‘The Opposite of a Raid’
A former federal prosecutor explains what might have gone into the search warrant executed at Mar-a-Lago.
Two days after FBI agents executed a search warrant at Mar-a-Lago, details about the underlying investigation are still scarce. News reports suggest that it is connected to concerns around presidential record-keeping—that Trump White House documents that should have been in the hands of a professional archivist somehow ended up on vacation at the former president’s Florida home.
No search warrant has been made public yet (though many were quick to point out on Twitter that the former president’s team could legally do so, if it wished). In a statement, Trump decried the “raid” as politically motivated.
What does it take to get a search warrant like the one used on Monday approved? I talked with Mary McCord, the executive director of the Institute for Constitutional Advocacy and Protection and a visiting professor at Georgetown University Law Center. She is also an alum of the Justice Department, having served as both the acting assistant attorney general and the principal deputy assistant attorney general in the department’s national-security division.
McCord told me that she doesn’t think “raid” is a fair description of what went down in Florida this week, and that—despite the very atypical nature of the person being investigated—this seems to be a pretty typical search-warrant execution, based on what we know so far.
Our conversation has been edited and condensed for clarity.
Caroline Mimbs Nyce: How easy is it to get something like this approved?
Mary McCord: A search warrant is presented to a federal judge, pursuant to Rule 41 of the federal rules of criminal procedure. And it must establish probable cause that evidence of a crime will be found at the location to be searched, and is present there at the time it will be searched. So in other words, you can’t have probable cause based on information that’s too old or too stale to warrant a belief that that evidence would still be at the location.
That is done through an affidavit by a federal agent, who states the facts that support probable cause.
Then it’s up to the federal judge to determine whether he or she agrees that the facts in that affidavit, which is a sworn declaration by the federal agent, do in fact establish probable cause. And if so, the judge will sign the warrant, and then the warrant can be executed.
Nyce: What would it take from the Department of Justice’s perspective to pursue something like this?
McCord: In an ordinary case that’s not involving a former president, depending on whether the case is sensitive or not, the federal agent would come to a prosecutor, usually someone at the U.S. attorney’s office, and have them sign off on the search-warrant request, and then go present it to a judge. And if it was a particularly sensitive case, that prosecutor might run it up the flagpole all the way to the U.S. attorney [for that district]. If it’s a really sensitive case, then that U.S. attorney might run it up the flagpole over at main Justice.
Well, this is a really sensitive case, right? So this probably wouldn’t have even been initiated by some junior prosecutor in the U.S. attorney’s office. This is probably something that’s been discussed for some period of time at the highest levels of the department.
We have at least some reason to believe that the National Security Division [of the Justice Department] is involved, because of reporting that Jay Bratt, who’s the chief of counterintelligence and the export-control section of the National Security Division, and others made a visit to Mar-a-Lago a month or two ago, I guess to discuss issues related to presidential records and potential classified information that might be at Mar-a-Lago. We don’t actually know if it’s related. I don’t know that anybody has seen the search warrant or the affidavit other than people at Mar-a-Lago. But, based on reporting that it had to do with the mishandling and storage of classified information, the fact that the chief of counterintelligence and export control was at Mar-a-Lago recently would suggest that this was something that’s been discussed with the department probably for some time.
And when we’re talking about the former president, I think we can feel pretty confident that this request to use this kind of process would have gone all the way up to the attorney general. I can’t say that for certain. But certainly when I was there, if we had been wanting to get a search warrant for a former president, we would have definitely run this all the way through to the attorney general.
Nyce: Based on your past experience, how long would you suspect this has been in the works?
McCord: That’s hard to say. You can’t really generalize about that, because every case is different.
I will say, though, that we know that there were documents and other presidential records missing. The Washington Post reported that the National Archives reached out to the former president. And that led to the 15 boxes of materials being returned to the archivist because they were presidential records that by law had to be preserved.
So from then on, at least there was knowledge that there were records that had gone to Mar-a-Lago that shouldn’t have gone there. There’s at least reason to believe, given what’s been reported about the execution of this search warrant, that perhaps not everything was returned. Or there’s concern that, in the case of some of the things returned that were super sensitive, that possibly there were copies or something like that that remained at Mar-a-Lago.
One thing that I think is significant about the whole exchange between the archivist and the Department of Justice in Mar-a-Lago with respect to the 15 boxes of documents is the extent to which that was “just an accident,” right? That these things were packed up in haste and sent to Mar-a-Lago. There would be no more “accident” excuse now, because the return of those documents provided the knowledge that the documents were part of the presidential records and provided knowledge about presidential records, classified and not classified, needing to stay in Washington—and certainly classified [documents] needing to be properly secured in the appropriate level of a safe or even a SCIF (a secured, compartmentalized information facility). And so anything that was retained after that, I think there’s strong evidence that it was done willfully, or at least with gross negligence. Because they were certainly put on notice, given the 15 boxes that were returned, that no president records should have been remaining at Mar-a-Lago.
Nyce: What’s the difference between a raid and executing a search warrant?
