In January, the National Archives and Records Administration obtained 15 boxes containing presidential records from Trump’s Mar-a-Lago residence that should have been transferred to NARA at the end of Trump’s time in office under the Presidential Records Act. David S. Ferriero, archivist of the U.S., said in a letter to Congress that NARA “has identified items marked as classified national security information within the boxes” and because of that, “NARA staff has been in communication with the Department of Justice.”
In a Feb. 7 statement, NARA said: “Former President Trump’s representatives have informed NARA that they are continuing to search for additional Presidential records that belong to the National Archives.”
The New York Times reported in May that the Department of Justice had launched a grand jury investigation into the potential mishandling of classified materials at Mar-a-Lago.
Former acting solicitor general and MSNBC analyst Neal Katyal said on the network on Aug. 9 that this is the first time, to his knowledge, that law enforcement searched a former president’s home. “It is very likely the reason for that search is because Donald Trump is the target of a federal investigation by the Justice Department.”
We’d caution that this is a developing story with a lot of unknowns, including what specifically the FBI was seeking. The FBI press office told us it has “no comment on this matter.”
What’s the legal process for obtaining a search warrant on a former president’s home? Who has to approve such a warrant?
Legal experts have said a search warrant on a former president’s residence likely would have needed high-level approval of FBI Director Christopher Wray, who was nominated by Trump in 2017, and Attorney General Merrick Garland. But neither the FBI nor the Department of Justice, which hasn’t replied to our inquiry, have commented on that.
Beyond likely requiring upper-level scrutiny, the process of obtaining a search warrant involves law enforcement establishing probable cause that a crime has occurred and that evidence of that crime can be found at the particular place to be searched. A federal judge or magistrate must approve the warrant. The process protects people from “unreasonable searches and seizures,” as established by the Fourth Amendment.
“A federal law enforcement officer has had to swear under oath in an affidavit that there’s probable cause of two things, a federal crime and evidence of that federal crime where they want to execute the search warrant, in this case, Mar-a-Lago,” Jessica Levinson, professor of law at Loyola Law School in Los Angeles, told CNN on Aug. 9. “Then, a federal judge, a magistrate judge has to independently look at this and decide whether or not to give the go ahead. All of this is extremely serious and everybody understands that when it comes to this particular search warrant, obviously, there will be many eyes scrutinizing this. I think everybody dots their i’s crosses their t’s.”
Magistrate judges are officers of U.S. district courts, appointed by the court judges.
Chuck Rosenberg, a former U.S. attorney and senior FBI official, said on MSNBC that “probable cause is the lowest threshold in the criminal law” — it means “probably” — “but nevertheless, with a warrant like this, for a search target like Mr. Trump, I’m convinced that this would be an exhaustive recitation of facts. Everything the government has.”
Federal prosecutors “often put in much more detail than the Fourth Amendment would require,” Rosenberg said, “to satisfy any question or any concern that the federal judge may have.”
Joyce Vance, a distinguished professor at the University of Alabama School of Law who was the U.S. attorney for the Northern District of Alabama from 2009 to 2017, went into detail about the warrant application process, telling MSNBC’s “Morning Joe” that the federal government would have to “meet a very high burden to get this search warrant.”
Vance said that Trump’s claim that his personal safe had been searched “suggests that agents had acquired … fresh information. It can’t be months old. To get a search warrant, your evidence has to be fresh, not stale in the language that prosecutors use. So they believe that there was something in there that was either evidence or fruits of a crime.” (“He didn’t even have anything in the safe,” Eric Trump told Fox News.)
There would be internal Justice Department review of the application, making sure it established probable cause, Vance said. And even before applying for the warrant, agents and prosecutors “have to have exhausted all of their other options,” she said. “It has to have become clear there wouldn’t be voluntary return of these materials. They have believed and have good reason to believe that a grand jury subpoena ordering return of the materials would not have been complied with and perhaps that there was some risk of destruction.”
