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Credit: Bill Perry via Adobe
Context of the Search Around May 6, 2021, the National Archives and Records Administration (NARA) realized that some items from former-President Trump’s time in office were not handed over before Trump left office. Some of these documents included letters between Trump and North Korean dictator Kim Jong Un, and the altered map of Hurricane Dorian, which infamously featured an alteration via Sharpie marker. Gary Stern, a lawyer from NARA, contacted an individual who had been designated as the President Records Act point of contact, seeking information regarding the missing items.
NARA continued making multiple requests over several months for documents it still believed to be missing. Around late December 2021, a Trump representative informed NARA that 12 boxes of documents that should have been turned over at the end of Trump’s presidency were found at Mar-a-Lago. On January 18, 2022, NARA received 15 boxes of presidential documents stored at Mar-a-Lago, of which 14 contained classified documents. In total, there were 184 documents marked as “classified,” including 67 marked as “confidential,” 92 “secret,” and 25 “top secret.” Additionally, agents inspecting the boxes noted special markings suggesting the documents contained information from highly sensitive human sources and electronic “signals” authorized by a FISA court.
On February 9, 2022, the Special Agent in charge of NARA’s Officer of the Inspector General sent a referral to the Department of Justice (DoJ) after an internal review of the boxes revealed they contained classified documents. NARA asked the DoJ to investigate whether Trump’s handling of these classified documents violated the Presidential Records Act of 1978. The Presidential Records Act of 1978 requires all documents created by a sitting president to be turned over to NARA after their presidency; however, a violation does not prompt charges. The Federal Bureau of Investigation (FBI) subsequently opened a criminal investigation following NARA’s referral to the DoJ.
On May 11, 2022, the DoJ issued Trump a subpoena for additional records. Three FBI agents and a DoJ attorney went to Mar-a-Lago to collect more material offered by Trump attorneys Christina Bobb and Evan Corcoran in response to the May 11 subpoena. The government coalition was handed a “single Redweld envelope, double-wrapped in tape” containing 38 classified documents, including 5 documents marked “confidential,” 16 documents marked “secret,” and 17 documents marked “top secret.” During the visit, Christina Bobb signed a letter attesting that all documents requested by the subpoena issued to Trump had been turned over to the DoJ “to the best of her knowledge,” following a “diligent search” of the boxes taken from the White House. The government coalition also inspected the basement where the documents were being stored, according to Corcoran, and noticed additional boxes. As per Trump’s attorneys, the FBI and DoJ officials were prohibited from inspecting the boxes.
Following the June 3 meeting, an individual familiar with the classified documents informed the FBI that there might be more boxes containing classified documents at Mar-a-Lago. Following this new-found information, Trump received a subpoena for surveillance footage from cameras at Mar-a-Lago on June 22, 2022, for footage from January 10 onward. According to an unredacted affidavit, Mar-a-Lago staff turned over a hard drive on July 6, 2022. In the surveillance footage, Walt Nauta, a White House culinary employee from 2012-2021, was seen moving boxes, at the direction of Trump, from the storage room to a different location before and after May 11 subpoena. On August 5, 2022, the DoJ filed for a search and seizure warrant for Mar-a-Lago, citing additional classified documents that remained on the property. Efforts were likely taken to obstruct the government’s investigation into handling the classified documents.
How the Search Warrant was Obtained
The 4th Amendment states:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probably cause supported by Oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized.
In U.S. v. Ventresca, the Supreme Court affirmed that the preferred process for law enforcement to search a private individual’s premises under the 4th Amendment is to obtain a search warrant. 380 U.S. 102, 106 (1965). As stated in the 4th Amendment, a warrant grant requires probable cause, as provided via an affidavit submitted before the court. Probable cause is based on the fair probability on which reasonable, prudent people act. Fla. v. Harris, 568 U.S. 237, 244 (2013). Probable cause is a higher standard than reasonable suspicion, and law enforcement must show: (1) the material sought is “seizable by virtue of being connected with criminal activity” and (2) the material “will be found in the place to be searched.” U.S. v. Church, 823 F.3d 351, 355 (6th Cir. 2016).
