Florida Criminal Defense and DUI Defense Blog

29Aug, 22

Associate Attorney Wendy Diaz takes a look at the timeline for the warrant that was executed by the F.B.I. at Mar-A-Lago.

warrant searchThis is something of a first of its kind. No president has ever been served a warrant upon his home, including President Nixon.

Before we get into the specifics as to what happened on August 8, let’s talk about the players of the game, so that way, you understand more about what’s going on.

The warrant is basically a court order that allows a law enforcement agency to enter upon a person’s home and search for certain evidence of a potential crime, or of a potential civil issue that could lead to a crime. So the first part of the warrant comes when law enforcement starts their investigation, but they don’t have enough for probable cause for an arrest. That’s where they go to a state attorney.

In this case, the Federal Bureau of Investigation goes to the Attorney General. And the Attorney General looks at what they have and sees whether or not it can go towards a judge. Then the judge reviews that warrant and decides whether there is enough to go into the home to search for whatever the law enforcement agency is looking for.

Once the warrant is issued, the law enforcement agency obtains the items that they’re looking for, and they leave a copy of the warrant in an inventory of what they have taken upon the owner of said property.

So in this case, the Federal Bureau of Investigation was doing their investigation. That investigation led them to the Attorney General’s office, because they needed to enter upon President Trump’s home to obtain more evidence.

That’s where the Fourth Amendment kicks in.

Nobody may enter into a person’s home or search a person’s home papers and effects without a court order. That is reviewed by the Attorney General’s office and it goes to a judge. A judge also reviews it and then says, “Yes, there is enough for a warrant” or “No there isn’t enough for a warrant”.

If there is enough for a warrant, the judge signs it and that law enforcement agency serves the warrant upon that person.

The players of the game.

The obvious ones are former President Donald Trump and his home, Mar-A-Lago, in Palm Beach, Florida.

FBI director Christopher Wray. Keep in mind Christopher Wray was appointed by President Donald Trump on August 9 2017. And President Biden just kept him on.

The Attorney General is Merrick Garland. That name might sound a little bit familiar to you, because when Justice Antonin Scalia died, may he rest in peace, Obama had nominated then Federal Judge Merrick Garland to take his position. However, the Republican Congress at the time, because it was an election year, blocked it until President Donald Trump became president. He nominated Neil Gorsuch, who then got the job. So time went on. President Biden won the election, and then he nominated then Judge Garland, and now he is the acting Attorney General.

Attorney General Garland was the one that personally reviewed the warrant for Judge Bruce Reinhart to sign it.

Now, the Department of Justice is a sub branch of the Attorney General’s Office. So the Deputy Attorney General is a woman by the name of Lisa Monaco.

I’ve already mentioned Bruce Reinhart. He’s the judge that signed the warrant. And he’s also the judge that agreed to unseal the warrant.

President Trump could have done it, because it’s his right to say, “This is what they’re disclosing.” But the government agency must obtain permission to disclose that information.

This specific warrant involves the National Archives record administration, and General Counsel Gary Stern. He’s the one that has been talking with Trump’s team and obtaining a lot, if not all, of the documents since President Trump left office in January 2021 So we’re going on about nineteen months.

This warrant has zero relation to the congressional hearing on the January Six committee, the Independent Department of Justice investigation also about January 6, President Trump taking the Fifth Amendment with New York Attorney General (who are all investigating the Trump Organization). That also happened on Monday August Eighth, which was the same day of this warrant. And it has nothing to do with what happened on Tuesday, August 9, when the Federal Appeals Court denied his request to block the House committee from getting his tax returns.

Now, what is the warrant actually about?

It’s essentially about documents he may have. Well, he did have them, because they took them out of Mar-A-Lago. These were documents that he removed from the White House and put them at Mar-A-Lago during the last few days of his presidency back in January of 2021.

I do want to note that the Trump team was cooperating with the National Archives Records Association, NARA for short. And in that time, NARA obtained about 15 boxes worth, and that’s not inclusive of what they obtained in the warrant on Monday, August the Eighth.

We don’t know why the warrant was served, Trump alleges a political motivation, because the 2024 election is coming up.

Now, this is where we can look at the timeline.

