The Trump Mar-a-Lago (aka “Winter Whitehouse”) Search Warrant: How much (or little) evidence does the Government need to search your home, even if you’re a former President?
What crime did federal authorities believe was committed—Presidential Records Act?
Federal agents recently raided former President Donald Trump’s Mar-a-Lago home after a Florida Federal Magistrate approved a search warrant following the justice departments application. The affidavit of probable cause for the warrant isn’t available to the public but it is speculated that federal authorities believed that former President Trump or members of his staff had not returned all documents and other materials which were the property of the federal government. The alleged crime therefore was a violation of the Presidential Records Act. A month prior to this search, 15 boxes of alleged “important records” from the Trump presidency, such as communications, gifts, and letters from world leaders were sent from Mar-a-Lago to the National Archives.
The Presidential Records Act was created 1978 after President Nixon sought to destroy records relating to his presidential tenure after he resigned in 1974. Prior to this law, there was only a policy that a president’s records were considered private property. This law made it clear that presidential records are public property. The PRA requires the President to ensure preservation of records documenting the performance of his official duties (44 U.S.C. § 2203(a)). Many Republicans and Democrats, have agreed, however, that this search, if it pertained to this Act, was simply outrageous government overreach,
Who can declassify government records?
President Trump’s lawyers, however, have indicated that any documents taken from the White House when Trump left it were declassified and therefore not public property. The declassification procedure and process is a legal grey area. In most situations, when documents are declassified, there is a Presidential Memo pertaining to the declassification, which the President signs. The President has wide latitude to declassify and there is no strict formal procedure that must be followed. It is important to keep in mind that declassified document, therefore, come down to a factual dispute and would be based on the strength of the evidence either way.
How did federal authorities obtain a search warrant for the Trump home in Florida?
Nearly all warrantless searches of home are unconstitutional and law enforcement therefore, in most all investigations, need a search warrant. Without a warrant, all evidence obtain is inadmissible. In general, search warrants indicate that federal authorities have evidence of ongoing criminal activity at a location where they intend to carry out a search. Warrants are often used in situations where authorities believe that the items in question will be found.
To obtain a warrant, federal agents must submit an Affidavit of Probable Cause that details what materials or items they expect to seize during the search and why those items or materials are in that location. A Judge reviews the Affidavit and signs off on the warrant if the Judge believes that the information provided is sufficient probable cause.
What is probable cause?
Probable cause does NOT equate to guilt and is simply the belief that a crime has occurred and person who is the subject of the investigation committed the crime. State and Federal government authorities need far less evidence to obtain a warrant than is needed to obtain a conviction. The evidentiary standard for a criminal conviction in the United States is guilt beyond a reasonable doubt; this is the standard at the federal and state level!
In the Trump case, Florida Federal Magistrate, Judge Bruce Reinhart, approved the warrant. Reinhart was appointed as Magistrate Judge in 2018 after ten (10) years in private defense practice. Prior to that he spent twelve (12) years as a federal Prosecutor. In private practice, Reinhart represented the late Jeffrey Epstein who was found dead in August 2019 after an apparent suicide awaiting trial on federal sex trafficking charges.
What, where and when could federal agents search at President Trump’s Mar-a-Lago mansion?
Federal agents executed the warrant at approximately 9:00 a.m. and left the Trump residence at approximately 6:30 p.m. This is very standard as most search warrants must be executed during the day unless special permission is to execute a warrant at night. After Trump became President in 2017, Mar-a-Lago was used to host meetings with international leaders and served as the primary residence for Trump and his wife.
How large is President Trump’s Florida Estate aka Winter Whitehouse?
It is the second largest mansion in the state of Florida and the 24th largest mansion in the United States. President Trump purchased property in 1985 for $10 million. It has 58 bedrooms, 33 bathrooms, 12 fireplaces, a 29-foot marble dining table, and 3 bomb shelters! It was declared a national landmark in 1980. Ironically, in 1973, the former property owner Marjorie Post, heir to the Post Cereal Fortune, gave the mansion to the United States as a testamentary gift, through her Last Will & Testament to serve as a “winter Whitehouse” in 1973. The federal government, however, returned the residence to the Post Foundation in 1981 due to immense cost of maintenance and security issues.
When agents entered this historic mansion, they informed Trump’s security and Secret Service that they were permitted to “go anywhere”. This is correct and legal, as a search warrant allows law enforcement to search anywhere items named in the warrant could be found.
Given that the federal authorities were looking for documents, they would have been permitted to search every and all containers or rooms within the home, including former First Lady Melanie Trump’s bedroom, along with Trump’s private office. Federal authorities allegedly broke open safes to look for documents; this is again legal, provided that the warrant had sufficient probable cause and properly articulated the items in question.
If the search warrant on Trump’s home was at all politically motivated, it could backfire. Both Democrats and Republicans have criticized the action as unconstitutional government overreach. While President Biden has indicated that he or his administration has no involvement in this case, it is clear that Biden or another presidential opponent would benefit if Trump was indicted on federal charges.
What must a search warrant and its affidavit of probable cause contain for it to be constitutional and admissible in court?
While search warrants are permissible under our state and the United States Constitutions, law enforcement must satisfy very specific requirement to obtain one and even then, the warrant itself must contain certain information. These are same requirements whether is a former President or just any average citizen.
Here are 10 “must haves” for a search warrant.
- A warrant MUST HAVE an affidavit of probable cause attached to it which tells the person issuing the warrant that there is probable cause for the search and seizure of the item in question. Probable cause is the reasonable expectation that a crime was or is being committed and it’s the same standard that law enforcement must satisfy to arrest a person for a crime.
- A warrant affidavit of probable cause MUST HAVE been based on reliable information by some witness or an informant;
- A warrant affidavit of probable cause MUST HAVE the information used to obtain it corroborated by another source other than that same witness or the informant.
- A warrant MUST be signed and sealed by the issuing judge,
- A warrant MUST have a specific date and time of issuance
- A warrant MUST identify specifically the property to be seized
- A warrant MUST name and describe with particularity the person or place to be searched,
- A warrant MUST be executed within a specified period of time not to exceed two days from the date of issuance
- A warrant MUST be served in the day time unless otherwise authorized on the warrant,
- A warrant MUST contain state title of the judicial officer who issued the warrant. This person MUST also certify that he/she has found probable cause exists based upon the facts sworn to or affirmed by police based on the witness or the informant.
If you have questions about search warrants or any type of government search, call our law firm today!
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