Furthermore, the warrant must specify, with particularity, the place(s) to be searched and the persons to be seized. Groh v. Ramirez stated that a search based on a warrant without a proper description of the items to be seized was “plainly invalid.” 540 U.S. 551, 557 (2004). Additionally, the Supreme Court in U.S. v. Grubbs established that only two items need to be particularly described: the place to be searched and the person(s) or thing(s) to be seized. 547 U.S. 90, 97 (2006).
Federal Rules of Criminal Procedure (FRCP) also governs when law enforcement seeks a warrant. FRCP Rule 41 covers searches and seizures by outlining the procedural steps for how law enforcement goes about obtaining a search warrant. FRCP Rule 41 mirrors the requirements outlined in the 4th Amendment and subsequent case decisions while providing additional requirements for law enforcement. The notes of Rule 41 set forth that law enforcement may prove probable cause through a written affidavit or, if reasonable given the circumstances, a sworn testimony; both reflect the 4th Amendment’s “oath or affirmation” requirement. Rule 41(b)(1) provides that law enforcement must provide the affidavit or testimony to a judge in the district where the property is to be searched (proper venue).
'On August 5, 2022, the FBI was granted a search and seizure warrant by Judge Bruce Reinhart, a judge from the Southern District of Florida, to search Mar-a-Lago at 1100 S Ocean Blvd, Palm Beach, FL 33480. The warrant was to be executed between 6 a.m. and 10 p.m. and no later than August 19, 2022.
Per FRCP Rule 41(b)(1), the warrant was presumably filed in the Southern District of Florida, which is the proper venue. Furthermore, Attachment A of the warrant describes with particularity the property to be searched as “a mansion with 58 bedrooms, 33 bathrooms, on a 17-acre estate.” More specifically, the warrant states that the 45 Office, all storage rooms, and all other storage rooms or areas used or available to former-President Trump and his staff which could store boxes or documents were to be searched. The warrant excluded areas occupied by third parties (Mar-a-Lago members), such as guest suites, from being searched.
The warrant specified “physical documents and records constituting evidence, contraband, fruits of crime, or other items illegally possessed in violation of 18 U.S.C. §§ 793, 2071, or 1519…” as things which were to be seized by the F.B.I. in their search. The warrant also includes three Title 18 federal laws, which provide insight into the crimes for which former-President Trump is being investigated. Section 793 is the Espionage Act of 1917, which relates to gathering, transmitting, or losing defense information; Section 1519 is the Sarbanes-Oxley Act of 2002, which deals with the destruction, alteration, or falsification of records in federal investigations and bankruptcy; and Section 2071, which covers the concealment, removal, or mutilation of documents, and if convicted, would bar the convicted from holding public office.
The three Title 18 federal laws included in the warrant are significant as it provides context for the criminal activity the FBI is investigating. As part of the two-prong test stated in U.S. v. Church, the material sought via a warrant must be connected to criminal activity. 823 F.3d 351, 355 (6th Cir. 2016). Former President Trump having classified documents, in violation of the three Title 18 federal laws, provides the link between the thing sought (classified documents) and the criminal activity.
On September 13, 2022, the DoJ released a heavily redacted copy of the affidavit used in proving probable cause. Although the DoJ did not release the complete affidavit submitted by the FBI, the few parts that were available to be read indicated the FBI proved probable cause by showing Trump and his lawyers admitting to having classified documents and handing over said documents back over four months. Although redacted, the tipping point within the affidavit was the FBI agents being unable to inspect the additional boxes they noticed in a storage area.
Aftermath of the Search
On August 8th, 2022, according to the warrant, FBI agents entered Mar-a-Lago and executed their search of the premises for the materials specified in the warrant. They searched the storage room designated in the warrant, breaking the room’s padlock to enter Trump’s “45 Office” and personal residence. After the search, the FBI left with over 11,000 government documents. Of those documents, 54 were marked as “secret,” 31 were marked as “confidential,” and 18 were marked as “top secret.” They also recovered 48 empty folders, which contained classified information, and 11,179 documents and photos without classification. On top of this, 520 pages of the documents recovered contained information that appeared to potentially be privileged material.
