Trump allies in uproar after FBI agents search Mar-a-Lago in missing documents case

‘You don’t use a search warrant unless you think there’s a danger that the person is going to destroy stuff,’ former federal prosecutor tells The Independent

Allies of the former president Donald Trump have reacted with fury to the FBI’s execution of a search warrant at his Palm Beach, Florida, home as part of a criminal investigation into whether he unlawfully mishandled government records, including highly-classified documents.

According to a source familiar with the investigation, the search of Mr Trump’s residence at the mansion known as Mar-a-Lago was part of a long-running probe by the Justice Department into Mr Trump’s possession of documents that were required to be returned to the National Archives and Records Administration (Nara) when he left office in January 2021.

Mr Trump broke the news of the search himself in a statement released by his political action committee in which he said his home was “currently under siege, raided, and occupied by a large group of FBI agents” who, among other things, “broke into” a safe belonging to him. He also claimed, without offering evidence, that the raid on his Palm Beach residence was “prosecutorial misconduct” and “the weaponisation of the justice system” meant to keep him from running for president the 2024 election.

Prominent Republicans, many of whom have traditionally cast themselves as allies of law enforcement, responded with calls for vengeance – legislative or otherwise – against the entirety of the federal law enforcement apparatus, and accusations that the Biden administration was unfairly persecuting Mr Trump.

Though Department of Justice officials have not made any public statement on the search of Mr Trump’s home, the highest-ranking House Republican – Minority leader Kevin McCarthy – issued a belligerent statement directed at attorney general Merrick Garland.

“The Department of Justice has reached an intolerable state of weaponised politicisation,” he said. When Republicans take back the House, we will conduct immediate oversight of this department, follow the facts, and leave no stone unturned. Attorney General Garland, preserve your documents and clear your calendar.”

One of Mr Trump’s home-state senators, Marco Rubio of Florida, took to Twitter to accuse the FBI of emulating the actions of law enforcement in the former Soviet Union.

“Using government power to persecute political opponents is something we have seen many times from 3rd world Marxist dictatorships … But never before in America,” he said.

Protesters stand in front of Trump Tower in New York after news that the FBI had searched President Donald Trump’s Mar-a-Lago home in Florida (AP)

Another Floridian, governor Ron DeSantis, a Trump ally who is rumoured to be a potential challenger to Mr Trump in a 2024 presidential primary, called the judge-approved search of the ex-president’s home “another escalation in the weaponisation of federal agencies against the Regime’s political opponents”.

Another of Mr Trump’s most fervent congressional allies, representative Marjorie Taylor Greene of Georgia, was even more blunt in her reaction, taking to Twitter to call for the defunding of the FBI.

While the search of the former president’s home took many in Washington – including the White House and most of Congress – entirely by surprise, the law enforcement action was just the latest chapter in a long-running dispute between the ex-president and the government he once led over documents deemed to contain national defence secrets.

Under US law, a sitting president has plenary authority to declassify any classified information he decides that he wants to make public, and American chief executives have access to any and all of the most sensitive information in the possession of the US government.

A Trump supporter protesting near his golf club in Bedminster, New Jersey (Reuters)

But that authority evaporates when a president’s term expires, and Mr Trump would have violated multiple federal laws if he wilfully retained government records – classified or not – without authorisation; such US criminal code provisions lay out stiff penalties, including prison time, for anyone who “wilfully injures or commits any depredation against any property of the United States” or “wilfully and unlawfully conceals, removes, mutilates, obliterates or destroys” government documents”.

The FBI search of Mr Trump’s home followed an earlier trip there by federal agents to discuss the ex-president’s improper retention of records he had ordered removed from the White House before his term ended, according to a source familiar with the prior visit.

Mr Trump’s continued possession of federal records has been under scrutiny since January, when the National Archives and Records Administration said it had recovered 15 boxes of government records from the ex-president’s home. The contents of those boxes, which reportedly included a letter to Mr Trump from North Korean dictator Kim Jong-un, have been said to contain material so highly classified that such documents could not be described without violating laws against disclosure of national defence information.

Bradley Moss, a Washington, DC attorney who specialises in national security law, told The Independent at the time that Mr Trump had lost any authority to possess classified information once he became a private citizen, and said the ex-president could also face prosecution for mishandling classified documents if the letter from Mr Kim – or any other classified material – was transported to Mar-a-Lago in anything but an authorised means for transmitting such material.

“I don’t see how those were in any way … unclassified,” he said at the time, adding later that Mr Trump’s alleged unlawful retention of such materials “could be a very easy case for criminal exposure”.

Justice Department officials appear to be making efforts towards bringing just such a case against the former president.

According to the New York Times, the Department of Justice began presenting a grand jury with evidence regarding Mr Trump’s record-handling practices earlier this year, and prosecutors subsequently issued a subpoena to Nara for the boxes of classified documents which had been recovered from Mar-a-Lago. The Justice Department’s probe into his record-keeping habits is separate from two other grand jury investigations into Mr Trump’s attempt to overturn the 2020 election and the 6 January 2021 attack on the Capitol that resulted from it.

Nick Akerman, a former federal prosecutor who served on the Justice Department team that investigated Richard Nixon during Watergate, told The Independent that obtaining a search warrant for Mr Trump’s property would have to clear a very high bar given his status as a former president.

“Dealing with the former president, this thing is got to be bulletproof. It’s got to have all the details. It’s not going to be just a skimpy probable cause affidavit – it’s probably going to be beyond a reasonable doubt,” he said.

Mr Trump is not the only figure associated with his former administration who is in legal jeopardy over unlawfully retained records. Last week, Department of Justice lawyers filed a lawsuit against the former White House trade advisor Peter Navarro in which they asked a judge for a writ of replevin – a judicial order commanding the return of unlawfully-held property – to authorise “the recovery of any presidential records in the possession, custody, and/or control of Mr Navarro,” who has refused to give Nara copies of emails from his personal account on which he conducted government business.

Asked why the government would not take the same route with Mr Trump, Mr Akerman said Mr Trump’s known penchant for destroying documents – including by flushing them down toilets – likely figures prominently into why the Justice Department sought to have agents execute a search warrant rather than pursue recovery of documents in civil court.

“You don’t use a search warrant unless you think there’s a danger that the person is going to destroy stuff,” he said.