Local law enforcement officers are seen in front of former President Donald Trump’s home at Mar-a-Lago in Palm Beach, Fla., on Tuesday.
Giorgio Viera / AFP via Getty Images
hide captions
switch captions
Giorgio Viera / AFP via Getty Images
Local law enforcement officers are seen in front of former President Donald Trump’s home at Mar-a-Lago in Palm Beach, Fla., on Tuesday.
Giorgio Viera / AFP via Getty Images
Monday FBI raid at the home of former President Donald Trump – including his safe, according to Trump – raised eyebrows and questioned what the search might indicate about a possible criminal investigation. to the former president and those around him.
According to Christina Bobb, an attorney representing Trump, the raid involved presidential records that Trump deleted from the White House when he left office in January 2021.
Bobb said in a Tuesday interview on Dinesh D’Souza audio files. The search took about 10 hours, she added.
The execution of the search warrant represents a significant escalation in the investigation that the Justice Department been working silently for months.
Read on to know more about what the raid told us about the legal questions at stake.
What files is the FBI looking for?
We still don’t know exactly what the FBI recovered during the raid. But the search can be related to 15 boxes of presidential documents have been moved from Mar-a-Lago earlier this year by the National Archives and Records Administration.
Some of the recovered materials were subsequently sorted, Attorney General Merrick Garland confirmed in February. The files are said to include correspondence between Trump and North Korean leader Kim Jong-Un, along with a letter to Trump written by outgoing President Barack Obama.
At the time, NARA said that representatives for Trump were continuing to “search for additional Presidential records belonging to the National Archives.”
It is possible that Monday’s raid was conducted to recover those remaining documents.
“The Department of Justice is saying, as I read this, ‘We’re fed up. We don’t trust you to respond. You’re playing a game with us, and we’re going in and we’re taking what you didn’t return, that you promised to return,'” Stephen Gillers saysa law professor at New York University.
What does the FBI need to get a subpoena?
In short, a search warrant indicates that federal authorities have evidence of criminal activity taking place at the location they intend to carry out the search. Subpoenas are often used in situations where authorities believe a subpoena will not have any effect. It is not a crime in itself.
In general, federal agents seeking subpoenas must provide an affidavit containing details of exactly what material they expect to seize during a search and why they believe it is located in the subpoenaed location. A judge reviews the affidavit and signs the subpoena if he or she believes the details provided by the agents pass the legal due diligence.
“We know that this is not just a bunch of FBI agents who wake up one day and decide to go have some fun,” Steve Vladeck saysa law professor at the University of Texas.
“The affidavit that accompanies the subpoena application is as specific as possible,” Vladeck said. “I suspect that for this particular search of former President Trump’s home, the affidavit is probably quite specific.”
Importantly, the subpoena itself usually contains much less information than the affidavit needed to obtain it. The affidavit is usually not made public. A subpoena may not say what the suspect is, or who is suspected of committing the crime.
Who will have to log out on this search?
On paper, the standards for federal search warrants for former presidents are the same for ordinary citizens.
But realistically, such a politically sensitive search would have to be approved at the highest levels of the federal justice system, experts agree.
In addition to the federal judge who approved the order, the raid may need the signature of the FBI director himself, Christopher Wray, who was appointed by President Trump in 2017. Also, because of the sensitivity, It is likely that Attorney General Garland was involved. Spokespersons for Garland and Deputy Attorney General Lisa Monaco declined to comment.
Gillers said: “Garland is a very cautious person.
The White House said it was not involved in the raid. “The President and the White House learned of this FBI raid from public reports. We knew just as the American public did yesterday. We had no prior notice of the operation.” Spokesperson Karine Jean-Pierre said at a news conference on Tuesday.
What crimes can be investigated?
The DOJ has not yet commented on the raid or the investigation. Experts have pointed to at least two possible issues under criminal investigation.
One would be federal laws regarding the handling of classified documents, such as some recovered from Mar-a-Lago earlier this year.