Shan Wu, defense attorney and a former federal prosecutor, similarly said on CNN on Aug. 9 that the application process “would certainly require a lot of careful grilling at the department through its bureaucracy, and it has to be approved at a very high level because it’s the most sensitive of sensitive investigations.”
Are there certain steps taken in executing the search warrant in the case of a former president?
NBC News reported that the FBI alerted the Secret Service about the search hours beforehand. Former presidents have Secret Service protection for life.
A Secret Service official told NBC that the Secret Service gave the FBI access to Trump’s home but didn’t aid in the search.
What laws pertain to mishandling presidential records?
As we have written, the Presidential Records Act, or PRA, governs the maintenance of presidential records. It was passed in 1978, after former President Richard Nixon sought to destroy recordings made in the White House that documented activities related to the Watergate scandal, Ferriero, archivist of the United States, explained in a 2017 publication for the National Archives.
When a president leaves office, the archivist takes custody of the records from that administration and is responsible for their preservation and for providing access to the public, according to a Congressional Research Service report.
“The Presidential Records Act requires that all records created by presidents be turned over to the National Archives at the end of their administrations,” NARA said in its Jan. 31 statement.
Kel McClanahan, a professor at the George Washington University Law School and executive director of the public interest law firm National Security Counselors, told us in February the destruction of presidential records could be a violation of federal laws that protect records and other government property.
Under one of those laws, Title 18 Section 2071 of the U.S. Code, it states that anyone with custody of a record who “willfully and unlawfully conceals, removes, mutilates, obliterates, falsifies, or destroys” a record shall be fined and/or imprisoned for up to three years, and “disqualified from holding any office under the United States.” Another law, Title 18 Section 641 of the U.S. Code “makes it a felony to, among other things, dispose of any record that belongs to the United States,” according to a Lawfare blog post on possible mechanisms for holding a president accountable for violating rules on presidential records.
Separate from that are federal criminal laws related to the mishandling of classified documents.
For example, the criminal code of the federal government states that someone who “knowingly removes [classified national defense or foreign relations] documents or materials without authority and with the intent to retain such documents or materials at an unauthorized location shall be fined under this title or imprisoned for not more than five years, or both.”
In 2015, former CIA director and retired Army Gen. David Petraeus was indicted for violating that criminal code for taking classified materials home. He received two years of probation and a $100,000 fine after pleading guilty to mishandling classified information.
It is also unlawful to knowingly share certain national security classified information with an “unauthorized person.”
Would Trump be barred from holding federal office if he were to be convicted of violating these laws?
Democrats have highlighted Title 18, Section 2071 to claim or suggest that Trump, if convicted, could be “disqualified” from holding office.
Marc Elias, who was general counsel of Hillary Clinton’s 2016 presidential campaign, tweeted a screenshot of the law. “The media is missing the really, really big reason why the raid today is a potential blockbuster in American politics,” he wrote, highlighting the phrase “shall forfeit his office and be disqualified from holding any office under the United States.”
But others say applying any federal law to disqualify a candidate for president would be unconstitutional, since the U.S. Constitution sets the qualifications for president. (A president must be at least 35 years old, a natural-born citizen and a U.S. resident for at least 14 years.)
“Congress cannot add to the constitutionally prescribed qualifications” for president, UCLA law professor Eugene Volokh told us in a phone interview.
In 2015, when Clinton was under investigation for allegedly mishandling confidential documents, Volokh noted in an opinion piece for the Washington Post that the Constitution “expressly” allows Congress to disqualify a person “from future office [as] part of the sentence in impeachment proceedings — but has no such provision as to criminal sentences.”
The same constitutional logic would apply to Trump, Volokh told us.
Similarly, Norman Eisen, who was special counsel for the House Judiciary Committee when Trump was impeached in 2020, told Mother Jones in February that applying a federal law to disqualify Trump “would raise a substantial constitutional question.”
“[I]t would constitute Congress placing an additional qualification on the office of the presidency after the Constitution itself had established the criteria,” Eisen, a senior fellow at the Brookings Institution, said. “But it is an open question of law. The final resolution would be up to the courts and the Supreme Court.”
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