Legal Sidebari

The Mar-a-Lago Search Warrant: A Legal
Introduction
Updated December 27, 2022
In August 2022, the Federal Bureau of Investigation (FBI) executed a search warrant at former President
Donald Trump’s Mar-a-Lago property in Palm Beach, Florida. A magistrate judge of the U.S. District
Court for the Southern District of Florida later unsealed the warrant, an inventory of property seized, and
a redacted version of the warrant’s supporting affidavit. The warrant authorized government officials to
seize all “documents and records constituting evidence, contraband, fruits of crime, or other items
illegally possessed in violation” of three federal statutes—18 U.S.C. §§ 793, 2071, and 1519.
This Sidebar describes the process for and implications of obtaining a search warrant. It then examines
the criminal offenses identified in the Mar-a-Lago warrant. Next, this Sidebar analyzes presidential
authority to declassify documents and the role of declassification for the crimes at issue. Finally, this
Sidebar discusses three developments related to the warrant—the former president’s request for a special
master, an ongoing grand jury investigation in the United States District Court for the District of
Columbia (D.C. District Court), and the appointment of a special counsel to oversee the government’s
investigation.
Obtaining Search Warrants
The Fourth Amendment protects against “unreasonable searches and seizures.” When law enforcement
conducts a search, the Supreme Court has said that the preferred process under the Fourth Amendment is
to do so pursuant to a search warrant, although warrantless searches are reasonable in some
circumstances. Rule 41 of the Federal Rules of Criminal Procedure and the Fourth Amendment itself
establish a number of requirements for obtaining a search warrant.
Pursuant to the Fourth Amendment, a warrant must be based on probable cause, a standard the Supreme
Court has described as “incapable of precise definition or quantification into percentages.” Exact
formulations vary, but the Supreme Court has characterized the probable-cause standard as “the kind of
‘fair probability’ on which ‘reasonable and prudent’” people act. Probable cause is a higher standard than
“reasonable suspicion” but does not require proof that something is “more likely true than false.” To
satisfy the probable-cause standard to obtain a search warrant, law enforcement must generally show a
likelihood that (1) the materials sought are “seizable by virtue of being connected with criminal activity”
and (2) the materials “will be found in the place to be searched.”
Congressional Research Service
https://crsreports.congress.gov
LSB10810
CRS Legal Sidebar
Prepared for Members and
Committees of Congress

---

Congressional Research Service
2
Under Rule 41 of the Federal Rules of Criminal Procedure, law enforcement may make the probable
cause showing through a written affidavit or, if “reasonable under the circumstances,” by sworn
testimony—both of which embody the Fourth Amendment requirement that a warrant must be supported
by “oath or affirmation.” Once law enforcement provides the affidavit or testimony to a judge in the
correct venue—for example, a federal magistrate judge in the district where the property to be searched is
located—that judge “must issue the warrant if there is probable cause to search for and seize” the
property.
The Fourth Amendment dictates that the resulting warrant must “particularly describ[e] the place to be
searched, and the persons or things to be seized.” Although a purpose of this requirement is to prohibit
“general searches” permitting seizure of “one thing under a warrant describing another,” in practice
warrants will sometimes use broad terms. For example, in Andresen v. Maryland, the Supreme Court
rejected a particularity challenge to a warrant to search for and seize “other fruits, instrumentalities and
evidence of crime at this [time] unknown.” The Court concluded that the phrase should be read in
conjunction with the particular crime specified in the warrant—specifically in Andresen, a violation of a
state false pretenses statute connected to a real estate transaction. In other words, the warrant’s
particularity may be limited not only by the description of the materials to be seized but also by the
specified crime to which they must pertain.
Search warrants are common tools for investigating crime. Their issuance indicates there was probable
cause that items to be searched for and seized in a particular location are contraband or evidence of a
crime. However, a search warrant does not necessarily mean that a prosecution will follow. At the federal
level, the decision of whether or not to initiate prosecution is subject to the executive branch’s discretion
as informed by a number of Department of Justice (DOJ) policies.
Statutes Identified in the Mar-a-Lago Warrant
The Mar-a-Lago warrant separately describes the premises to be searched (Attachment A) and the
property to be seized (Attachment B). The warrant authorized the search of all rooms in the Mar-a-Lago
resort that were used or available to former President Trump and his staff and in which boxes or
documents could be stored, but it excluded guest suites and private member areas. The warrant authorized
the government to seize all physical documents and records connected with three offenses defined in Title
18 of the U.S. Code.
18 U.S.C. § 793
The first statute identified in the Mar-a-Lago warrant is 18 U.S.C. § 793. This provision is part of the
Espionage Act of 1917—a statute originally enacted two months after the United States entered World
War I. Congress has amended elements of Section 793 several times, but the bulk of the text has remained
the same since Section 793’s enactment. A different section of the Espionage Act focuses on “classic
spying” cases when an individual sends information to a foreign government or military, but Section 793
captures a broader range of activity than traditional espionage. Because Section 793 predates the modern
system of classifying sensitive material, it does not use the phrase classified information. Instead, the
statute protects information and material “relating to” or “connected with” national defense—often called
national defense information.
The Espionage Act does not define national defense information, but courts have elaborated on its
meaning. In a 1941 decision, Gorin v. United States, the Supreme Court agreed with the interpretation that
national defense is a “generic concept of broad connotations, relating to the military and naval
establishments and the related activities of national preparedness.” Lower courts have since stated that, to
qualify as national defense information, the information must be “closely held” and its disclosure
“potentially damaging” to the United States or useful to its adversaries. Those accused of violating the

