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.
“The judge who issued the warrant for Mar-a-Lago has signaled that he is likely to release a redacted version of the affidavit supporting it. But the warrant itself suggests the answer is likely no—the FBI had no legally valid cause for the raid,” they
wrote in the Wall Street Journal on Tuesday.
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.”
