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The FBI Search of Mar-a-Lago: Five Takeaways and Questions

Criminal liability, presidential accountability, and what we still don’t know.
August 9, 2022
The FBI Search of Mar-a-Lago: Five Takeaways and Questions
(Composite / Photos: GettyImages / Shutterstock)

The potential significance of Monday’s FBI search of Donald J. Trump’s Mar-a-Lago residence in Florida cannot be overstated. It matters for Trump’s personal criminal liability, yes. But it is also symbolically meaningful for the rule of law and the Constitution, which are under assault right now.

Although a great deal remains unknown, here are five immediate takeaways and some of the big remaining questions.

1. A serious legal process: The fact that the search happened at all means that a federal judge determined that there was a fair probability that a search of Mar-a-Lago would yield evidence of a crime. In typical fashion, Trump claimed that the search was “prosecutorial misconduct” and reflected “the weaponization of the Justice System.” But prosecutors cannot conduct searches of people’s homes willy-nilly. The Fourth Amendment requires that “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” For the FBI to conduct a search like this, it needed a warrant, which means everyone from line prosecutors and FBI lawyers to Attorney General Merrick Garland himself had to sign off on the warrant application, and then a federal judge had to examine the affidavit setting forth their evidence and concur. This is the system working as the Framers intended.

2. Checking the boxes? One of the big unknowns at this point is what the warrant says. Initial reports indicate that DOJ is still interested in how 15 boxes of official White House records found their way to Mar-a-Lago in evident violation of the Presidential Records Act, which establishes public ownership of presidential records, places responsibility for managing records with the incumbent president, and mandates that non-official electronic messaging accounts of official business be turned over to the Archivist of the United States—along with other White House records—as soon as the president leaves office. Among the 15 boxes were reportedly classified records and communications between Trump and North Korean dictator Kim Jong-un. The Justice Department began an investigation into the stolen records in April of this year. Although federal law prohibits the unauthorized removal of classified records and the intentional removal or concealment of federal records, presidents—including Trump when he was in office—possess the power to declassify materials, which suggests that there is more to DOJ’s investigation than just the records removal itself. For example, were all of the documents secreted away to Mar-a-Lago recovered? And if not, what became of them?

Under the terms of one federal criminal law that’s implicated, if the search proves that Trump ran afoul of the law on preserving presidential records, he could be disqualified from office:

Of course, that theory has never been tested, especially against a president, but much about Trump’s lawless actions has lacked legal precedent.

3. Other reasons for the search? It is also possible that DOJ’s criminal investigation of the January 6th insurrection was either a subject of the search or that relevant materials were collected (so long as in plain view). Might there be records at Mar-a-Lago relating to the planning of the events on January 6th? Or informing the 7-hour, 37-minute gap in Trump’s official daily diary and White House switchboard call logs for January 6th, including during the period when the Capitol was under violent assault? According to individuals who spoke anonymously to Washington Post reporters, Trump may during those hours have communicated through disposable phones, aides’ phones, or other back channels to reach members of Congress and others during the attack. It is entirely possible that the Mar-a-Lago search aimed at answering some of these questions.

4. Who dropped a dime? Trump’s lawyers have been talking to DOJ, reportedly about executive privilege, although there are reasons to believe there’s more to those talks, because the executive privilege claims are bogus and it’s not clear what there is to talk about. Under the Constitution, there’s only one president at a time, so Trump has no claim to executive privilege at the moment; Joe Biden does. That was the decision the lower courts reached (and the Supreme Court let stand) when Trump tried to use executive privilege to withhold official documents from the House January 6th Committee. Trump’s further claims of executive privilege would serve only to drag out the legal process and delay the Justice Department effort. Meanwhile, his former chief of staff, Mark Meadows, and a number of other Trumpworld underbosses seem to be in hot water (Trump’s lawyers reportedly told him not to talk to Meadows anymore), and it would be surprising if at least a few weren’t cooperating with DOJ to minimize their personal exposure. After all, Meadows aide Cassidy Hutchinson told the Jan. 6th Committee that she saw Meadows burning documents after meeting with Rep. Scott Perry.

5. What else is there? None of this should come as a shock given everything we know about Trump’s maniacal lawlessness. Former Attorney General Eric Holder recently predicted, and even his successor Bill Barr has entertained, that an indictment of Trump is likely, particularly given the ongoing investigation by a state prosecutor in Georgia of his attempt to get Brad Raffensperger, Georgia’s secretary of state, to “find” him 11,870 votes—not to mention the fake slates of electors that also popped up in other states. Trump is no longer president, so he doesn’t get a pass under DOJ’s outdated memo barring prosecutions of sitting presidents. The laundry list of conceivable charges is formidable: obstruction of an official proceeding, witness tampering, conspiracy to defraud the United States, inciting an insurrection, inciting an armed riot, impeding a government official (former Vice President Mike Pence), and various flavors of federal and state election fraud. Contrary to some punditry, these charges do not obviously require proof that Trump actually talked to the Jan. 6th terrorists and directed the violence.

The next few days and weeks are likely to bring a great deal of speculation and possibly conflicting information as new details emerge about the Mar-a-Lago search and what led up to it. So it’s worth taking a step back and remembering where this story fits in a broader context: As a constitutional matter, DOJ’s bold action is important as a message to future presidents that even though other guardrails of presidential accountability have failed, the criminal justice system still works, so long as someone of integrity—like Merrick Garland—is at the helm. So don’t try to use the massive powers of the office to morph this country into an authoritarian basketcase. There are still enough people around who care enough not to let you get away with it.

Kimberly Wehle

Kimberly Wehle is a contributor to The Bulwark. She served as an assistant U.S. attorney and an associate independent counsel in the Whitewater investigation. She is currently a professor at the University of Baltimore School of Law. An ABC News legal contributor, she is the author of three books with HarperCollins: How to Read the Constitution—and Why, What You Need to Know About Voting—and Why, and, most recently, How to Think Like a Lawyer and Why—A Common-Sense Guide to Everyday Dilemmas. Her new book, Pardon Power: How the Pardon System Works—and Why, is forthcoming in September 2024 from Woodhall Press. @kimwehle.