January 2021, he leaves. So between January 2021 and May 2021, cleaning house inventory, everything getting ready for what I assume to be the presidential library or any type of historical buildings or foundations that might request any memorabilia from the president’s term. So I guess during that time between May of 2021 until the end of the year, NARA discovers that things are missing. Some of them have to do with North Korea. Some of them have to do with Sharpie-gate and Hurricane Dorian. And other miscellaneous documents that were relocated to the Trump family home at Mar-A-Lago.

And when I say “miscellaneous documents”, I don’t mean any type of Joe Schmo. It’s just that’s the best word I can find for a bunch of classified documents (they use different words that to me essentially mean classified, special operations, special sensitivity documents – a lot of those types of things).

The NARA lawyer, Gary Stern, reaches out to the Trump team and starts getting a little bit frustrated because they have been handing over documents at a very slow pace. Happy New Year, we’re moving past January 2022. The Trump team hands over 15 boxes to NARA. NARA discovers that documents have been torn and taped back together, and some are incomplete. They’ve also discovered that not all of the documents have been reconstructed, whether it’s because it was too much work or they’re still missing pieces. Who knows? Insert conspiracy theory here.

According to NARA, some of the boxes were labeled Special Access Programs. It sounds pretty fancy. And it sounds pretty much another way of saying “classified”.

So in mid-April of this year, 2022, NARA decides to get the Department of Justice involved. They let the Department of Justice know that some of the documents that they’ve recovered from Mar-A-Lago were classified. They let the Department of Justice know that they already put both Trump and senior administration personnel on notice to not destroy any documents, to not delete any post on social media, and to not delete any drafts (they call it a draft tweet).They also got ripped documents.

Between mid-April and May, the FBI starts getting involved, talking to different aides to figure out what’s going on. By the end of April, early May, NARA has made it public that they’ve asked the Department of Justice to get involved in regarding this paperwork, and the Department of Justice started their procedure of subpoenaing NARA to get the records.

And that’s the indication that a grand jury investigation is starting.

Now, specific date, June 3 2022. Department of Justice counterintelligence agents go to Mar-A-Lago and they serve a subpoena for “sensitive national security read documents”. They talk with Donald Trump for a little bit. They talk with Trump’s people, and Donald Trump just goes on his merry way. The counterintelligence agency personnel continues their conversation with Mar-A-Lago. They get paperwork and they go.

January 8, Mar-A-Lago receives a request from the Department of Justice, to better secure the room where these boxes are. And they subpoena video because they want to know who has access to this room. Mar-A-Lago puts another lock on the door. What type of lock? I don’t know.

And I don’t know the content of the video, and whether or not the video was provided to the Department of Justice.

So, August 8, the focus of the search is basically Trump’s personal quarters and where he would do work. It doesn’t have anything to do with the Resort Spa, or any of the community/public amenities. And again, it’s the first time in American history that a former president’s home was searched.

August 11. That’s when Merrick Garland issued a public statement indicating that the FBI and law enforcement were doing their duty. He personally signed off on the warrant. And it’s very difficult to get something of this nature, particularly of a powerful person, such as a former president, for a judge to say yes. There is a lot of political risk, and there is a lot of personal risk in regards to one’s own career. So these decisions were not made lightly by anyone involved, regardless of the outcome.

So then Bruce Reinhart approves the warrant being unsealed. And then, at the Justice Department’s request, Trump’s lawyers agree. Again, the subject of the warrant, in this case, Donald Trump in his home, they have the right to disclose that information. And by a brief review of the documents, it looks like possible violations of the Espionage Act and there’s an ongoing criminal investigation.

So this is all very, very, very new and, from a legal perspective, very exciting. Because it is an unfortunate case of first impression, if you will, and whether or not these things are going to meld and blend with what Congress is doing or with any other investigation, such as New York and what’s going on with Trump, the Trump Organization – only time will tell.

Attorney Mike Kessler
Written by: Attorney Mike Kessler

Attorney Kessler has been practicing criminal law in Florida for 30 years. He is recognized as is a leading authority on drunk-driving defense as well as a founding member of the Saint Lucie County Association of Criminal Defense Lawyers and co-author of The DUI Book: Florida Edition, the definitive resource on DUI in Florida.

To speak with Mike, call 772-466-4900 or click here for a free consultation.

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