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Trump says the FBI searched Mar-a-Lago but the agency isn't commenting

LEILA FADEL, HOST:

We're turning now to Stephen Gillers, professor of law at New York University, where he teaches evidence and legal ethics. Welcome to the program.

STEPHEN GILLERS: Thank you.

FADEL: So, Stephen, obviously there is a lot we don't know about this search - the Justice Department not commenting, the FBI not commenting. But I want to get into the context here. What kind of evidence would the FBI have had to show a judge to get permission for a search like this?

GILLERS: Right. Well, dramatic as it is to search a former president's residence, if you walk back the cat, you have to ask, what would have happened before that? And what the Justice Department would have had to have had is evidence of an ongoing criminal activity. That's what warrants mean to uncover. And so the Justice Department, the national security establishment, had to persuade a federal judge that there is probable cause to believe that a crime is being committed and then that a search and seizure was necessary to avoid destruction of any evidence they were looking for.

FADEL: You know, is the threshold different for former presidents? As you mentioned, it's dramatic, unprecedented in many ways, to get the Justice Department to authorize this kind of search. Does the threshold - is it higher than a normal private citizen for a former president?

GILLERS: It's not higher on paper. It's the same standard. There's no former president exception to the Fourth Amendment. But obviously, all of this takes place in a political context. Garland is a very cautious man, and we can be sure that he wanted to be sure that everything was done beyond criticism.

FADEL: Now, the former president's son Eric Trump told Fox News last night that his father was actively working with authorities to return documents to the National Archives. Now, if that were the case, would the FBI have searched Mar-a-Lago in a move that seems to have surprised both the former president and the current president?

GILLERS: The president has had - the former president has had more than a year and a half to return the entire contents of the 15 boxes that he removed from the White House. The Justice Department is saying, as I read this, we're fed up. We don't trust you to be responsive. You're playing games with us, and we're going in and we're taking what you haven't returned that you promised to return.

FADEL: And this action, what does it tell us about the potential evidence authorities hope to uncover with the search that they just did?

GILLERS: Well, at the very least - because you can't have a warrant without a crime and probable cause of a crime. So at the very least, there are documents that the department has probable cause to believe Trump retains, which he is not legally authorized to retain because they are government property. And removing government property and concealing government property is itself a crime. So that's what we know about the contents of the documents.

FADEL: Could any of what may have been recovered from Mar-a-Lago be used against former President Trump in other criminal investigations, including things like the January 6 investigations?

GILLERS: Yes, absolutely. One of the interesting things about search warrants is that you get the warrant to search for particular items - documents about classified information. But if, in the course of doing that, there is other evidence of other crimes that are in plain view, the agents conducting the search can seize that as well. Or if, on discovery of the classified information, they come across other papers when - back at the White House or back at the Justice Department - that reveal other crime, they can use that as well, too.

FADEL: Now, what sort of legal jeopardy, then, might former President Trump be in after this FBI search?

GILLERS: Well, the narrowest possible risk is that he violated by retaining whatever the government believes he retained - and if he did retain it - classified information that, for a year and a half, he hasn't returned despite being asked to return it. And that would violate a criminal statute that forbids concealment or removal of government property if done willfully and unlawfully.

FADEL: So what does that mean then for him? When you say a criminal - violating a criminal statute, I mean, could this go to a criminal court, jail time?

GILLERS: Right. Well, I suspect there's a grand jury. I think we know there's a grand jury looking into this, as well. Garland will have to decide at some point whether he's got evidence sufficient to seek an indictment under this classified information statute. But more important, he's going to have to decide whether he wants to because we are dealing with a former president. We - this does exist in a highly politicized context. It's not the usual run-of-the-mill FBI search.

FADEL: I'm going to have to leave it there. That's Professor Stephen Gillers of New York University School of Law. Thank you.

GILLERS: Thank you. Transcript provided by NPR, Copyright NPR.