The FBI executed a search warrant to search President Trump’s offices at his Mar-a-Lago residence.
I presume that a search warrant isn’t subject to Freedom of Information requests, otherwise the press would be reporting on their contents much more often. Or do they eventually become part of the public record?
Is the FBI or other law enforcement agencies allowed to disclose the text of a search warrant if they want to?
Could Trump disclose the text of the search warrant if he wanted to?
Yes. The key document, however, is the affidavit by law enforcement laying out the grounds for the judge. Trump’s team will get a copy (so they can challenge the legitimacy of the search) but I don’t recall if they get it immediately or not. The actual search warrant is usually pretty bare bones.
In my experience and at the state level, the affidavit isn’t released to the defense (or anyone else) until there is indictment. A copy of the warrant itself is left with the person under investigation or at the scene along with an inventory of what was taken. All the warrant has on it, basically, are the crime being investigated, what is being looked for and where the “looking” will take place. The name of the judge and LEO applying for the warrant also appear. In the event there is no indictment, the person can make a motion to get the affidavit (I think) IANAL.
They don’t get it immediately. The affidavit is regularly sealed by the issuing court until the investigation is complete and charges are filed (to protect the ongoing investigation). It is not uncommon for defendants/targets to file motions to unseal the affidavits early (after the warrant has been executed) and they’re met with mixed success.
I’m not actually sure if they are routinely unsealed if charges are not ultimately filed. But I assume the target (or the media, for that matter) could seek to have it unsealed.
Trump knows exactly what they were looking for, what they took, and why they took it. He could share that with the public, but I don’t see why he would since it wouldn’t help him on the PR front.
Just to follow up:
Suppose Trump says something false about the search. (I know, hard to imagine.) Could the FBI rebut his falsehood by stating what was in the search warrant? Or is there a legal restriction that would prevent them from doing so?
Why would they bother?
They probably wouldn’t, and I’m into the realm of imagination here. But suppose Trump was too say something outrageous like “The FBI went into the hotel and harassed my guests when they were supposed to be looking for records.” The search warrant would state, for example, that the FBI could search Trump’s residence and office. As a rebuttal to Trump’s falsehood, the FBI might consider releasing a public statement that they were only entitled to search Trump’s residence and office, and that they adhered to the conditions of the search warrant. In such a situation, they might also want to release the actual text of the search warrant.
My question isn’t “Would they?”, it’s “Could they?”.
Yes, they could. The contents of the warrant are not secret. A copy is left at the place searched. As stated above, different rules apply to the application for the warrant the the affidavit supporting it.
If they searched Nixon’s residence, I would believe this.
But Trump? He had never shown any sign that he understands what he’s doing.
Let me rephrase that… Trump’s lawyers know exactly what the FBI was looking for, what they took, and why they took it since they were there for the search and would have been handed the appropriate documents. I doubt Trump would have been so stupid to have never asked them for that information… but you never know.
Thanks to everyone who answered my questions!
According to this, which may not be completely authoritative:
Team Trump says it’ll keep Mar-a-Lago search warrant under wraps (msnbc.com)
The courts and the Department of Justice cannot release the contents of the warrant. Donald Trump and his lawyers could release the information, but have chosen not to do so.
Interesting. So a judge can place a search warrant “under seal” which means neither the court nor law enforcement can release the details of the search warrant, but the target of the search warrant may still do so. Thanks.
I’m not sure this is entirely right. Court records are presumptively public. But they can be placed under seal, which means the public cannot see them. Search warrants affidavits are routinely sealed. If you asked me in the abstract, I would have thought that the warrant itself (and the warrant “return,” i.e., the inventory which is filed with the judge) would be public, but I suspect that’s not true.
The court isn’t going to release a document it sealed… that’s what sealing means. (Although media outlets, for example, can and do seek to have documents unsealed as do targets of investigations).
I’m not sure that there is a legal restriction on law enforcement talking about the substance of the case (even if they can’t release the affidavit itself), but they’re not going to as a matter of policy. And, of course, preventing the disclosure of those details is the reason that the document is sealed in the first place.
None of this prevents a target from discussing what was taken and, I suspect, they can publish the warrant. (Not to be pedantic, but there is no such thing as an individual “target of a search warrant” – a search warrant authorizes law enforcement to search a place. It will often be the case that the target of the investigation and the owner of the premises to be searched are different, although probably not here).
What if the documents he didn’t return aren’t classified? Would that significantly decrease the chance of him going to jail or prison if convicted?
Is the act of taking documents from the White House to Mara-la-go a crime, or is it just not returning them? I would have thought he could take them wherever he wanted.
The votemaster’s take on this is instructive: https://www.electoral-vote.com/evp2022/Senate/Maps/Aug10.html#item-3
“There is zero chance the DoJ could have gotten a judge to sign off without compelling evidence of some sort of malfeasance. Until more details come out, the defenders of Trump don’t even know what they are defending. And it’s instructive that Trump himself has not seen fit to share a copy of the warrant. That paperwork could help make the case that he’s being pursued for something relatively trivial. His failure to blanket Truth Social and every other website he has access to with copies suggests strongly there is something much more damning in there than he’s letting on.”
Let me see if I follow this. Person A commits a crime with a weapon. Law enforcement have evidence that Person A travelled to Person B’s residence after committing the crime, and suspect he hid the weapon there. Law enforcement obtain a search warrant and then issue it to Person B prior to searching his residence. However, they don’t have to notify Person A, even though he’s the criminal suspect, because it’s not his residence. Is that correct?
Yeah, basically. And the search warrant isn’t “issued” to Person B. It’s to search 123 Main Street, which is Person B’s residence. (You can get a warrant to search a person, but most of time we’re talking about a warrant to search property). Under the federal rules, at least, they need to either give a copy of the warrant and inventory to the person whose property is searched (Person B) or leave it at the property that was searched, but there’s no requirement to tell Person A that they’re even under investigation.
To give you an example from my own experience: you can get a search warrant to obtain electronic files maintained on cloud servers; you execute the warrant on the hosting company (which did nothing wrong); and you don’t need to tell the target anything.
I don’t recall who but some elected republican is now calling for the affidavit (or at least parts of it) to be released. I hope Garland and DOJ don’t succumb and do so, even if the judge allowed it (and I don’t think he would). Make them sweat. No need to show your hand at this point. Of course, the Trumpers will cry that, “Something is being hidden! Conspiracy! Not fair!” Let 'em weep.