Few people ever end up on the receiving end of an FBI search warrant — even less escaping criminal charges.
The fact that Donald Trump is now among the former provides the strongest indication yet that he may soon face the latter.
Monday’s search for the former president’s Mar-a-Lago property in Florida was undoubtedly one of the most significant, sensitive and politically explosive actions ever undertaken by the US Department of Justice and the FBI. It’s one of the few times the DOJ has ever investigated a president. And it’s an action that likely indicates that the FBI and prosecutors had specific knowledge of both a definable crime and the evidence to back it up.
The actual search warrant, which lists specific crimes under investigation, has not yet been released. However, according to Monday night’s news reports, the search was centered on questions about a number of boxes of classified documents Trump had taken from the White House to his Florida mansion after he left the presidency.
While it can take months to learn more about the underlying investigation, the fact that the FBI launched such a high-profile search already tells us a lot about the state of the Justice Department’s case.
These are the five big takeaways.
Probable cause was clear
Federal search warrants are not fishing expeditions. The FBI’s lawful search of a 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 Attorney General. It’s hard to imagine how high the bar of probable cause must have been for the Bureau to launch such a politically sensitive search. Ironically, the scandals endured by the FBI from past Trump investigations have likely raised the bar for probable cause and approval from the higher levels of the department.
One of the biggest scandals the FBI and Justice Department have endured in recent years has been the messy (and ultimately illegal) paperwork surrounding a FISA warrant filed during the 2016 presidential campaign targeting Trump aide. Carter Page. Two of the four arrests used in that case were later invalidated and an FBI attorney pleaded guilty to falsifying some of the underlying evidence and paperwork about probable cause. A nearly 500-page Inspector General’s report disproves the Bureau’s handling of FISA warrants, which have long been considered some of the most thorough and careful court records and are believed to be held back by careful evidence reviews known for as the ‘Woods procedures’. It turned out that the FBI had omitted key questions about the underlying evidence from the Page warrant application and provided misleading characterizations about other evidence.
That scandal led to internal reforms by the FBI and the Department of Justice that would have scrutinized the Mar-a-Lago search warrant even more closely — and set the bar for probable cause so high, the evidence so crystal clear that it is likely that the Department of Justice already believes that it has sufficient information to initiate criminal proceedings.
A judge signed the search
A legally authorized search warrant is an important part of the US Constitution’s system of checks and balances. It requires the consent of two of the three branches of government, with the executive branch (the DOJ and the FBI) getting the approval of the judiciary. In the case of Trump’s search, after agents and prosecutors collected their evidence, an independent federal magistrate had to agree that a crime had likely been committed and that there was specific evidence in Mar-a-Lago that would affect are on the crime.
Notably, this marks the second time this year that a federal judge has agreed that Trump is at least borderline on a felony. As the Jan. 6 congressional committee has repeatedly noted, a federal judge this spring agreed with his assessment that Trump “more likely than not” committed a crime amid his efforts to undo the 2020 election.
This isn’t just about Trump taking classified documents
One of the most important questions in an investigation is the determination of motive, summarized by the Latin phrase cui bonoor Who benefits? Of course, Trump’s taking home classified documents is technically a crime. But as national security reporter Zach Dorfman points outit’s barely serious enough to prompt the FBI to raid the home of a former president.
The entire safety rating system exists to serve the presidency. The president is the only official in the US government with the ability to unilaterally release any piece of information. (Trump famously wielded this power while in office by tweeting a highly classified satellite image of an Iranian facility). And while classified documents theoretically contain highly sensitive information that would harm national security if released, the reality is that many classified documents are not that sensitive.