The documents contained details and descriptions of various sensitive activities from Trump’s time in office. Some of the most striking included details of various special-access programs. Special-access programs require special clearances on a need-to-know basis to access, with clearance only able to be granted by the President, a few members of the Cabinet, or a near-Cabinet-level official. These documents are traditionally kept in a secure, compartmentalized information facility with a designated control officer who keeps careful tabs on their location. Additionally, the documents contained classified information regarding other foreign governments. If revealed, such information can potentially expose the U.S.’ intelligence-gathering capabilities and methods that it would otherwise prefer to keep secret. The documents contained information on an unrevealed foreign government’s military defenses, including its nuclear capabilities; information regarding Iran’s missile program; and U.S. intelligence operations involving China.
Current Status of Litigation as a Result of the Search
On August 22, 2022, Trump filed a motion in the Southern District of Florida seeking the appointment of a special master to review everything seized for documents not covered by the warrant and potentially privileged material under attorney-client privilege or executive privilege. Trump also asked for a detailed receipt of all documents taken in the search. Trump’s case was assigned to Judge Aileen Cannon, a Trump appointee. On August 23, 2022, Judge Cannon ordered Trump’s legal team to refine their argument, to which Trump’s legal team cited Armstrong v. Bush, 924 F.2d 282 (D.C. Cir. 1991) to state that the president has complete control over the administration’s records under Presidential Records Act. Judge Cannon has jurisdiction to appoint a special master.
On August 27, 2022, Cannon stated she was leaning towards approving Trump’s request for a special master, for the DoJ to provide a detailed receipt of everything seized, and for the DoJ to provide the status of the review of the items seized in the search, including privileged information. On August 29, the DoJ filed a brief stating that the review of materials by the FBI’s filter team had already been completed. This also confirmed that the intelligence community was reviewing the classified information to assess the damage done to national security due to Trump's possession of these documents.
The DoJ followed up with an additional brief responding to Trump’s request for a special master. The DoJ claimed that Trump “explicitly prohibited government personnel from opening or looking inside any of the boxes that remained in the storage room” and that Trump lacked standing over presidential records since they are “government property under Presidential Records Act.” The DoJ asked Cannon to reject Trump’s executive privilege claim as Trump “cited no case… in which executive privilege has been successfully invoked to prohibit the sharing of documents within the Executive Branch.”
On August 31, 2022, Trump’s legal team filed a reply brief, claiming discovery of classified documents should have been anticipated due to the nature of presidential records, as those records frequently contain classified information. Trump also claimed the storage room where the documents were found was a “secure setting,” as a padlock secured it. Trump further claimed that NARA should have asked for Trump’s cooperation rather than going to the DoJ. Lastly, Trump rejected the DoJ’s claim that they properly filtered out privileged documents and again asked for the appointment of a special master.
In a hearing before Judge Cannon on September 1, 2022, the DoJ stated the FBI had already reviewed the 520 pages and found Trump had no right to keep them or claim executive privilege over them. Trump argued the government misinterpreted the Presidential Records Act, stating Trump was allowed to designate records as “personal documents” while president.
Following the hearing, Judge Cannon ordered the DoJ to release a detailed receipt of the materials seized at Mar-a-Lago. The receipt was unsealed on September 2, 2022, and provided a list that showed classified documents were mixed with miscellaneous documents, photographs, news clippings, “gift items,” clothing items, and a book. The receipt also listed a box found to contain 43 empty folders with a “classified” banner; 28 empty folders labeled “return to Staff/Military aide;” and 24 government documents marked as “confidential,” “secret,” or “top secret.”
On September 5, 2022, Judge Cannon ordered the DoJ to halt their review while simultaneously allowing the intelligence community to continue to assess the potential harm. Judge Cannon also announced the grant of a special master to review privileged documents. Judge Raymond J. Dearie was appointed special master on September 15, 2022, after the DoJ accepted Trump’s candidate; Dearie has until November 30 to complete his review of the documents. Judge Cannon also upheld a prior ruling which blocked the use of the seized documents for investigative purposes by the FBI until they had all been reviewed.
The DoJ filed a motion before the 11th Circuit to allow the DoJ and FBI to resume their criminal investigation by reviewing the classified document on September 16, 2022; the 11th Circuit granted the DoJ’s request. Following the 11th Circuit’s ruling, Trump asked the Supreme Court to vacate the 11th Circuit ruling on October 4, 2022; however, the Supreme Court denied Trump’s request on October 13, 2022.
Notice: This article is up to date as of publication date. Events that have taken place after the publication of this article are not reflected herein.
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