We have our answer: no one is above the law.
At 9am yesterday, the Federal Bureau of Investigation executed a federal search warrant at Mar-a-Lago, home of former US president Donald Trump. A team of FBI agents dressed in plain clothes notified the Secret Service about the impending search before their arrival. Secret Service agents protecting the property facilitated their entry, but did not participate in the search. Trump was not present. He was in New York.
The search capped a remarkable news day, even by Trump standards. In the early hours, Axios published photos of two toilet bowls — one in the White House, the other overseas — containing the remains of shredded notes in Trump’s handwriting. This would be puerile if not for the fact that it is a federal crime to destroy presidential documents. Any documents.
It has previously been reported that Trump regularly destroyed documents during his term in office. Some he flushed down the toilet. Others he burnt. Those he simply discarded were retrieved by aides and painstakingly taped back together to comply with the Presidential Records Act. Enacted after the Watergate scandal, the PRA mandates that all presidential documents, official and personal, be preserved unless the archivist of the United States agrees in writing that they have no further value.
Like all presidents, Trump was informed about the PRA. Trump knew he was breaking the law when he destroyed documents. He did so anyway.
Mid-morning The New Yorker released excerpts of a new book, The Divider, by married journalists Susan Glasser and Peter Baker. These revealed that Trump had whined about “my generals” not being like Hitler’s generals in their loyalty to him. He wanted total subservience, just as Germany’s dictator had demanded. And people wonder why he stands accused of flirting with fascism.
These preludes collided like a thunderclap with the FBI’s search. There is much speculation, but little specific public knowledge, about the reasons for the search. Attention has focused on classified documents that Trump took with him when he left the White House. Per the PRA and other national security laws, this was illegal. The National Archives has been negotiating the return of the missing records, but authorities may have additional reason to believe sensitive materials have been mishandled.
What we do know is that for the search to proceed, the FBI would have needed to persuade a federal judge of probable cause that a crime may have been committed, that the search would be likely to discover evidence of that crime, and that evidence might be concealed or removed if not seized promptly.
Agents must provide a sworn affidavit attesting to the accuracy of the information supporting their application. Search warrants are issued pursuant to detailed Department of Justice protocols. Approval is required from the executive and judicial branches of government.
Given the target of the search, we also know that FBI director Christopher Wray, a Trump appointee, and Attorney-General Merrick Garland would have signed off on the search. Knowing that it would trigger a political firestorm, they would not have done so lightly. Nor would any judge have permitted the search without weighing its justification and the totality of the circumstances. The judge would require that the information provided be credible and current.
This was not a fishing expedition. Someone told them where to look.
Last night Trump issued a statement denouncing the search. Amid a litany of lies, he wallowed in typical self-pity, painting himself as the victim of political persecution, prosecutorial misconduct and the weaponisation of the justice system. From a man who has spent his entire life maligning others, and routinely demanding investigations of his political opponents, his claim is rich. He wailed “they even broke into my safe”. This has not been confirmed by the FBI.
One thing Trump has not done is release the search warrant. His representatives would have been given a copy during the search. Neither the FBI nor DOJ can disclose it, but Trump can.
Of course, he won’t. The warrant would list the evidence sought, where it was believed to be located, and the crimes believed committed. He could also share the inventory of items seized that would have been compiled by the FBI and handed to his representatives.
It goes without saying that a search conducted by law enforcement of a former president’s residence is unprecedented in American history. For the Trump era, it’s just another page of another chapter of an unprecedented presidency.
