FBI agents executed a search warrant at former president Donald Trump’s Florida home on Monday, taking about a dozen boxes of material after opening a safe and entering a padlocked storage area. The Washington Post reported Thursday that agents were seeking items including White House material related to nuclear weapons programs.
Trump and his allies have denounced the search as unlawful and politically motivated but provided no evidence to back that up. Trump has refused to share a copy of the warrant with the public.
On Thursday, the Justice Department asked a judge to unseal the warrant, saying that the former president had disclosed that the search had taken place and that the public had a right to learn more about the extraordinary search of a former president’s residence. Trump announced on social media overnight that he would not oppose the request.
That means the public could see a version of the warrant — with sensitive information redacted — sometime in the near future.
Here’s what you need to know about search warrants and what they may signify in an investigation:
What is a search warrant?
A search warrant is permission from a judge allowing law enforcement to search a location or item for evidence that could be connected with a crime. These warrants are typically narrow in scope; police or federal agents must know what they are looking for and where they are searching for it before they execute a warrant.
The barriers to obtain search warrants are not particularly high. Law enforcement must present probable cause that evidence of a crime exists at a specific location, said Stephen A. Saltzburg, a law professor at George Washington University. This is far easier than the “beyond a reasonable doubt” threshold needed to convict someone in court.
“There is no mathematical equation for it,” Saltzburg said. “The Supreme Court has never put a percentage on it. The odds can be less than 50 percent” that there is incriminating evidence.
On its own, a search warrant is not proof of any crime — only that a judge believes that law enforcement has probable cause to search something as they investigate potential wrongdoing.
“A reasonable person would have to think there is evidence of crime in that location,” said William G. Otis, a former federal prosecutor in Virginia.
Does searching a former president’s house mean a higher threshold?
Legally, there is nothing that says investigators need to meet a higher standard to obtain a search warrant as part of an investigation involving a former president. In practice, however, according to legal experts, investigators would want to ensure there is a very high likelihood that the evidence exists before they seek such a warrant.
“It’s not because the Constitution requires it,” Saltzburg said. “It’s because any judge would know it’s a political hot potato.”
How do investigators obtain a warrant?
Investigators must submit an application to a judge that includes a sworn statement — an affidavit — detailing what evidence they are looking for, why they believe it is at a certain property and what crime they believe was committed. If a judge believes investigators have probable cause to search the property, he or she would sign off on it.
“You can’t go on a fishing expedition. You cannot hold up a warrant to search for documents if you are really there to search for drugs,” said Kel McClanahan, executive director of National Security Counselors, a nonprofit law firm. “Search warrants are strictly criminal, and in order to get a search warrant you need to convince a magistrate judge that someone committed a crime.”
How is a warrant different from a subpoena?
A subpoena is a court-ordered request to hand over property or to show up in court. But, unlike a search warrant, law enforcement doesn’t show up to take the property. The person subpoenaed therefore has an opportunity to not comply, or could move or destroy the evidence officials are seeking.
Saltzburg said the FBI likely had clear reasons for seeking a warrant instead of a subpoena to obtain what agents were looking for at Mar-a-Lago.
“They could have done a subpoena, but the fact that they didn’t suggests they felt that, if they did, bad things would happen to the documents they were looking for,” Saltzburg said.
Search warrants could also allow investigators to take possession of classified documents without requiring lawyers for the person in possession of those documents — who may not have the requisite security clearance — to search through and hand over those documents.
The Washington Post reported this week that over months of discussions between Trump’s team and government officials about whether documents were still missing, some officials came to suspect Trump’s representatives were not truthful at times, according to people familiar with the matter who spoke on the condition of anonymity to discuss an ongoing investigation.
And Trump’s team did receive a grand jury subpoena earlier this year in connection with the documents investigations, according to two people familiar with the investigation, who spoke on the condition of anonymity to discuss details. Investigators visited Mar-a-Lago in the weeks following the issuance of that subpoena, and Trump’s team handed over some materials.
Can the public see the warrant?
In most cases, search warrants are open to the public. But judges will often seal warrants if the signed affidavits within them reveal witnesses and details that could compromise ongoing investigations. The Mar-a-Lago warrant is sealed.
But in an unusual public statement Thursday, Attorney General Merrick Garland announced that the Justice Department had filed a motion seeking to unseal the warrant and the inventory list describing in broad strokes what items were taken. The motion noted that Trump had publicly revealed the search shortly after it happened.
Lawyers for the former president can respond to the government’s filing with any objections to unsealing the warrant, with the judge overseeing the case deciding. Trump also could release the warrant himself.
The judge ordered the Justice Department to confer with lawyers for Trump and alert the court by 3 p.m. Friday as to whether Trump objects to the unsealing.
Late Thursday night, Trump said on social media that he agreed the document should be made public.
What is an inventory list?
Investigators write a list of all the materials they took from the person or property. They would then give a copy of the inventory list to the person they searched, or his or her lawyers. They would file a second copy of the inventory list in court.
If agents took classified documents from the Trump property, the inventory list would likely not be very specific, Saltzburg said. Agents would write it with the assumption that it would eventually become public and would not reveal any classified specifics.
“This one would be tricky, and they are not going to list certain kinds of documents,” Saltzburg said. “There is a limit on how detailed they would go on the inventory if there are classified documents.”
What happens next in the investigation?
The execution of a search warrant is just one step in the investigation of a potential crime, according to Otis. He said the Justice Department is rightfully quiet about ongoing investigations, so it is hard to determine where they are in the probe and how much evidence they have collected.
“No one knows exactly what the next step is,” Otis said. “Search warrants are an investigative tool. We do not know for sure that there is going to be a criminal case against Trump.”
Spencer S. Hsu contributed to this report.
The Jan. 6 insurrection
Congressional hearings: The House committee investigating the attack on the U.S. Capitol held a series of high-profile hearings to share its findings with the U.S. public. What was likely to be the panel’s final public hearing has been postponed because of Hurricane Ian. Here’s a guide to the biggest hearing moments so far.
Will there be charges? The committee could make criminal referrals of former president Donald Trump over his role in the attack, Rep. Liz Cheney (R-Wyo.) said in an interview.
The riot: On Jan. 6, 2021, a pro-Trump mob stormed the U.S. Capitol in an attempt to stop the certification of the 2020 election results. Five people died on that day or in the immediate aftermath, and 140 police officers were assaulted.
Inside the siege: During the rampage, rioters came perilously close to penetrating the inner sanctums of the building while lawmakers were still there, including former vice president Mike Pence. The Washington Post examined text messages, photos and videos to create a video timeline of what happened on Jan. 6.