(The Hill) – The FBI search of Mar-a-Lago has answered one lingering question about Attorney General Merrick Garland: Yes, he’s willing to directly investigate Donald Trump.
But the unprecedented search of the former president’s home raises a number of questions about the breadth of the probe, the timing of the search, what investigators were seeking and what it means for Trump.
What Trump referred to as a “raid” of his home was the FBI execution of a search warrant approved by a federal judge after prosecutors were able to provide probable cause that a crime had been committed and that evidence would likely be found during the search.
But aside from a reported focus on White House documents in Trump’s possession, little is known about the investigation that prompted the extraordinary step or where it might lead.
It’s unclear what was seized in the search or whether the Department of Justice (DOJ) has found evidence to support charging Trump himself. Still, the execution of a search warrant on Trump’s property is the first public confirmation that the former president is linked to an active criminal investigation by federal law enforcement, a development that Garland had been unwilling to reveal.
“This was not a search conducted in the pro shop. It’s a search conducted in the former president’s residence and office…The former president is a target of this investigation,” said Jeff Robbins, a former federal prosecutor and congressional investigative counsel.
“This is something which no doubt has been worked on for weeks, if not months, has been drafted and reviewed by a squadron of FBI agents and personnel reaching up to the top levels of the FBI, reviewed by a squadron of Department of Justice prosecutors reaching up to the very highest level of the Department of Justice. And it’s fair to assume that it is an uncommonly specific showing of probable cause.”
In January, Trump handed over 15 boxes of materials to government records keepers amid concern he may have violated the Presidential Records Act.
Then, in June, Justice Department investigators, including a senior counterintelligence official, returned to him and were shown a basement room that contained government records, including some that had classified markings, according to multiple reports.
Trump and his allies in Congress have dismissed the FBI search as politically motivated.
In an interview with a conservative media outlet on Tuesday, Christina Bobb, an attorney representing Trump who was present at Mar-a-Lago during the search, said the former president’s legal team had been cooperating with DOJ in its inquiry and insisted that Trump had done nothing wrong.
“They’re going to have a hard time proving that he actually even knew anything was in the boxes or anywhere else,” Bobb said in an appearance on the Right Side Broadcasting Network.
“I don’t think there was anything of substance that was removed as far as the documents go. I think this is a case where DOJ and the FBI under the Biden administration is just trying to criminalize and really prosecute their predecessor which is something we see in dictatorships and third-world countries.”
What the search warrant was targeting and what materials were seized by the FBI are questions that could be answered by reviewing the warrant that authorized the agency to search Trump’s property, but attorneys representing the former president did not respond to requests for a copy of the document or details about its contents.
Trump’s attorneys could seek to challenge the basis for the warrant, but any court proceedings could reveal additional information about what DOJ was seeking.
Trump himself compared the search to Watergate, writing in a statement that “here, in reverse, Democrats broke into the home of the 45th President of the United States.”
But former prosecutors pushed back against that narrative.
“Is it unprecedented that a president or former president is the target of a criminal investigation that results in a search warrant being executed at his residence? Yes, that is absolutely unprecedented. But, on the other hand, the evidence of criminality is also unprecedented,” Robbins said.
Robbins pointed to other determinations that Trump was likely involved in criminal activity: a Georgia investigation into Trump’s efforts to pressure the secretary of state there to “find” more votes, as well as a ruling from a California-based federal judge who in March found it was more likely than not that Trump committed crimes in his effort to stay in power.
“Now you have a totally separate federal judge — separate from the first one — who has found that there is probable cause to believe that the former president has committed a very specific federal crime or number of crimes,” he added. “That does not have any indicia of a witch hunt.”
It remains to be seen whether the search will lead to criminal charges against the former president or anyone in his immediate orbit, but former prosecutors noted there are serious penalties for violating public records laws.
“Highly classified information is treated that way because of its extreme sensitivity. There is a whole range of material that is really a crown jewel, national security, high-consequence sequence. And if that’s what a person carried away rather than leaving it in the hands of the government and complying with the Presidential Records Act, that’s a gravely serious matter,” said John Barrett, a former federal prosecutor who worked for the independent counsel investigating the Iran-Contra scandal and also served in the DOJ inspector general’s office.
The Justice Department has been facing public scrutiny for months over whether it is actively investigating Trump as a House committee probing the Jan. 6, 2021 attack on the Capitol has presented a wide-ranging case that the former president engaged in criminal conduct in his efforts to overturn the 2020 election.
It’s unclear whether there is any overlap between the DOJ’s investigation into White House records that may have been stored at Mar-a-Lago and the separate investigations into the Jan. 6 riot and a scheme to present a fake slate of Electoral College electors who sought to swing the election to Trump.
Even if the warrant had nothing to do with DOJ’s Jan. 6 probe, the search could provide fodder for additional search warrants.
“If agents are authorized by a warrant to enter the premises, then they are entitled to seize not only the items that are specified in the warrant but also any contraband they can see in plain view. If they stumble upon documents that appear to be evidence of another crime, they may be able to obtain a second warrant to obtain them,” Barbara McQuade, a former federal prosecutor wrote in an op-ed in USA Today.
“If once inside the safe, agents found documents or other items that incriminated Trump in, say, an election fraud scheme, they could potentially use that information to get another warrant.”
Barrett said next steps for the Justice Department depend on what investigators found in their search.
“Are there leads here? Are there next investigative steps to be taken? Are there witnesses to interview? Is this material probable cause in some way to arrest somebody or to search some other location? Or is this exonerating or not evidence of criminal activity? In which case, it might be a basis to sort of shut something down or wind something down. All of those things are possible,” he said.
Other close aides to Trump might also be weighing their own next steps.
“If you are the lawyer for, in no particular order, Mark Meadows, John Eastman, Jeffrey Clark, Rudy Giuliani and others known or unknown, you now have to take quite seriously the Justice Department’s interest in prosecuting crimes,” Barrett said.
“These individuals certainly are in some potential jeopardy, and a lawyer has to advise their client that there is something — there is an approach — and that approach would be reaching a deal.”
The search could result in some fallout for Garland. Republicans are threatening serious oversight of DOJ should they seize majorities in Congress following the midterms, while a handful have demanded a briefing as early as Friday from him and FBI Director Christopher Wray.
But Garland has been unwilling to reveal any information about the Justice Department’s investigations, and it’s unlikely the full scope will be revealed unless prosecutors have an opportunity to lay it out in court.
“Only Garland and company know what’s behind the curtain,” Barrett said.