The FBI search of Mar-a-Lago apparently focused on Trump's handling of classified materials.
Legal experts said a case against Trump would present the Justice Department with murky questions.
Trump's legal team has already noted his authority as president to declassify government records.
Between a series of closely-watched congressional hearings and a flurry of subpoenas and search warrants, this summer has shined a spotlight on parallel House and Justice Department inquiries into efforts by then-President Donald Trump and his allies to overturn the 2020 election.
But when it came time for a remarkable raid of Trump's South Florida estate, Mar-a-Lago, the FBI's focus fell instead on a matter that had receded from the headlines months ago: the former president's handling of classified material.
The Monday search left a number of questions in its wake. Among them: Now what?
The search confirmed that the Justice Department has opened a criminal investigation, but much remains unknown about the inquiry and Trump's legal jeopardy. In interviews, former Justice Department officials told Insider any consideration of charges against Trump will involve murky questions of law layered on top of the political sensitivities around prosecuting a former president.
For Attorney General Merrick Garland, the next steps could test his pledge to treat no one as above the law.
Federal agents opened a safe during Monday's search of Mar-a-Lago, where the FBI retrieved about a dozen boxes of documents, a lawyer for Trump said. Trump had previously turned over 15 boxes of documents to the National Archives early this year, but Justice Department officials reportedly grew suspicious that the former president or people close to him still retained some key records in spite of the investigation into the handling of government documents.
But former Justice Department officials and legal experts cautioned that Trump's status as a former president — and the singular authority he once held over the classification and location of records — could complicate the consideration of charges over the handling of government documents.
The FBI search "obviously shows that it has the attention of the highest levels of the Justice Department. People still need to be careful about not jumping to conclusions about the former president's own criminal exposure because of the unique authority that a president has with respect to classified information," said Brandon Van Grack, a former top official in the Justice Department's national security division who also served as a prosecutor in the special counsel investigation into Russia's interference in the 2016 election.
"Ultimately, there are some dots that would need to be connected before the conduct here would rise to the level of exposing a former president to an unauthorized removal and retention charge," Van Grack told Insider. "It doesn't mean it's not incredibly serious. But there still would need to be a lot more information that we have available before jumping to the conclusion that the president has serious criminal jeopardy."
The Hillary Clinton/James Comey history
The FBI's search has thrust to the fore a thicket of federal laws related to the handling of government records.
One such statute makes it a crime to remove classified information and retain it at an unauthorized location. Another law criminalizes the mishandling of national defense information such as documents, maps, and photographs.
And yet another law makes it a crime to intentionally conceal, remove, or mutilate government records regardless of whether they are classified. (The FBI search coincided with Axios' publication of photographs, obtained by the New York Times's Maggie Haberman, showing torn-up notes bearing Trump's handwriting inside a toilet bowl.)
Recent history has shown that the mishandling of classified information does not necessarily result in a felony conviction or even charges.
In perhaps the highest-profile past example, the FBI in 2016 closed an investigation into Hillary Clinton without recommending charges after examining whether she mishandled classified information found on a private server she used while serving as secretary of state.
Then-FBI Director James Comey, in an unusual and controversial public address, called Clinton's conduct "extremely careless," but he said agents found no indication that she broke the law. No reasonable prosecutor, he said, would have brought a case.
A year earlier, former CIA Director David Petraeus pleaded guilty to a misdemeanor charge that he unlawfully removed and retained classified material. The plea deal allowed Petraeus, a former top Army general, to avoid prison time in connection with notebooks — containing classified information — that he shared with his biographer, with whom he was having an affair.
In response to the Mar-a-Lago raid, Trump referred to the search as a "weaponization of the Justice System" and alleged prosecutorial misconduct. Trump did not immediately raise or hint at possible legal defenses apart from his assertion that the search was a politically-motivated "attack by Radical Left Democrats."
But Trump's lawyer Christina Bobb alluded in an interview to a possible defense: the former president was the original classification authority until he left office on January 20, 2021, and could have declassified materials found at Mar-a-Lago.
It is the president himself who gets to decide what is a presidential record ... And the same thing with any potential classified information, which I don't believe there was any down there," Bobb said on Real America's Voice. "We had done a search of it before and didn't find anything noteworthy. Yet I'm sure that they are claiming that there was something terribly egregious that's a grave matter of national security, but we'll find out."
David Laufman, a former top official in the Justice Department's national security division, told Insider this week that prosecutors will likely seek to determine whether Trump formally exercised his declassification authority over any records at Mar-a-Lago deemed to contain government secrets.
"He would have had authority as President to declassify documents. But there is a formal process that accompanies declassification, it just doesn't exist in your head," said Laufman, now a partner at the law firm Wiggin and Dana.
"It's not a subjective thing. It's something that gets memorialized, recorded, and formalized."
Treating Trump like anyone else
Still, pointing to Trump's past authority, legal experts raised doubts that the former president would face prosecution over his handling of government records. His role as president, many said, distinguishes his case from l0wer-level government officials who have faced charges over removing and retaining classified material.
"Prosecutors usually don't charge criminal cases that turn on fuzzy, unresolved questions of law," wrote Robert Kelner, a prominent criminal defense lawyer, on Twitter. "Given a president's absolute authority to declassify documents, a case based solely on a departing president retaining classified documents would be more than a little surprising."
To obtain a search warrant, the Justice Department needed to prove to a federal judge that it had probable cause to believe a crime was committed and evidence could be found at Mar-a-Lago. But legal experts speculated, given the potential legal hurdles for any prosecution, that the search was simply a means to secure documents that the former president had failed to turn over after dialogue with the Justice Department.
But Laufman said that, if Trump committed a felony with regard to the handling of classified information, "he should be held accountable like any low- or mid-level, government official or former government official should be."
"It's not headhunting to charge him with a crime like this if they have sufficient evidence of a crime to meet their burden of proof. He's being held to the same standard, the same rule of law as any government official or former government official," Laufman added.
"He shouldn't be treated worse than anybody else, he shouldn't be treated better than anybody else."
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