On Monday, former President Donald Trump’s home at Mar-a-Lago was searched in an FBI raid reportedly as part of an investigation into potentially illegally taken classified documents.
It is not every day that a federal search warrant gets executed at the residence of an ex-president and potential future president. The implications are enormous. So too must have been the probable cause.
Every search warrant contains an affidavit by a law enforcement officer who must swear to the facts known as probable cause. The affidavit and probable cause are reviewed by a judge before authorization to execute the search warrant is granted.
Central to the affidavit will be a summation of evidence by the affiant that will be reflective of some criminal violation of a federal statute by the subject of the search warrant. The affiant will outline the criminal violation believed to be committed and particularize the evidence anticipated to be located within the environs defined in the search warrant affidavit—in this case evidence against Trump that might be found at Mar-a-Lago (notably, the former president’s safe was searched). The expected evidence will be deemed as hopefully dispositive proof of the criminal violation referenced.
The affidavit for a search warrant must particularize the federal statute that law enforcement believes has been broken by the subject. In this case, it has been reported that it is likely that the statute controlling the handling of classified documents is at issue. The federal agent who is the affiant must be able to articulate to a judge “probable cause” that evidence will be found probative of a criminal violation and this probable cause must be “fresh” meaning that evidence was likely observed recently.
So whom might have made that observation? And who corroborated it?
Based on what might be needed to conduct this search, it seems likely that federal investigators have a source of information that very recently observed “classified documents” that have been mishandled—meaning the documents would have been observed in Mar-A-Lago and not where they should be, safely ensconced in the National Archives. This source of information would likely have to be someone in the ex-president’s circle who would have been able to recognize the markings of classified documents on papers at Mar-a-Lago itself. It’s less likely that a Mar-a-Lago employee, who might not recognize such documents, would be able to convince a judge to authorize the search over such documents. Someone who used to serve the ex-president in the White House and is used to working with classified documents, however, might make for a very compelling source of information. Though a Mar-a-Lago employee might serve as a valuable corroborating witness as to the existence and location of such documents. (It’s also possible that Trump acknowledged to the government that the documents were in his residence but refused to turn them over.)
In sum, it seems very plausible that someone heretofore considered loyal by the ex-president is now serving as a key inside witness against him.
Who might that be? It would have to be someone who would have had the ability to observe documents that might show the elements of a crime at Mar-a-Lago recently. And it would have to be someone with credibility. Trump must be throwing more ketchup around the golden walls and toilets of his luxurious Trump Tower residence trying to figure out who it could have been.
Why not just serve a subpoena if you are the FBI?
The affidavit for the search warrant would address this issue. The execution of a search warrant is considered to be an extraordinary investigative technique to be used only when there is no other means to obtain the evidence. That means the affiant would have to outline what investigative techniques were used to date in attempting to obtain the evidence and just why a search warrant is the only means left. In other words, it is probable that the evidence was already requested/and or subpoenaed and not turned over. There may well be evidence that Trump withheld the evidence or concealed the existence of the evidence and the affiant has been made aware and has conveyed this in the affidavit.
It should be noted that concealment of evidence or the knowing withholding of requested documents may very well frame additional federal charges, which raises another point.
While the affidavit for the search warrant has to pinpoint a specific federal charge being investigated, once the search warrant is approved and executed should evidence of other federal crimes be found that evidence can be used to prosecute additional crimes, not just the criminal behavior alluded to in the affidavit.
So when looking for classified docs in Mar-a-Lago, should FBI agents come across evidence that would support charges of obstruction of an official proceeding, or conspiracy to defraud the United States with regard to Trump’s involvement in the January 6 insurrection—charges previously indicated Trump had committed by the findings of a federal judge—that evidence would be admissible in court. And it won’t matter how much Trump screams “fishing expedition” or “witch-hunt”—the government is entitled to the evidence. (Of course, Trump is entitled to fundraise off the entire spectacle and has already begun.)
Trump issued a statement noting that the FBI broke into his safe in Mar-a-Lago and he didn’t sound too happy about it. But that would have been totally appropriate for federal agents when executing a search warrant. A safe is a likely repository for sensitive documents and the government is highly likely to persevere in a suppression hearing with regard to the safe and whatever documents seized from within it.
What do rich people secure in a safe?
Sensitive documents that they do not want prying eyes to review. In this case it may be classified documents stamped that should have been transferred to the National Archives or other appropriate secure governmental repositories. But the feds are likely to confiscate whatever documents they find in the safe, bring it back to the office after inventorying it, and then analyze it.
Some people keep documents of their investments in safes. Trump has publicly disclosed ownership of hundreds of shell companies that comprise the Trump Organization. Could the safe include those records? What about the potential of shell company ownership that may not have been disclosed? And how about the possibility of undisclosed bank accounts in support of shell companies or secret investment partnerships with undisclosed partners around the world? The media has written about mysterious activities around Trump’s Turkish business flirtations. There is the enduring mystery as to how Trump could have afforded to buy and maintain his famous Scottish golf resort. Trump’s son Donald Jr. in 2008 said that Russian money was “pouring in” when he was talking about Trump property in Dubai.
Who are Trump’s contacts with regard to his foreign business investments and how does he contact them? Where would such a list be? How about telephones earmarked for one purpose or one contact? Recall the schedule of fringe benefits Trump maintained separately with regard to some of his employees in the Trump Organization which evidenced alleged fraud by the Trump Organization. If they exist, where might any other off-book schedules be kept?
Where does Trump maintain a copy of his will? Would attached schedules delineating his net worth be present? Do they align with the annual financial statements Trump has been compelled to disclose?
The search warrant executed at Mar-a-Lago opened Pandora’s Box with regard to Donald Trump’s potential criminal liability. This search warrant was likely reviewed up and down the supervisory ladders at both the FBI, whose present director was hired by Trump, and the Department of Justice, where the attorney general himself likely reviewed the search warrant affidavit before signing off and sending it to a federal judge to review. There is also just a little more than 90 days before the midterm elections, which may have presented a compelling factor in the timing of this search warrant. Will we learn more about that timing?
Finally, what often happens in my experience in supervising federal investigations—one search warrant leads to another.