The big question after the FBI search of Mar-a-Lago is what could they have been searching for? To get a search warrant — any search warrant — several conditions must be met.
(1) Someone must be under investigation for committing a crime. In this case, that someone is clearly Donald J. Trump, former president. He is what they call the "target" of the investigation.
(2) The search warrant must be signed by a federal prosecutor, and it must be accompanied by an affidavit listing why there is probable cause that a crime has been committed and that the premises are likely to be the place where evidence of the crime may be found. The affidavit must also provide a detailed list of what the prosecutors expect to find at the location.
(3) There must be a place for the materials removed from the search location to go. The FBI doesn't just conduct a search and then take the materials they seize back to FBI headquarters. The materials seized are part of a prosecution and may be used in a grand jury proceeding to get an indictment against the target of the prosecution, and the materials may end up as evidence in federal court if the target is charged and tried. Thus, on the day of the search begins a lengthy "chain of custody" of the materials seized from the property belonging to the target of the investigation. At every step of the process, the materials are bagged or boxed, sealed and signed for by officials from the office of the prosecutor who requested the warrant and authorized the search. In this case, that is the Washington office of the Department of Justice where a U.S. Attorney handles all prosecutions that originate within the District of Columbia. The materials will go to him or her, and from there to the grand jury in Washington that has been reported to be in the process of conducting a criminal investigation of the efforts to overthrow the results of the 2020 presidential election.
The big questions are these: What could those materials consist of? And what crime or crimes is Trump suspected of committing? There was a lot of speculation Monday night about violations of the Presidential Records Act and another federal statute which forbids removing official documents and materials and/or damaging them or distributing them to unauthorized persons. This is the federal law that was quoted all over the place because it contains the clause that any federal official found guilty of violating that law can be barred from holding federal office again.
That would be an outcome fondly wished for by Democrats and others who oppose Donald Trump and never want to see him near the Oval Office again.
What is the thing that Trump has always valued most in his life?
But I think the reason for the search of Trump's home may be even more serious than merely removing government documents. We've all read the stories reported in February of this year that some of the materials in the famous 15 boxes removed by Trump from the White House were classified and were so sensitive they could not even be described by the National Archives, which was seeking the return of the boxes and their contents. But I wonder, what could Donald Trump have kept that was written down? He has always been reported to be so allergic to written records that he never uses emails or text messages and famously never even orders people to do something for him, and certainly not by written order. According to Trump's former lawyer, Michael Cohen, people working for Trump are expected to figure out what he wants and do it without being told.
So, what kinds of documents could Trump want to take with him from the White House, at the risk of violating several federal statutes? What is the thing that Trump has always valued most in his life?
The answer is money, and the documents associated with getting or being paid money are usually contracts. Trump could have removed from the White House contracts he concocted while he was serving as president that would provide him money after he left office.
The other sorts of documents which might be valuable enough to be worth real money would be secrets regarding foreign nations that might be willing to pay money to learn what those secrets are. These may be the documents said to have been marked "Top Secret Sensitive Compartmented Information," or "TS/SCI." This is a level of security used to protect national security secrets, data and even technology which could affect national security if they fall into the wrong hands.
This is also the kind of information that is sought by foreign spies and paid for by foreign governments to American citizens who sell it to them. This is called espionage, and I think it may be possible that the FBI was looking for materials that are valuable as intelligence sought by foreign powers hostile to the United States.
It seems unlikely that the Department of Justice would search the home of a former president, something that has never been done in the nation's history, unless they are involved in an investigation of a very, very serious crime, such as walking away with secrets that are known to be sought by hostile foreign actors, not merely walking away with documents that don't belong to you. It's possible the DOJ may be investigating Trump not only for violating the Presidential Records Act, but for violating the Espionage Act.
It seems unlikely that the Department of Justice would search the home of a former president unless they are involved in an investigation of a very, very serious crime.
The DOJ prosecuted Sandy Berger, the former National Security Advisor to President Bill Clinton, for removing classified documents from the National Archives and taking them home with him. He was charged with taking classified, original intelligence documents on terrorism that had not been copied or inventoried. He was also charged with lying to FBI agents when questioned about the removal of the documents. He pleaded guilty to a misdemeanor charge of unauthorized removal of classified material, was fined $50,000, given two years probation and 100 hours of community service and stripped of his security clearance for three years. He later voluntarily relinquished his law license rather than face a bar association hearing after his guilty plea.
But Donald Trump is not Sandy Berger. He's not a former national security adviser with access to the nation's secrets. He is the former president who was in charge of the government which created secrets. He was the top official charged with keeping the nation's secrets.
The National Archives was said to have been in negotiations with Trump for months about returning the 15 boxes taken from the White House. After the boxes were finally returned, it was reported that the National Archives had found that certain documents were missing from the materials Trump returned to the Archives. After receiving the boxes from the former president, the National Archives turned its investigation over to the Department of Justice.
That's where we are now. Either the National Archives had an inventory of what was supposed to be in the 15 boxes so they could identify the missing materials, or someone close to Trump talked to the Archives and/or the FBI about which materials were not returned to the Archives by Trump.
Whatever the case, the missing materials were apparently sensitive enough that the FBI not only did a physical search of Mar-a-Lago, agents broke into the safe in Trump's office. In other words, the FBI damaged part of the former president's home in its search for the missing materials they were looking for.
The nature of those materials could well be revealed with Trump being charged with a federal crime by the Department of Justice. The DOJ has doubtlessly ensured that the nature of the materials will be shocking enough to justify not only the search of Trump's home, but the charges they file against him.
Stay tuned. There is more to come.
