Two constitutional lawyers who worked in the Bush and Reagan administrations say that the warrant used to search former President Donald Trump's Mar-a-Lago residence had no legal basis.
A former president's right under the Presidential Records Act supersedes the statutes the Department of Justice and FBI used to carry out the raid earlier this month, wrote David Rivkin Jr. and Lee Casey, who both served under Presidents Ronald Reagan and George H. W. Bush.
Earlier this month, federal Magistrate Judge Bruce Reinhart unsealed the warrant and property receipt, showing that it allowed FBI agents to obtain all "physical documents and records constituting evidence, contraband, fruits of crime, or other items illegally possessed in violation of 18 U.S.C. §§793, 2071, or 1519."
And the materials that could be seized are “any government and/or Presidential Records created between January 20, 2017, and January 20, 2021," which encompasses all of Trump's presidential term.
As a result, the two scholars said that "virtually all the materials at Mar-a-Lago are likely to fall within this category" but "federal law gives Mr. Trump a right of access to them."
"His possession of them is entirely consistent with that right, and therefore lawful, regardless of the statutes the FBI cites in its warrant," Rivkin and Casey wrote.
"Those statutes are general in their text and application. But Mr. Trump’s documents are covered by a specific statute, the Presidential Records Act of 1978," they said, adding that a Supreme Court decision in 1974 affirms their argument. "The former president’s rights under the [Presidential Records Act] trump any application of the laws the FBI warrant cites."
The 1978 law, which was passed two years after former President Richard Nixon resigned, "lays out detailed requirements for how the archivist is to administer the records, handle privilege claims, make the records public, and impose restrictions on access," they added. "Notably, it doesn’t address the process by which a former president’s records are physically to be turned over to the archivist, or set any deadline, leaving this matter to be negotiated between the archivist and the former president."
In their opinion piece, the authors stated that because the FBI and Justice Department were satisfied with an additional lock being installed on a Mar-a-Lago storage room, the federal agencies "could and should have sought a less intrusive" method than a search warrant.
After one FBI agent saw the storage room, they told Trump’s team: “Thank you. You did not need to show us the storage room, but we appreciate it. Now it all makes sense," according to the filing.
“Counsel for President Trump then closed the interaction and advised the Government officials that they should contact him with any further needs on the matter,” it added.