---

Congressional Research Service
3
Espionage Act have argued that the statute is unconstitutionally vague because it does not provide
sufficiently clear standards for people of common intelligence to determine whether information in their
possession qualifies as national defense information. In Gorin, however, the Supreme Court concluded
that the statute’s state-of-mind (or mens rea) requirements had a delimiting effect that gave what was
otherwise potentially problematic language enough definitiveness to pass constitutional muster.
Section 793 is divided into several subsections with technical and legal distinctions. The affidavit
supporting the warrant focuses on subsection (e), which applies when an individual is in unauthorized
possession of certain national defense information. Section 793(e) creates penalties for willfully
disclosing or attempting to disclose that information. It also prohibits willfully retaining national defense
information and failing to deliver it to the proper official. (For further analysis of the Espionage Act and
its mens rea requirements, see CRS Report R41404, Criminal Prohibitions on Leaks and Other
Disclosures of Classified Defense Information, by Stephen P. Mulligan and Jennifer K. Elsea.)
18 U.S.C. § 2071
Another statute cited in the Mar-a-Lago search warrant and affidavit is 18 U.S.C. § 2071, which generally
prohibits, among other things, willfully and unlawfully concealing, removing, mutilating, obliterating, or
destroying a “record,” “paper,” or “document” that is “filed or deposited with any clerk or officer of any
court of the United States, or in any public office, or with any judicial or public officer of the United
States.” A violation of the statute is punishable by up to three years’ imprisonment. Separately, if a person
“having the custody of any such record,” paper, or document takes one of the aforementioned actions with
the requisite willful and unlawful intent, he may be imprisoned for up to three years and “shall forfeit his
office and be disqualified from holding any office under the United States.”
Whether a person could be charged with violating the statute could depend on, among other things,
whether any of the records or documents recovered would be considered “filed or deposited ... in any
public office, or with any ... public officer of the United States.” There is little caselaw on what it means
for a record or document to be “filed or deposited” with a relevant office or officer, though a 1923 Third
Circuit opinion interpreting a predecessor statute suggested that a document “deposited” may include one
“intrusted to [the] care” of another. As to the term public office, in the prosecution of a co-conspirator
involved in the Iran-Contra affair for conspiring to alter certain memoranda of the National Security
Council (NSC), the federal district court for the District of Columbia suggested that the term broadly
covers “a governmental office, as distinguished from a private one.” In the case involving the Iran-Contra
co-conspirator who altered the NSC documents, Oliver North, the court in a footnote rejected North’s
argument that “‘Presidential’ material is exempt” from the statute, citing the Presidential Records Act.
A second consideration under Section 2071 is when a covered record or document may be considered to
have been concealed, removed, mutilated, obliterated, or destroyed within the meaning of the statute. On
this question, it seems clear that the statute applies to the destruction or removal from its proper place, for
example, of an original version of an official record or document. For instance, one of the Iran-Contra
cases noted that the NSC documents at issue were “originals” that should have been included either in
NSC institutional records or presidential records. A more recent circuit court case affirmed the conviction
of a man convicted of destroying Immigration and Naturalization Service documents that were “official
public records required to be placed in ... the permanent record files of persons seeking to gain
citizenships in the United States[.]” Whether the statute also applies to mere copies of records or
documents is less clear. In a subsequently vacated 2004 opinion, the Tenth Circuit held that “a copy of an
officially filed document falls within the statutory language” of Section 2071, and thus the statute applied
to the removal of a copy of a sealed affidavit from a court clerk’s office. In a later case, however, the
federal district court for the District of Columbia disagreed with the Tenth Circuit, ruling that the statute
as a whole extends only to circumstances where a person’s actions with respect to a covered record or
document “obliterated information from the public record.”

