By Kaden Pradhan
London, United Kingdom
On the morning of August 8, 2022, agents of the Federal Bureau of Investigation searched Mar-a-Lago, the home of former President Donald Trump, looking for classified documents and records he had supposedly illegally taken from the White House at the end of his term. The resulting uproar has pushed this story into the limelight of the global news cycle for the past few weeks. However, a crucial question still remains. Was the raid actually lawful?
First, it is worth noting that Trump has had a poor reputation in dealing with official information for years, even during his time as President. He would casually provide classified intelligence to powerful actors like Russian agents, and even to his Twitter followers—he has tweeted about a top-secret CIA initiative in Syria, and posted a restricted-access satellite image of an Iranian nuclear site. He also once reported he had “fully authorized” the “total declassification” of documentation in relation to the Hillary Clinton personal email scandal, when in fact he had done no such thing and that sensitive information was still highly classified.
Trump was also infamous for shredding important papers after he was done with them, in direct violation of the Presidential Records Act. Despite being scolded about it, he would frequently destroy documents aboard Air Force One and at Mar-a-Lago. Some White House staffers would try to reassemble the shreds with tape, but this was often unsuccessful—Trump’s associates sometimes burned them, and at other times they were flushed down the toilet.
During his chaotic departure from the White House at the end of his term, most of Trump’s staff had already tendered their resignation, including those with expertise in record-handling. As such, he appointed his Chief of Staff Mark Meadows, along with the White House Counsel and Deputy, his delegates on matters of presidential records. Later, in the middle of this year, he replaced them with two die-hard Trump loyalists; Kash Patel, who is a former aide and a director of Trump Media & Technology, and John Solomon, a former Fox News contributor.
In May 2021, the National Archives and Records Administration, the federal agency in charge of record-keeping and the custodians of official documents, officially inquired about several boxes of missing presidential records. NARA requested Trump’s attorneys provide further information about the whereabouts of these papers, which allegedly include correspondence with Kim Jong-Un. Throughout the rest of the year, NARA relentlessly pushed Trump’s team for their return, but the attorneys were steadfast and intransigent, irritating the NARA officials. At the start of this year, NARA sent a team to Mar-a-Lago to retrieve them directly. Fifteen boxes were turned over. Each one of them contained government property illicitly taken from the White House.
The unexpected findings in the boxes sent shockwaves through NARA. Inside were top secret, classified files, containing information about highly sensitive U.S. operations abroad, signals intelligence, and so on—items of national security that should never leave a secure facility. If foreign agents got their hands on these files, the consequences would be devastating. The whole matter was referred straight away to the Department of Justice. An alarmed Congress also immediately launched its own probe into the affair, under the supervision of Carolyn Maloney.
In April 2022, the DOJ formally opened a criminal investigation, and convened a grand jury. Trump was being investigated for violating three laws: the first regarding ‘Gathering, transmitting or losing defense information’ (18 U.S. Code § 793), the second regarding ‘Destruction, alteration, or falsification of records in Federal investigations and bankruptcy’ (18 U.S. Code § 1519) and the third regarding ‘Concealment, removal, or mutilation [of records and reports] generally’ (18 U.S. Code § 2071).
The next month, a subpoena was issued to Trump, requesting turnover of any other boxes of presidential records in his possession. In June, the FBI was dispatched to Mar-a-Lago where they met Trump’s attorneys, and more boxes were handed to the agents present. Still, the DOJ had a strong suspicion that not all documents had been turned in. Allegedly, a confidential informant told the FBI where further records were being kept. They secured surveillance footage of the outside of Mar-a-Lago’s storage room, which revealed boxes were still being moved in and out, even after the DOJ initiated contact.
This, and other evidence, was enough to secure probable cause for a search warrant. The U.S. Attorney General, Merrick Garland, was approached with the case the FBI had built. After deliberating for weeks with senior Justice officials, Garland approved the application for a search warrant.
Bruce Reinhart, federal magistrate judge, signed off on the warrant on August 5, and it was executed by the FBI three days later. The findings, which allegedly include material relating to nuclear weapons, have already been widely reported.
So, were the proper lawful procedures followed in obtaining the warrant? The Trump camp has been quick to accuse the DOJ of being politically motivated, aiming to taint his reputation and halt him running for President in 2024. Trump himself asserted that the FBI planted and doctored evidence in the course of their investigation, without providing anything to back his claims. He claimed that Obama took away “33 million pages” of records at the end of his term, but NARA says all of Obama’s documents were properly and punctually handed in. He argued that any documents he did have were “all declassified” which is plainly false.
The warrant was correctly signed by a federal judge in the appropriate district. Both the Attorney General, and several high-ranking Justice staffers, reviewed the evidence and approved it. There is nothing as yet to suggest any was fabricated or altered.
Nor is there any foundation to the idea that there were ulterior, political motives at play. According to the White House, the Biden administration were actually unaware of the investigation and subsequent raid until it was reported on the news. There is nothing to suggest Biden instructed, ordered, or in anway influenced the FBI’s procedures—according to the press secretary, “those investigations should be free from political influence.” The White House will not interfere with the DOJ’s inquiry, which is independent of the executive.
All Congressional probes have also, it appears, been stymied by the DOJ for the time being. Whilst the House Oversight and Intelligence Committees, the Senate Intelligence Committee, and the ‘Gang of Eight’, have all approached FBI and National Intelligence officers for more information, it is unclear whether their requests have been met. Nonetheless, their efforts to investigate Trump are slowly increasing over time. According to proper protocols, criminal matters should be dealt with by the judicial system before the legislature takes the helm. On the afternoon of August 22, Trump filed a motion against the federal government requesting a Special Master—an experienced, independent attorney—be appointed to oversee the materials and determine what could be used by the DOJ in the course of their investigation. At the time of writing, the motion has not been considered. If successful, it could prevent the FBI from accessing certain documents. The motion argues that Trump, “the clear frontrunner” for the 2024 election, has been unfairly treated by the government for a long time, and cites the Russian collusion investigations. It also argues Trump’s constitutional rights under the Fourth Amendment have been violated, but this argument doesn’t hold weight if the search warrant was true and lawful.
Up to fifteen organizations, most of them media and news corporations, have requested key documents in the case be unsealed for the public to view. On August 22, however, Judge Reinhart unsealed only a few documents and denied most of the others after arguments from the DOJ that a full unsealing would threaten the integrity of the investigation.
As such, it is impossible to say for sure that there is no questionable activity on the part of the investigators, as we do not have access to all the information of the case.
However, it can be taken with reasonable certainty that all procedures and protocols have been followed by the FBI, the DOJ, and the grand jury, and there is no evidence to the contrary—although the results of Trump’s new motion may change that. As far as we know, though, the Mar-a-Lago raid was indeed commissioned and executed entirely lawfully.