On Monday, F.B.I. agents searched the Florida home of former President Donald Trump, possibly commencing a new phase in the legal scrutiny that he has faced since leaving office. According to the Times, the search concerned classified material that Trump removed from the White House and took to Mar-a-Lago. What remains unclear is whether they found any information related to attempts by Trump and his allies to overturn the results of the 2020 Presidential election.
To understand what the search might signal, I spoke by phone with Andrew Weissmann, a former federal prosecutor and F.B.I. general counsel who worked on the Mueller investigation. He is currently in private practice and a professor at N.Y.U. School of Law. During our conversation, which has been edited for length and clarity, we discussed why Merrick Garland was almost certainly involved in the decision to order the search, what criteria the government uses for asking a judge for a warrant, and the quickening pace of the Department of Justice’s January 6th investigation.
What’s your biggest takeaway from Monday’s events?
The usual way to get documents from somebody you trust is to give them a subpoena. Almost any time that the government is trying to get documents from a corporation, they do it by issuing a subpoena, or even by informal request. With any normal civilian, you will issue a subpoena and the person will collect the documents and produce them.
You use a search warrant, and not a subpoena, when you don’t believe that the person is actually going to comply. For me, the biggest takeaway is that the Attorney General of the United States had to make the determination that it was appropriate in this situation to proceed by search warrant because they could not be confident that the former President of the United States would comply with a grand-jury subpoena. [Continue reading…]