(CNN) — The FBI raid of former President Donald Trump’s Florida residence on Monday marked an extraordinary escalation of an investigation into his handling of certain documents from his presidency and raises questions about whether his legal exposure extends beyond whether he improperly took government records. when he left the White House.

It is still unknown what exactly the FBI was looking for and why. But to get a search warrant, investigators would have to have shown a judge that there was probable cause for a crime and that evidence of that crime was at Mar-a-Lago, Trump’s Palm Beach resort.

Here’s what you need to know about the legal significance of the raid, which comes at a time when Trump is preparing a potential 2024 presidential bid, and what could come next.

What would the Justice Department have to do to obtain the search warrant?

To obtain judicial approval for the search, investigators would have had to present to a judge a detailed affidavit establishing that there is probable cause to believe that a crime has been committed and that there is evidence of that crime within the last few days in the property where registration is sought.

The search warrant would have been filed under seal, meaning its details are not publicly available at the moment (although they may be made public in the future). There is only one sealed search warrant application in West Palm Beach federal court from June that was still not closed as of Friday, according to the court’s public record of cases.

But before prosecutors got to the point of asking a magistrate judge to approve the warrant, to proceed with a search that had such historical and political importance, investigators would have had to get the go-ahead from the highest levels of the Department. of Justice, legal experts told CNN.

Former Justice Department officials told CNN it was likely that, at a minimum, Deputy Attorney General Lisa Monaco would have had to give the green light and that Attorney General Merrick Garland and/or FBI Director Chris Wray could also have been given the green light. consulted.

“Not only would investigators have to suggest it, not only would a line prosecutor have to agree with it, but multiple levels of management would have to have approved it, right down to the attorney general,” said Daren Firestone, a former DOJ attorney, to CNN.

The Justice Department has declined to comment.

This is why the FBI raided Trump’s residence 0:50

What does this mean for Trump’s legal exposure?

Taking the extraordinary step of executing a search warrant on a former president’s home suggests investigators are looking for more than what the National Archives had previously recovered from Mar-a-Lago, according to legal experts.

In January, the National Archives recovered 15 boxes of records from Mar-a-Lago, including materials that had been identified as classified, but activity around those boxes has been quiet since the spring.

“I really don’t think the department would have taken such a significant step as seeking a search warrant for the president’s residence on information they already had back,” Andrew McCabe, a former FBI deputy director and CNN contributor, told “Newsroom.” from CNN. “There had to be a suspicion, a concern and, in fact, specific information that would lead them to believe that there were additional materials that were not released.”

Prior to Monday’s record news, a law known as the Presidential Records Act had been at the forefront of public speculation about Trump’s legal danger, as other investigative steps related to the handling of White House documents were taken. of Trump.

That law, passed after Watergate to make it clear that certain records of a presidency belong to the public and not to the former incumbent, is not a criminal statute and has been considered a relatively powerless law.

A search warrant and the presence of the FBI means a criminal investigation. There are other records retention statutes that carry criminal penalties, such as the Espionage Act, but at this time it is unclear which criminal statutes have been implicated in the Justice Department’s investigation.

It is a crime to destroy or delete federal records, or tamper with classified documents. There are other federal laws that are intended to prevent the manipulation of information during an investigation.

Earlier this year, the Justice Department issued subpoenas for presidential materials that included classified documents previously recovered by the National Archives. The FBI also interviewed Trump advisers at Mar-a-Lago in the spring as part of the investigation, according to a source familiar with the matter.

For investigators to escalate their investigation with a break-in, “there would have to be something serious enough to merit more than a slap on the wrist,” said Firestone, now a partner at the Washington-based firm Levy Firestone Muse.

It is also notable that the Justice Department has not pursued civil litigation against the former president because of the way it handled the documents in question. Just last week, the Justice Department filed a civil lawsuit against former Trump White House official Peter Navarro, claiming he had violated the Presidential Records Act and seeking an injunction compelling him to turn over emails from a private account he used while working at the Trump White House.

Because right now?

The raid came two months after a previously unreported June 3 meeting between Justice Department investigators and Trump’s lawyers at the resort. During the visit, reported by CNN on Monday, four investigators, including the head of the Export Control and Counterintelligence Section, toured a basement where boxes of material were stored.

Five days later, investigators sent Trump’s lawyers a letter asking them to further secure the room where the documents were stored, prompting aides to add a padlock to the room.

That the FBI executed a search warrant two months later suggests that federal officials were not satisfied with what they saw on the visit or that they did not trust the willing cooperation they were receiving from the Trump team, some legal experts said. Federal officials may also have needed official clearance to retrieve the classified records.

“The fact that the FBI found out that Trump still had documents in [Mar-a-Lago] in June, and felt the need to come back two months later with a search warrant, tells me that the agency has evidence that Trump and his staff were holding additional classified records and not taking any steps to properly return them to the Archives,” Bradley Moss, a national security attorney, told CNN in an email.

It’s also possible that the Justice Department took months to decide whether and how to search.

At the time the FBI left Mar-a-Lago, Trump’s team likely received a document resembling a receipt for what they took. But the Justice Department can be as vague as it wants in that documentation.

More broadly, the Justice Department can keep large parts of its investigation secret, as the Justice Department made clear in court filings Monday night surrounding its search for John Eastman, the former Trump attorney who led efforts to subvert the 2020 elections.

In that filing, in which the Justice Department argued against a request by Eastman that investigators on Jan. 6 return devices seized in New Mexico in late June, prosecutors said there was no obligation for the Department to share with Eastman for more details on the status of his investigation.

“The Government has no doubt that the applicant would like to have full knowledge of the Government’s investigation and the ability to ‘engage [los agentes federales] in a debate on the basis of the order,” the filing said.

“But the law only, and correctly, requires that a neutral magistrate judge find probable cause to search and seize any electronic device on your person; it does not require that the searched person know the basis for the warrant.”

What will happen now?

It is not yet known how unsuspecting Trump’s attorneys were about the FBI’s actions taken Monday and what Trump’s team has been arguing to the Justice Department about its handling of the documents in previous interactions with investigators.

Trump could take a pre-emptive legal step to challenge in court the way the FBI handled the search, perhaps with the goal of getting whatever evidence investigators have obtained dismissed or at least trying to get more information about what the FBI has handled. that is being investigated.

But without such judicial action, the next steps of the investigation may well continue in secret.

Can Trump be barred from running for president if he is found to have violated the records law?

other law that may be implicated in the FBI raid is the one that prohibits the intentional concealment, deletion, or mutilation of government records. That law threatens as a punishment the disqualification “to occupy any position in [el Gobierno de] USA”.

However, there are questions about the constitutionality of that law and its applicability to a Trump presidential bid, if he were convicted under it.

Since the Constitution establishes specific qualifications for the presidential office, and establishes a separate impeachment process to disqualify presidents from holding office in the future, some argue that Congress would not have the authority to enact such a statute can apply for a presidential candidate.

— Katelyn Polantz, Gabby Orr and Kaitlan Collins contributed reporting.

Source link