---

Congressional Research Service
4
To be convicted of a violation of Section 2071, one must also act with the requisite state of mind—
“willfully and unlawfully.” This requirement appears stringent. According to the Ninth Circuit, the
standard requires one to act “intentionally, with knowledge that he was breaching the statute.” Under this
standard, belief in the lawfulness of one’s actions could negate the state-of-mind requirement.
Finally, for purposes of the provision mandating disqualification from public office, a person must have
had “custody” of covered records or documents. In the Iran-Contra cases, the D.C. district court took a
broad view of this term, rejecting the argument that the statute applies “only [to] those who are the
custodians of records in the technical sense” and writing that the statute’s “obvious purpose ... is to
prohibit the impairment of sensitive government documents by those officials who have access to and
control over them.”
The public office disqualification provision in Section 2071 could raise difficult constitutional questions if
applied to the presidency. Article II, Section 1, of the Constitution establishes the qualifications for the
presidency: a person must be (1) a natural-born citizen, (2) at least 35 years of age, and (3) a resident of
the United States for at least 14 years. Article I contains similar provisions setting out the qualifications
for Senators and Members of the House of Representatives. In Powell v. McCormack and U.S. Term
Limits v. Thornton, the Supreme Court recognized that the constitutional qualifications for service in
Congress are “fixed and exclusive.” The Court has not directly addressed whether presidential
qualifications are exclusive, but in reliance on Powell and Thornton, some lower courts have deemed that
they are. As such, if Section 2071’s statutory disqualification provision were viewed as establishing a
substantive qualification for the presidency beyond what is required in the Constitution, it might be
argued (as at least one scholar has done) that the provision cannot bar a person from serving as President.
(Whether and when a person might be barred from public office under the Fourteenth Amendment may
raise distinct issues and is discussed in this Legal Sidebar.)
18 U.S.C. § 1519
The Mar-a-Lago warrant and affidavit also lists 18 U.S.C. § 1519—a statute criminalizing certain acts of
destruction of evidence in obstruction of certain federal investigations or proceedings. Congress intended
Section 1519 to have a broad scope, and prosecutors have used it to charge an array of behaviors aimed at
undermining investigations, including creating false reports, hiding objects, and shredding documents. It
has been used to prosecute private and governmental actors alike. Enacted as part of the Sarbanes-Oxley
Act of 2002, violations of Section 1519 may incur fines, imprisonment of up to 20 years, or both.
To establish a Section 1519 violation, the government must satisfy four elements. First, it must prove that
the defendant knowingly altered, destroyed, mutilated, concealed, covered up, falsified, or made false
entries. This list of seven prohibited behaviors is intended to reach “any acts to destroy or fabricate
physical evidence.” The knowledge requirement demands only that “the accused knowingly committed
one of several acts” (e.g., concealment of documents), and not that he did so with knowledge that any
“possible investigation [would be] federal in nature.” Second, the government must show that the
prohibited behavior was done to “any record, document, or tangible object,” a phrase that can encompass
objects such as computer hard drives and a wide array of documents such as contracts and government
reports. Third, Section 1519 applies only where the defendant acted with the “intent to impede, obstruct,
or influence.” According to one federal appellate court, the third element limits the statute from applying
to “innocent conduct such as routine destruction of documents that a person consciously and in good faith
determines are irrelevant to a foreseeable federal matter.” Fourth, the government must demonstrate that
the defendant sought to obstruct certain bankruptcy matters or “the investigation or proper administration
of any matter within the jurisdiction of any department or agency of the United States.” This phrase
encompasses executive branch investigations, and at least one federal appellate court has concluded that it
also includes federal grand jury proceedings to the extent they relate to an investigation by an executive
branch agency into something within that agency’s purview. There is some uncertainty regarding the

