Why did the FBI search Mar-a-Lago? Was it a ‘bonehead move’ or ‘something extraordinarily sensitive’?

Maggie Severns, Steve Reilly and Jason Paladino

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The FBI executed a search warrant of former president Donald Trump’s Mar-a-Lago home on Monday evening, sending shock waves across the country and sparking speculation that Trump could soon be indicted.

Much is still unknown about the search of Trump’s home, including why the Department of Justice believed there was cause to conduct a search in the first place. Court records relating to the warrants are sealed, so the contents of the warrant are not public.

But some things are becoming clear. The DOJ’s investigation into Trump has led a judge to take the unprecedented step of signing off on a search warrant on the former president’s home — which, in turn, suggests the department is making progress on its investigation.

“We don’t know what the justification for this is, and we may not know for a while,” said Kevin J. O’Brien, a trial lawyer and former assistant U.S. attorney. “If they’re going to indict him, I have to think that’ll happen fairly soon. The more they let it hang out there, the worse it looks.”

But considering the search executed on Monday, the department may be “pretty close to a decision” on whether to pursue charges against Trump, O’Brien said.

Grid broke down the most pressing questions about the search and what it reveals about the Department of Justice’s investigation of Trump.

What was this search about — Jan. 6? A dispute over documents? Something else?

Initial reporting indicates the search was related to the former president’s alleged mishandling of presidential and classified documents. We don’t know what sensitive material may be in the documents or if they relate to other major issues like Trump’s involvement in the Jan. 6 insurrection.

The Department of Justice has two reported investigations into Trump, one related to an alleged attempt to overturn the 2020 election and one focused on his handling of classified documents. While it’s unclear how the search fits into Justice’s investigations, the department’s decision to execute a search warrant against a former president indicates it believes something important is at stake.

“I can’t believe a simple quarrel over, ‘This [document] belongs to me, no it belongs to me,’ would’ve led to an execution of a criminal search pursuant to the Fourth Amendment, with all the evidentiary requirements that that entails,” said O’Brien. “Something else is going on, and I don’t think we know what it is.”

A dispute over record-keeping at the Trump White House has been simmering for months. After Trump left office, he failed to return at least 15 boxes of documents from Mar-a-Lago, his property in Florida that served as a kind of “White House South,” including some that contained classified material.

Those boxes were eventually returned to the National Archives in January of this year, according to a letter from the Archives to the House Oversight Committee. In June, high-level DOJ officials visited Mar-a-Lago to meet with Trump’s lawyers about the investigation and materials that remained at the property, CNN reported.

Was it a raid or not?

“Raid” is not a legal term — but some in the legal community have pushed back on the notion that the FBI “raided” Trump’s home because it implies lawlessness.

“It was a judicially authorized search — a judge signed off,” O’Brien said.

What did the Department of Justice need to show to get a warrant?

In order to obtain a warrant, federal investigators need to demonstrate probable cause that a specific crime has been committed and that some physical evidence can be found at the location of the search. But, as the court records showing the specifics of the search warrants issued for Mar-a-Lago are sealed, we can’t identify what that probable cause was.

However, it’s noteworthy that multiple search warrants were issued in the West Palm Beach office of the U.S. District Court for the Southern District of Florida between Aug. 3 and Monday. According to the DOJ’s “Justice Manual,” a search warrant should not be used to obtain materials “unless it appears that the use of a subpoena, summons, request, or other less intrusive alternative means of obtaining the materials would substantially jeopardize the availability or usefulness of the materials sought.”

Bill Leonard, the former director of the Information Security Oversight Office at the National Archives, described the search as a “drastic action.”

“Either it was a total boneheaded move by the FBI or there was something extraordinarily sensitive at play here,” Leonard told Grid.

Does this mean DOJ is more willing to pursue charges against Trump than we thought?

For months, Democrats have slammed Attorney General Merrick Garland for dragging his feet on investigating Trump. Monday’s search shows the department may be proceeding at a faster clip.

“No person is above the law in this country,” Garland said last month in response to questions about how the DOJ is handling Trump-related matters, adding, “there is nothing in the principles of prosecution which prevent us from investigating anyone — anyone — who is criminally responsible for an attempt to undo a democratic election.”

“Simply put, partisan politics must play no role in the decisions of federal investigators or prosecutors regarding any investigations or criminal charges,” the memo states. DOJ employees “must also adhere” to a Trump-era policy that required that any inquiry into a presidential candidate or campaign must be approved by the attorney general, the memo said.

Can former presidents declassify documents and possess classified material? Is the issue how Trump stored top secret documents?

Former presidents have no power to declassify anything. They can request access to classified material, but only through a heavily regulated process, which does not appear to apply to this case.

They also don’t hold onto their records after their departure, because they belong to the American public. Former presidents are required to transfer their records to the National Archives upon leaving office.

What if Trump announces his next run for president?

Trump has repeatedly indicated he plans to run for president in 2024 and that he’d like to announce his candidacy early, especially as potential rivals like Republican Florida Gov. Ron DeSantis keep raising their national profiles. The Washington Post reported in July that Trump was eyeing an announcement in September and had begun meeting with advisers and political donors to discuss a run.

Though indicting a candidate for president may be politically perilous, Garland and the DOJ are allowed to do it. And with more than two years to go before the next presidential election, Trump’s campaign timeline may not affect how DOJ proceeds.

There is time for the department to prosecute Trump, but the stakes would be extremely high, risking the appearance that the Biden administration is persecuting a presidential challenger.

Since his nomination, Garland has maintained he would lead DOJ independently of Biden. “I am not the president’s lawyer,” Garland said at the time. The White House said on Monday that it was not notified about the search and some White House officials found out via social media, according to a CBS reporter.

What about the Justice Department’s “90-day rule”?

The Justice Department has no 90-day rule but follows a general practice to avoid public indictments involving a candidate for office within 60 or 90 days of the election. For this year’s midterms, this practice presumably would not apply to Trump, who is not on the ballot this November.

What’s needed to prosecute a former president?

Legally, there aren’t special measures required under the law to investigate or prosecute a former president. If prosecutors charge Trump, it would be the first such case in American history, so there are no precedents to instruct us.

When it comes to obtaining a search warrant, however, a judge might be particularly inquisitive about whether there’s a political motive behind the request.

The bar “is really the same for everybody,” said Richard Painter, a former White House ethics lawyer. “No president, or former president, is above the law.”