The news that FBI agents descended on the former president Donald Trump’s Mar-a-Lago house and searched it have drawn accusations of a politicized law enforcement organization doing the bidding of the Biden administration by targeting political enemies.
The reality is that the process of obtaining a search warrant is governed by a checklist of requirements before a judge approves a decision to invade someone’s home.
Experts say that even a decision to seek a warrant to search a former president’s property likely would have had to be approved by senior Justice Department officials.
The search is part of a investigation into whether Trump took classified records from the White House to his residence in Florida, according to people familiar with the matter.
The Justice Department has been investigating possible mishandling of classified information since the National Archives and Records Administration said it had received 15 boxes of White House records, including documents containing classified information, from Mar-a-Lago. early this year.
Here’s a look at the process for obtaining a search warrant and the laws that govern government records:
HOW DO SEARCH GUARANTEES WORK?
FBI agents can’t just show up to search a property like Mar-a-Lago. Investigators must first obtain a search warrant, which requires convincing a judge that they have probable cause that a crime occurred.
Federal authorities seeking a search warrant present their evidence and basis for the need to search a property in an affidavit reviewed by a federal magistrate or district court judge.
Magistrate judges are not nominated by the president and confirmed by the Senate. Instead, they are appointed by district court judges to handle matters such as search warrant applications and defendants’ initial court appearances.
The judge may request additional information and question the officer requesting the search warrant under oath. The judge will only sign the warrant if there is probable cause that there is evidence of a federal crime at the location authorities want to search.
Given the sensitivity of an investigation involving a former president, there must have been serious deliberation by both the Justice Department and the judge, said Dennis Lormel, who served 28 years with the FBI before retiring in 2003.
“This couldn’t have been just a knee-jerk ‘let’s go with a warrant,’” said Lormel, now president of the Society of Former FBI Special Agents. “I’d like to make sure I have as airtight or bulletproof an affidavit as I can.”
The search warrant application process occurs in secret to avoid alerting the person whose property may be searched. All court records related to the warrant request would be sealed.
Those records generally remain sealed unless and until a criminal case is filed, and even then, authorities may try to keep the affidavit out of public view. The person whose property is being searched has the right to see the order, but not the affidavit.
If property is searched without a valid warrant or probable cause, any evidence seized can be suppressed, meaning it cannot be used in court.
Brian O’Hare, president of the Association of FBI Agents, said Tuesday that all search warrants “must meet clear and detailed procedural rules, and are the product of collaboration and consultation with relevant Justice Department attorneys.” ”.
In this particular case, the execution of the order also included the notification to the secret service that provides protection to the former president and his homes. A person familiar with the search told The Associated Press that the FBI contacted the Secret Service shortly before serving the warrant.
Secret Service agents contacted the Justice Department and were able to validate the warrant before granting access to the property, the person said.
WHAT LAWS MAY BE IN POLICY?
It’s unclear what law enforcement officials think may have been violated. Numerous federal laws address the handling of classified records, including statutes that make it a crime to remove such records and retain them in an unauthorized location.
The Presidential Records Act, which was enacted in 1978 in the wake of the Watergate scandal, requires the preservation of White House documents as the property of the US government.
But while the law is designed to require the preservation of records such as emails, text messages and phone records, there has never been a case where a former commander-in-chief has been punished for violating the Presidential Records Act and there is no real mechanism to enforce the law.
Another federal law makes it a crime if someone in the custody of government records “willfully and unlawfully conceals, misappropriates, mutilates, erases or destroys” the documents. If the person is convicted, the law requires a fine or up to three years in prison. prison, or both.
That law also says that the convicted person “shall lose office and be disqualified from holding any office in the United States.” But legal experts have said that would not apply in the case of the position of president, whose qualifications are established by the constitution.
Associated Press reporters Mike Balsamo and Eric Tucker in Washington contributed to this report.