“It’s a very serious matter when information like this is mishandled,” said former federal prosecutor Brandon Van Grack. told NPR in February, indicating federal law prohibits the unauthorized deletion and storage of classified documents. “On the surface, if these are top secret documents and they’re not declassified, they’ve been mishandled.”
The second issue is the Presidential Records Act, a 1978 law that requires presidents to preserve all relevant historical documents from their time in office – everything from phone diaries and summaries. turn off national security to emails and handwritten notes – and then hand them over to the National Archives. and Case Management after they leave office.
“Most presidents understand the value of creating and preserving their legacy, so they show extra care (even if it’s with a keen editorial eye) in preserving records.” profile appropriately,” said Lauren Harper, director of public policy and open government affairs at National Security. Archive, a nonprofit that advocates for public access to government information, said in an email.
“It’s quite simply that there has never been a president who didn’t care about how their records were handled, making removal and subsequent search unnecessary before,” she said.
Former President Donald Trump speaks at the Conservative Political Action Conference (CPAC) in Dallas on Saturday.
Brandon Bell / Getty Images
hide captions
switch captions
Image Brandon Bell / Getty
Former President Donald Trump speaks at the Conservative Political Action Conference (CPAC) in Dallas on Saturday.
Image Brandon Bell / Getty
Are there special legal protections for former presidents?
In short, no. While there are important legal questions about whether a sitting president can be impeached, the same cannot be said for former presidents.
“He really is like an ordinary citizen, except for the big political implications and those cannot be underestimated here,” Kimberly Wehle saysa former federal prosecutor who now teaches law at the University of Baltimore Law School.
And Trump is not simply a former president – he is considering another run for the office in 2024, making him a possible opponent for Biden, should he run again. . The optics of an incumbent president’s administration cannot be ignored, experts say, when it comes to accusing opponents.
During the 2020 campaign, Biden himself acknowledged the political consequences of such an indictment. “I think it’s a very, very unusual thing and maybe not very – how can I say? – Good for democracy when it comes to prosecuting former presidents,” he said in May. August 2020.
On Tuesday, the White House reiterated that it is not involved in criminal investigations conducted by the DOJ. Jean-Pierre said: “The Department of Justice conducts investigations independently and we leave all law enforcement matters to them.
Is this unprecedented?
Basically, yes. The residence of a former president has never been subject to a federal search warrant.
Wehle said the raid was “a very big deal in history”. On the other hand, she said, “there is no precedent for moving documents out of the White House in this way.”
(A former president has faced criminal investigation. After President Richard Nixon resigned amid Watergate scandal, he faces the possibility of federal indictment and trial. Instead, President Gerald Ford pardoned him, effectively ending the investigation.)
What could this mean for Trump’s re-election prospects?
Hard to say.
Legally, the Constitution does not prevent a candidate from running for office who has been indicted or convicted of most crimes. That could include mishandling classified information or violating the Presidential Records Act.
A possible penalty for “intentional and illegal” mishandling of public records can be found in Section 2071 of the United States penal codethis calls for anyone found to have done so to be “deprived of any office of the United States.”
But there are questions about whether that provision can bypass legal regulation when running for president. The Constitution specifically sets forth the criteria for becoming president and offers impeachment as a remedy to bar people from holding the office of president. Some legal experts have argued that Congress does not have the authority to change those statuses. The question was not tested in court.
(The Constitution prohibits those who “participate in insurrection or rebellion” from seeking federal office, but there are currently no That sign is what’s at stake with Monday’s FBI search.)
Politically, the raid took place when The January 6 hearing did some damage to the reputation of the former president. Some Republicans have expressed displeasure over the possibility that Trump could run in 2024and polls show many Republican voters are ready for an alternative.
On the other hand, Trump remains the biggest name in Republican politics. His endorsement was sought by primary candidates across the country, and in some places it seems to have made a difference.
After Monday’s raid, many Republicans are rallying around Trump. Some have demanded that Wray and Garland face congressional questioning. And House Minority Leader Kevin McCarthy committed to investigating the actions of DOJ Should Republicans retake the House in November.
NPR’s Bill Chappell and NPR’s Jason Breslow contributed additional reporting.
