Brittany Bernstein has an excellent post on former AG Bill Barr’s latest public comments about the Mar-a-Lago investigation. You should read the whole thing, but I want to home in on one part of it because it pertains to something I’ve been asked about a number of times: items of former president Trump’s personal property that were seized by the FBI.
Many of the former president’s non-lawyer supporters understandably assume that (a) if the investigation is about government documents but (b) the FBI seized items of personal property that were not government documents (e.g., passports, medical records, tax information), then (c) the FBI must have gone beyond the lawful scope of the search warrant. That’s possible, but unlikely.
Preliminarily, it is indisputable that the warrant explicitly permitted the agents to seize non-government documents (see, e.g., the warrant’s Attachment B, para. a, permitting seizure of “containers/boxes that are collectively stored or found together with” documents marked classified). But let’s put that aside. Brittany relates Barr’s observation that investigators executing the search warrant were authorized to seize Trump’s personal items because they could constitute evidence of the way the government documents were stored. As he put it, “If you find very sensitive documents in Trump’s desk along with his passports, that ties Trump to those documents.”
This is an iteration of the principle that evidence of a crime is a concept broader than what we might call the corpus of the crime. For example, if the government were investigating the crime of selling cocaine, a search warrant would permit agents to seize not only the cocaine (the corpus of the crime) but also a container of plastic bags found near the cocaine. While the latter may be personal property that is ostensibly legal to possess, it is also evidence that the person intended to package and distribute the cocaine for sale.
Here, the former president is under investigation for, among other things, mishandling classified documents. This could implicate a couple of crimes under the Espionage Act (Section 793). Consequently, the fact that Trump was in possession of documents with classification markings is key evidence. But it’s not the only relevant evidence.
One Espionage Act crime (subsection (e)) requires proof that a person was merely in unauthorized possession of national defense information and willfully failed to deliver it to the government. (The information in question need not be marked classified, though it could be, and possession that started out authorized could become unauthorized if the information was not lawfully retained and safeguarded.) Under this provision, then, merely establishing possession of the documents might be sufficient to prove guilt. Yet, if the documents were also found under other personal items in a manner suggesting concealment, those personal items would be relevant evidence of intent to refrain from delivering the documents to the government.
(Note: I am not addressing here Trump’s potential defenses that his possession and storage were lawful. I am only talking about what the warrant authorized the agents to seize.)
A second crime (subsection (f)) applies, even if a person lawfully possesses national-defense information, if that person “through gross negligence permits [it] to be removed from its proper place of custody,” or delivered to anyone who is not entitled to see it. Clearly, it would be relevant on the issue of gross negligence, as well as the issues of permitting the information to be moved and seen by unauthorized persons, that documents marked classified were found interspersed with the former president’s personal property, or with other, non-classified records to which others at Mar-a-Lago had access (e.g., people who packed, stored, or moved containers).
The documents with classification markings are thus akin to the corpus of the crime — the things that were mishandled. But the relevant evidence includes not only what was mishandled but also any indicia of how the items were mishandled (e.g., the condition in which they were found, strewn among personal property and non-classified files), as well as personal property (such as passports) that shows who was mishandling them.
A court-authorized search warrant permits investigators to seize evidence of the commission of the crimes cited in the warrant (here, mishandling national defense information, unlawful retention of government records, and obstruction). The commission of a crime is proved not only by establishing the suspect’s possession of clearly incriminating items, but also by proving how those items came to be where they were found and how they were handled before being seized. Evidence is not a limitless concept, but it is significantly broader than clearly incriminating items.