The Mar-a-Lago Search Warrant: A Legal Introduction

"The Federal Bureau of Investigation (FBI) recently executed a search warrant at former President Donald Trump’s Mar-a-Lago property in Palm Beach, Florida. A magistrate judge of the U.S. District Court for the Southern District of Florida later unsealed the warrant at the Department of Justice’s request which the former President did not oppose. The warrant authorized government officials to seize all “documents and records constituting evidence, contraband, fruits of crime, or other items illegally possessed in violation” of three federal statutes—18 U.S.C. §§ 793, 2071, and 1519. In addition to the warrant itself and its attachments, the court unsealed other material related to the search, including the cover sheet to the warrant application and an iinventory of property seized. Proceedings are underway to unseal a redacted version of the affidavit supporting the warrant, and former President Trump filed a motion asking the court, among other things, to appoint a special master to oversee the government’s handling of the seized material.

This Sidebar describes the process for and implications of obtaining a search warrant. It then examines the criminal offenses identified in the Mar-a-Lago warrant. Finally, this Sidebar analyzes presidential authority to declassify documents and the role of declassification for the crimes at issue.

Obtaining Search Warrants

The Fourth Amendment protects against “unreasonable searches and seizures.” When law enforcement conducts a search, the Supreme Court has said that the preferred process under the Fourth Amendment is to do so pursuant to a search warrant, although warrantless searches are reasonable in some circumstances. Rule 41 of the Federal Rules of Criminal Procedure and the Fourth Amendment itself establish a number of requirements for obtaining a search warrant.

Pursuant to the Fourth Amendment, a warrant must be based on probable cause, a standard the Supreme Court has described as “incapable of precise definition or quantification into percentages.” Exact formulations vary, but the Supreme Court has characterized the probable-cause standard as “the kind of ‘fair probability’ on which ‘reasonable and prudent’” people act. Probable cause is a higher standard than “reasonable suspicion” but does not require proof that something is “more likely true than false.” To satisfy the probable-cause standard to obtain a search warrant, law enforcement must generally show a likelihood that (1) the materials sought are “seizable by virtue of being connected with criminal activity” and (2) the materials “will be found in the place to be searched.”

Under Rule 41 of the Federal Rules of Criminal Procedure, law enforcement may make the probable cause showing through a written affidavit or, if “reasonable under the circumstances,” by sworn testimony—both of which embody the Fourth Amendment requirement that a warrant must be supported by “oath or affirmation.” Once law enforcement provides the affidavit or testimony to a judge in the correct venue—for example, a federal magistrate judge in the district where the property to be searched is located—that judge “must issue the warrant if there is probable cause to search for and seize” the property.

The Fourth Amendment dictates that the resulting warrant must “particularly describ[e] the place to be searched, and the persons or things to be seized.” Although a purpose of this requirement is to prohibit “general searches” permitting seizure of “one thing under a warrant describing another,” in practice warrants will sometimes use broad terms. For example, in Andresen v. Maryland, the Supreme Court rejected a particularity challenge to a warrant to search for and seize “other fruits, instrumentalities and evidence of crime at this [time] unknown.” The Court concluded that the phrase should be read in conjunction with the particular crime specified in the warrant—specifically in Andresen, a violation of a state false pretenses statute connected to a real estate transaction. In other words, the warrant’s particularity may be limited not only by the description of the materials to be seized but also by the specified crime to which they must pertain..."
Mar-a-Lago Search