After FBI agents carted away about a dozen boxes of presidential records from Donald Trump's opulent Mar-a-Lago residence, the question hanging over that mountain of paperwork is: What kind of criminal case is the Justice Department building against him?
Federal authorities are focusing not only on whether the former president violated a law requiring him to turn over almost all of his White House documents to the National Archives, but also on whether Trump mishandled classified documents found at his Palm Beach resort.
Legal experts, including former federal prosecutors, say that the Justice Department and FBI would never have obtained a search warrant and launched such an unprecedented raid on a former president's home Monday unless Trump was suspected of committing a crime or possibly letting classified documents on national security circulate at Mar-a-Lago.
"There is no question in mind that they used a search warrant because the government was not getting the information they were requesting from Donald Trump," said longtime Miami attorney Mark Schnapp, who had worked as a federal prosecutor on public corruption and financial fraud cases.
"This was decided at the highest level of government," he said. "They had every right to be concerned who may have seen those classified documents."
One of Trump's lawyers, Christina Bobb, told Right Side Broadcasting Network that the raid on Mar-a-Lago "came as a shock." She said that the former president "has been very cooperative" with the FBI and Justice Department, even allowing agents to visit in June to talk about classified materials on the premises that needed to be stored in a secure place.
"The raid was really unnecessary and a bit overkill considering that we had never withheld anything from them in the past," Bobb said Tuesday.
But the FBI's search warrant, which was signed by federal Magistrate Judge Bruce Reinhart in West Palm Beach, said that Trump had failed to turn over his presidential documents, according to law enforcement sources familiar with the raid. The documents included classified materials that the National Archives and Records Administration has tried to obtain from Trump since he and his lawyers initially turned over 15 boxes of sensitive documents in January that the former president had brought to Mar-a-Lago.
The Presidential Records Act
Trump, like his predecessors in the White House, is subject to the Presidential Records Act. The law was passed in 1978 after former President Richard Nixon sought to destroy recordings made in the White House that documented activities related to the Watergate scandal.
When a president leaves office, the archivist takes custody of the records from that administration and is responsible for their preservation and for providing access to the public, according to a Congressional Research Service report.
"The Presidential Records Act requires that all records created by presidents be turned over to the National Archives at the end of their administrations," the National Archives said in a statement issued earlier this year.
Jason R. Baron, a professor at the University of Maryland's College of Information Studies and former director of litigation at the National Archives, said the law is clear-cut.
"The legal ownership of presidential records immediately transfers to the Archivist of the United States when a president leaves office," said Baron, who also worked as a civil trial attorney for the Justice Department. "There is no provision of the Presidential Records Act that allows a former president to take presidential records of any kind from the White House to his home. This applies both to classified records and unclassified records."
"Since the enactment of the [law], all presidents have respected that provision until the circumstances we're in now," he said.
Equally significant, Trump specifically faces scrutiny for the removal of classified materials from the White House to Mar-a-Lago, including documents labeled "Top Secret" to "Confidential." The law is titled the "unauthorized removal and retention of classified documents or material." It prohibits any employee of the U.S. government from "knowingly" possessing and removing classified information without authority to an unauthorized location.
"The level of intent [to make a case] does not require someone to know that they are violating the law," said Schnapp, the former prosecutor at the U.S. Attorney's Office in Miami. "They simply have to know they are possessing classified information."
Bobb said that anyone bringing charges is going "to have a hard time proving that he actually even knew anything was in the boxes or anywhere else."
Nothing of substance, Trump attorney says
It is not the first high-profile FBI investigation of a potential records crime. In 2016, former Secretary of State Hillary Clinton's use of a private server for government work was the subject of an expansive federal probe that consumed her presidential campaign and, by her own account, may have cost her the election to Trump.
The FBI director, then James Comey, ultimately accused Clinton of being "extremely careless" in her use of private email. But the agency did not find criminality and did not recommend charges against her.
It was Republican lawmakers, reacting to Clinton's email practices, who increased the penalty for unauthorized removal of classified material from a misdemeanor to a felony - a punishment now looming over the former president.
Valerie Shen, chief national security counsel to the House Oversight and Reform Committee for the Democrats during the panel's investigation of the FBI's probe into Clinton's use of email, said the FBI probe likely arose from another investigative body realizing that important documents were still missing, even after the National Archives had recovered 15 boxes of material from Trump earlier this year.
"The reason that Secretary Clinton's emails came to light at all was because of a Benghazi document request, and they actually had to respond, 'actually, we don't have that, it's on a personal server,' " said Shen, now vice president of the national security program at Third Way.
"To me, it's not a coincidence in the sense that it only came to light because people specifically were poking around," Shen said. "It wasn't just the FBI just looking around, asking if anyone was committing a records crime. It was brought to their attention by other investigating bodies."
Bobb, who was at Mar-a-Lago during the FBI search, told far-right media on Tuesday that she and the former president's other attorneys had already reviewed all of the classified documents stored in Trump's personal home before they were repossessed by law enforcement Monday night.
"We went through everything," Bobb told Right Side network. "There wasn't anything of substance in there."
Bobb said that the FBI is "not above" planting evidence, echoing a conspiracy theory circulating in right-wing circles.
But "I think it's more likely than not that they will come up with a bogus charge with little to no evidence," Bobb said. "Like, if they find something that was classified secret that has no significant meaning - whether it is meaningful or not, they can prosecute anyway."
Shen doubts the FBI and DOJ would authorize a fishing expedition, or that a judge would ever sign off on one.
"They hate getting involved in politics unless they absolutely have to for legitimate reasons," she said. "So I don't think it's memorabilia, I don't think they're trying to catch him on a technicality. I want to know what that is, because to me, it's linked to something much, much bigger than records policy in a vacuum."
Norm Eisen, ethics czar under former President Barack Obama and co-counsel for the House Judiciary Committee during Trump's first impeachment in 2020," said that federal investigators are "very likely looking at an extraordinary volume and scope and intentionality of document removal."
"There really is no precedent - there have been some very dramatic raids over the years, famously with organized crime, in business, and members of Congress," Eisen said. "So we've seen very famous raids over the years, but never one of a former president."