McCord: A raid is just a term that often the person whose premises got searched will use, because it’s kind of hyperbolic, and it sends a signal that there was something inappropriate or unwarranted about the activity. And so I think it’s not the right term to use here.
This was the execution of a court-approved search warrant. It happened in daylight hours. It wasn’t in the middle of the night.
Verbiage I’ve heard from the former president about, “They [even] broke into my safe”: No, they had authority by virtue of the search warrant to enter any kind of compartments or containers that the search warrant authorized. Of course, I’m assuming it authorized entering a safe, but none of us have actually seen the search warrant. Assuming it authorized that, there’s nothing unlawful or unwarranted. So words like raid and breaking into are really improper. And they send the message that the department and the FBI did something wrong here.
Nyce: Is a search warrant considered a last resort? Would they have first tried to obtain the docs by other methods?
McCord: It’s not always the last resort. That all depends on the investigation, and whether there are concerns that, if you try other means, then evidence might be destroyed or lost or what have you. And so every case is different.
Under Justice Department guidance—not by law, but guidance—the Justice Department will encourage prosecutors to use other methods of obtaining evidence where that’s feasible before they use a search warrant. But in plenty of cases, it’s not feasible and it’s not realistic. And you have to use a search warrant earlier rather than later. I don’t know where this case falls, because I don’t know exactly what that whole meeting was about a few months ago. We just don’t have enough details about that meeting.
Nyce: We’re seeing reporting that investigators were able to meet with the Trump attorneys in early June—that they reportedly asked to see the room where these documents were stored and that the attorneys obliged.
I was wondering if you had any sense of what would need to have happened in the interim for a search warrant to be issued. Does that suggest that things had soured in any way? Or could it just be a normal course of investigation?
McCord: It’s really hard to answer that without really speculating, because everything about that meeting is just, “As it’s been reported, they showed them a room.” I don’t know if that means that they showed them a room—if there were documents there that they were alarmed about, and they weren’t able to take them at the time, and then maybe tried to retrieve them later and weren’t successful and used a search warrant. That’s one possibility. I just don’t know enough about what occurred at that meeting to really speculate.
Nyce: Does anything about how this has unfolded surprised you?
McCord: It’s somewhat unprecedented to search the private home of a former president. So just knowing that this is a pretty significant step for the Department of Justice to take is—I wouldn’t say surprising to me, but it’s a big deal.
And I don’t think the department would do this for something petty. I think the department has some pretty serious concerns about the types of documents and information that might be there, not being properly stored and available to be shared with others who aren’t entitled to receive that information, including potentially foreign adversaries or foreign entities. So the fact that they went to this effort suggests that the department has some pretty serious concerns about what is still at Mar-a-Lago.
Nyce: But in terms of the actual process, it seems like this is pretty standard—other than it being a very, very atypical case.
McCord: That’s right. It seems like here they were trying to not make a big splash. They didn’t come in sirens blazing and with big, marked FBI coats like you see sometimes, right? They came in plain clothes, in the light of day. Coordinated with the Secret Service in advance, according to the reporting, so that it would be very civil. The opposite of a raid.
Nyce: Is there anything that you’re thinking about, based on your time at DOJ, that you think is worth people knowing in this moment?
McCord: I do think it’s important for people to understand that this was a court-authorized search based on probable cause. It wasn’t anything that’s unlawful. It wasn’t anything that doesn’t happen across the country every day as investigators seek evidence of crimes. This is what the process is supposed to look like when it’s necessary for an investigation. Notwithstanding the verbiage used by the former president, at least based on the current reporting, this looks to have been pretty textbook.
Nyce: We’re seeing a lot of accusations from the right that this was politically motivated. How are you reacting to that?
McCord: I’m not surprised. That’s par for the course now. Anything that the Justice Department does—or any other law enforcement, like the investigator in Georgia and the New York investigations—that has to do with Trump will immediately be attacked by extremists as being political, even when it is not at all. And that’s unfortunately the situation that we are in in the country right now, with the polarization being stoked by so much of the rhetoric from the former president and by disinformation. It’s just a knee-jerk reaction. As more information comes out, if people were to look at things rationally, I hope they would at least understand how the process works. But for many people, that’s just not going to matter—regardless of how sensitive the documents might have been or what the national-security threat might have been, or what the knowledge of the president might have been.
Nyce: What do you think the Department of Justice’s role is right now in terms of keeping the public informed on an investigation like this?
McCord: Their responsibility is to conduct their investigations in a way that is fair and that affords due process to any target of the investigation. And so they have to be very, very careful about speaking at all about any open investigations, because any statements made could really taint the investigation in ways that could look political. Any statements that the department makes could potentially be used by a target to say, I can’t get due process, because they’ve painted me already as a criminal.
So typically the department does not speak unless and until it makes a charge. It speaks through indictments or through charging documents that are filed in court. Sometimes you will have a prosecutor, particularly high-level, say they are investigating something—like Merrick Garland has said, We are investigating January 6. That’s perfectly fine. But speaking in more detail about individual investigatory steps and where they are in any investigation, I would not expect that at all.