cause, legal experts said.
“I cannot imagine the amount of probable cause set forth in a search warrant’s supporting FBI affidavit of Trump’s Florida home,” said Gene Rossi, a former federal prosecutor from Northern Virginia. He added in an email to Insider that “the number of review levels for this [search warrant] must have been enormous, including by Trump’s FBI appointee Christopher Wray.”
The search unfolded months after the National Archives confirmed, in February, that many records left behind by Trump had been torn and taped back together — and that the former president had taken boxes of documents to his resort that the federal government needed to retrieve. Earlier on Monday, Axios published photographs — obtained by the New York Times’s Maggie Haberman — showing documents in a toilet bowl that White House staff suspected were flushed by Trump.
During his time in office, Trump developed a reputation as a notorious destroyer of documents and displayed a penchant for ripping presidential documents and leaving them for staffers to patch up, according to a report from Politico. Historians grew concerned over his tenure that his presidential records would be poorly preserved or destroyed entirely — potentially violating the Presidential Records Act.
The 1970s law requires presidents and White House staff to preserve official documents and communications including gifts received in office, letters, emails, text messages, and social media posts, and turn those items over to the Archives at the end of a president’s term.
“Trump is in deep legal trouble,” Rossi said.
For Trump, the inquiry into the potential mishandling of classified material represents just one of several areas of legal risk. Trump, who was at the Trump Tower in New York City during the search, is also facing scrutiny over his efforts to overturn his loss in the 2020 election to Joe Biden. Meanwhile, New York Attorney General Letitia James is investigating his business, an inquiry she said has uncovered evidence that the Trump Organization engaged in”fraudulent or misleading” practices.
In response to the search, Trump alleged Monday that the move resulted from “prosecutorial misconduct” and the “weaponization of the Justice System.”
“Such an assault could only take place in broken, Third-World Countries,” Trump said in a prepared statement. “Sadly, America has now become one of those broken Countries, corrupt at a level not seen before.”
Trump was expected to make such claims in the event of heightened scrutiny or criminal charges. His assertion that Mar-a-Lago was “under siege, raided, and occupied by a large group of FBI agents” drew a rebuke from Trump’s former personal attorney-turned-critic Michael Cohen.
“It’s never good when the FBI raids your property,” Cohen told Insider. Cohen knows that personally. In 2018, the FBI raided Cohen’s Rockefeller Center office and his nearby Manhattan hotel room.
Trump lashed out angrily then, too, similarly likening the FBI’s raid of Cohen’s locations to a break-in.
“Despite Donald’s repetitive claims that the FBI agents knock down doors and ransack properties, it is another lie as they are professional and courteous,” Cohen said Monday night, adding that Trump “knew that they were coming for me.”
An FBI spokesperson declined to comment on the search.
In an email to Insider, former US attorney Barbara McQuade stressed that — for the FBI to obtain a search warrant — it would have needed to satisfy a federal judge that there was probable cause a specific crime had occurred at Mar-a-Lago.
“Search warrants,” she said, “usually come toward the end of an investigation because they require a showing of probable cause and because they tend to tip off the suspect that they are under investigation.”
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