The FBI raid of former President Trump’s Mar-a-Lago home has remained in the news cycle in the six weeks since the raid for good reason. While having a private residence of a former president raided is a truly exceptional occurrence and one that will be noted by history, there are lessons here for all of us to consider.
On the one hand, there are many voices in traditional and social media arguing that former president Trump committed serious crimes that led to this raid. Others argue that this is simply a political vendetta. Charlie Cartwright, a Florida lawyer, argues that both options are equally bad:
“No one knows which is true. And making either statement is reckless. The search could have been made for evidence of a crime committed by someone other than Donald Trump. If that is the case, then both sides have been reckless.”
As for us regular people, we shouldn’t be worried about random FBI raids. Any law enforcement agency needs a significant amount of evidence in a criminal matter if they are even considering asking a judge for a warrant that would permit them to begin any operation similar to what the FBI did at Mar-a-Lago.
It’s not just having a significant amount of evidence, a judge would look closely at the quality of evidence presented. Even great evidence, if it wasn’t a sufficient amount of evidence, might not clear the bar for a judge to issue a warrant to allow a raid. A judge’s role here is to be as measured as possible in evaluating the evidence in a realistic light, not the light most favorable to the agency seeking the warrant.
The threshold question here is whether this raid would yield evidence to prove the crime or crimes in issue. Is there significant probable cause that the raid will achieve its goal of finding evidence of the crime or crimes the agency is seeking to prove?
Parenthetically, the rest of us wouldn’t be in a situation where we were accused of hiding or destroying confidential documents that could be critical to national security and have potential historical value. Yet what is important for everyone to remember is that this is all part of the phase of collecting evidence. In former President Trump’s case, whether or not the FBI acted appropriately, the goal was to collect evidence that could help decide whether there should be an indictment.
“Obviously, this is the first time a former President’s residence has been searched. However, the laws of this country apply equally to everyone. It is not unprecedented that someone running for president would be the target of an FBI search warrant. Hillary Clinton’s emails were the subject of a warrant during the 2016 campaign.”
All of this is to say that the standard here must have been remarkably high for a judge to authorize this raid on former president Trump’s home, as Cartwright reminds us:
“Remember that the 4th Amendment states: ‘The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrant shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.’ Part of that process is the FBI here successfully convincing a judge that highly valuable information would be found during the raid.”
Tim George, a Pennsylvania lawyer, adds an excellent point about the process through which the Mar-a-Lago warrant was obtained:
"The question being asked in this case is the same question asked in every case involving a search warrant: Why? The answer is found in the affidavit that the judge reviewed before granting the warrant. Get the affidavit, and you'll learn why the search happened - and likely a host of other important details, too."
From where I sit, it looks highly unlikely that the FBI would be taking an unfounded political chance in their raid on former President Trump’s home. This would be remarkably ill-advised given that it seems that Congress will be GOP-controlled following November’s midterm elections. Yet, as the DOJ has escalated the legal fight against Trump with their filing on Friday in the 11th Circuit Court of Appeals, both the legal and political we are getting closure to an ultimate resolution of what happened in the August raid and why it did.
When more details are revealed about the reasons behind what happened in the raid, it’s going to make interesting reading and perhaps even more compelling conjecture about the political future of former President Trump.
About Aron Solomon
A Pulitzer Prize-nominated writer, Aron Solomon, JD, is the Chief Legal Analyst for Esquire Digital and the Editor of Today’s Esquire. He has taught entrepreneurship at McGill University and the University of Pennsylvania, and was elected to Fastcase 50, recognizing the top 50 legal innovators in the world. Aron has been featured in Forbes, CBS News, CNBC, USA Today, ESPN, TechCrunch, The Hill, BuzzFeed, Fortune, Venture Beat, The Independent, Fortune China, Yahoo!, ABA Journal, Law.com, The Boston Globe, NewsBreak, and many other leading publications.