There are very few people ever get an FBI search warrant — much less end up avoiding criminal charges.
The fact that the former president of the United States is now among the former suggests that Donald Trump may soon face the latter.
Monday’s search of Trump’s Mar-a-Lago property in Florida was certainly one of the most significant, sensitive and politically explosive actions ever undertaken by the US Department of Justice and the FBI. This is one of the few times the Justice Department has investigated the president. And it’s an action that most likely indicates that the FBI and prosecutors had specific knowledge of both the cognizable crime and the evidence supporting it.
The actual search warrant, which will list the specific crimes under investigation, has not yet been released. However, according to news reports late Monday, the search focused on questions about a number of boxes of classified documents that Trump moved from the White House to his Florida mansion after leaving office.
While it may take months to learn more about the underlying investigation, the fact that the FBI has launched such a high-profile search tells us a lot about the state of the Justice Department’s case.
Here are five important takeaways.
The probable cause was clear
Federal search warrants are not fishing expeditions. A legally authorized FBI search of the former president’s primary residence would have been approved and overseen at the highest levels of both the FBI and the Department of Justice, likely including both the deputy attorney general and the attorney general. It’s hard to imagine how high the bar of probable cause would have to be for the Bureau to launch such a politically sensitive search. Ironically, the scandals the FBI has endured from past Trump investigations likely raised the bar for probable cause and buy-in from the department’s top echelons even higher.
One of the biggest scandals to hit the FBI and DOJ in recent years was the sloppy (and ultimately illegal) documentation surrounding the FISA warrant issued during the 2016 presidential campaign against Trump aide Carter Page. Ultimately, two of the four warrants used in the case were later invalidated, and an FBI lawyer pleaded guilty to falsifying some of the key evidence and probable cause documents. The nearly 500-page inspector general’s report detailed the Bureau’s handling of FISA warrants, long considered among the most thorough and thorough judicial filings and believed to be supported by a careful analysis of evidence known as the “Woods procedure.” .” As it turns out, the FBI omitted key questions about key evidence in the warrant application for Page and offered misleading characterizations of other evidence.
That scandal led to internal FBI and Justice Department reforms that would have made the search warrant at Mar-a-Lago subject to even greater scrutiny—and ensured that the bar for probable cause would be so high and the evidence so clean that it was likely , the Justice Department already believes it has enough information to open criminal charges.
The judge signed off on the search
A legally authorized search warrant is an important part of the US Constitution’s system of checks and balances. It requires the agreement of two of the three branches of government, resulting in the executive branch (the Justice Department and the FBI) getting the judicial branch’s buy-in. In the case of the search of the Trump property, once the agents and prosecutors gathered their evidence, an independent federal magistrate would have to agree that a crime had probably been committed and that Mar-a-Lago had concrete evidence that would be relevant to the crime.
It should be noted that this is at least the second time this year that a federal judge has agreed that Trump was at least complicit in a crime. As the congressional committee repeatedly noted on Jan. 6, a federal judge agreed with his assessment this spring that Trump “likely” committed a crime during his efforts to overturn the 2020 election.
It’s not just that Trump is taking classified documents
One of the most important questions in the investigation is the establishment of motive, which is summed up in the Latin phrase cui bono. Who benefits? Of course, Trump taking home classified documents is technically a crime. But as national security reporter Zach Dorfman showsit’s hardly a serious enough offense to prompt the FBI to raid the former president’s home.
The entire security classification system exists to serve the presidency: the president is the only official in the US government who has the power to unilaterally declassify any piece of information. (Trump famously exercised this power while in office by tweeting a top-secret satellite photo of an Iranian facility). Also, while classified documents theoretically contain highly sensitive information that could harm national security if released, in reality many classified documents are not that sensitive.
