Former president Trump has stated that officials visited his residence in early June—about two months prior to the actual raid—and seemed to accept the installation of another lock. Additionally, the FBI Mar-a-Lago warrant had ‘no legal basis,’ according to constitutional lawyers.
The warrant used to investigate former President Donald Trump’s Mar-a-Lago estate, according to two constitutional experts who served in the Bush and Reagan administrations, had no legal foundation.
The provisions the Department of Justice and FBI relied upon to conduct the raid earlier this month are superseded by a former president’s right under the Presidential Records Act, according to David Rivkin Jr. and Lee Casey, both of whom worked under Presidents Ronald Reagan and George H. W. Bush.
“The judge who issued the warrant for Mar-a-Lago has signaled that he is likely to release a redacted version of the affidavit supporting it. But the warrant itself suggests the answer is likely no—the FBI had no legally valid cause for the raid,” they wrote in the Wall Street Journal on Tuesday.
FBI agents were able to obtain all “physical documents and records constituting evidence, contraband, fruits of crime, or other items illegally possessed in violation of 18 U.S.C. §§793, 2071, or 1519,” according to the warrant and property receipt that federal Magistrate Judge Bruce Reinhart finally revealed earlier this month.
Additionally, “any government and/or Presidential Records created between January 20, 2017, and January 20, 2021,” which covers the entirety of Trump’s tenure as president, are among the materials that could be confiscated.
As a result, the two scholars said that “virtually all the materials at Mar-a-Lago are likely to fall within this category” but “federal law gives Mr. Trump a right of access to them.”
“His possession of them is entirely consistent with that right, and therefore lawful, regardless of the statutes the FBI cites in its warrant,” Rivkin and Casey wrote.
“Those statutes are general in their text and application. But Mr. Trump’s documents are covered by a specific statute, the Presidential Records Act of 1978,” they said, adding that a Supreme Court decision in 1974 affirms their argument. “The former president’s rights under the [Presidential Records Act] trump any application of the laws the FBI warrant cites.”
The 1978 statute “lays out detailed requirements for how the archivist is to administer the records, handle privilege claims, make the records public, and impose restrictions on access,” they noted. The law was enacted two years after former President Richard Nixon resigned. “Notably, it doesn’t address the process by which a former president’s records are physically to be turned over to the archivist, or set any deadline, leaving this matter to be negotiated between the archivist and the former president.”
The authors of the op-ed said that the federal agencies “could and should have sought a less intrusive” approach than a search warrant since the FBI and Justice Department were content with the insertion of a lock to a Mar-a-Lago storage room.
In a legal complaint filed earlier this week, the former president stated that officials visited his residence in early June—about two months prior to the actual raid—and seemed to accept the installation of another lock.
After seeing the storage area, one FBI agent informed Trump’s team: “Thank you. You did not need to show us the storage room, but we appreciate it. Now it all makes sense,” according to the filing.
“Counsel for President Trump then closed the interaction and advised the Government officials that they should contact him with any further needs on the matter,” it added.