---

Congressional Research Service
5
extent to which Section 1519 includes congressional investigations. Notably, Section 1519 does “not
require that an investigation be pending or that the defendant be aware of one.” This is because the statute
also covers instances where an individual’s behavior is “done in contemplation of an investigation that
might occur.”
Presidential Control over Access to Classified Information and Materials
The Supreme Court has stated that the President has responsibility for protecting national security
information as part of his role as Commander in Chief and head of the executive branch. The Court
indicated that the authority to control access to such information “exists quite apart from any explicit
congressional grant,” although it also suggested that Congress could play some role. Consequently, many
argue that the President has broad authority to disclose or declassify such information, which could make
it available to the public under the Freedom of Information Act (FOIA) by removing its exemption from
disclosure. According to a letter provided as an attachment to the affidavit, former President Trump also
claims that “[a]ny attempt to impose criminal liability on a President or former President that involves his
actions with respect to documents marked classified would implicate grave constitutional separation-of-
powers issues.”
Executive Order 13526 sets the official procedures for the declassification of information. The relevant
federal regulation, binding on all agencies, is 32 C.F.R. Part 2001. Typically, the agency that classified the
information is the declassification authority, but the Director of National Intelligence (DNI) may also
direct the declassification of information (see E.O. 13256 § 3.1). 32 C.F.R. § 2001.25 requires that
declassified documents be marked in a certain way.
Former President Trump reportedly argues that the President, bound by neither the executive order nor the
regulations, has the authority to declassify information without following the regular procedures and that
he had declassified the documents in question under a standing order that automatically declassified all
documents that he took out of the Oval Office. The U.S. Court of Appeals for the Second Circuit appears
to have disagreed with the claim to such authority, stating, in the FOIA context: “[D]eclassification, even
by the President, must follow established procedures.” The court held that a FOIA litigant seeking to
demonstrate that information had been declassified by presidential disclosure must show “first, that [the
President’s] statements are sufficiently specific; and second, that such statements subsequently triggered
actual declassification.” Some argue that declassification would entail communicating that change of
status across federal agencies so that they can alter document markings on all materials that contain the
newly declassified information.
The unauthorized disclosure of classified information does not result in its declassification, although
officially acknowledged classified information may be subject to release under FOIA. Agency
classification authorities, and presumably the President, may reclassify information, although if the
information has already been made available to the public, certain criteria must be met. There do not
appear to be any reports that the documents in question were subject to public release. If the documents
were not declassified or have been reclassified by the Biden Administration, former President Trump
could be permitted access to them if the head or a senior official of the originating agency grants a waiver.
None of the statutes listed in the Mar-a-Lago search warrant requires that the materials at issue be
classified, although the classified status of such documents may be relevant to a court’s determination
under the Espionage Act as to whether the documents contain information that is closely held by the
government and thus meet the definition of national defense information. Courts generally give great
deference to the executive branch in matters related to security classification. (For more information
about national security classification, see CRS Report RS21900, The Protection of Classified
Information: The Legal Framework, by Jennifer K. Elsea.)

---

Congressional Research Service
6
The Special Master, Grand Jury, and Special Counsel
Shortly after the FBI executed the search warrant in August 2022, former President Trump filed a motion
in the U.S. District Court for the Southern District of Florida asking the court to appoint a special master
to oversee the government’s handling of the seized material. A federal district judge granted that request,
but the U.S. Court of Appeals for the Eleventh Circuit overturned the decision and held that the district
court lacked jurisdiction to make the appointment. The Eleventh Circuit concluded that the appointment
would have required the court to create a new exception to its jurisdictional rules that applied only to
former presidents. The court declined to adopt that new exception based on the reasoning that a rule only
for former presidents would defy the principle that the law applies “to all without regard to numbers,
wealth, or rank.” Based on the Eleventh’s Circuit’s opinion, the U.S. District Court for the Southern
District of Florida dismissed the case for lack of jurisdiction.
Separate from the special master proceedings that originated in the Southern District of Florida, there is
an ongoing and related grand jury investigation in the D.C. District Court. Because grand juries, which
are discussed in this CRS Report, generally conduct their work in secret, most information about the D.C.
District Court proceedings is not publicly available—although some documents related to the grand jury
have been unsealed. In particular, DOJ sought and received the D.C. District Court’s permission to reveal,
among other things, a May 2022 grand jury subpoena issued to the Custodian of Records for the Office of
Donald J. Trump. The grand jury subpoena called for production of “all documents or writings in the
custody or control of Donald J. Trump and/or the Office of Donald J. Trump bearing classification
markings[.]”
The former President produced some material in response to the subpoena in June 2022, but DOJ
contends that the response was incomplete and that classified records remained in the former President’s
possession. According to DOJ, it was against this backdrop that the government applied for the warrant in
August 2022 to search Mar-a-Lago. Various media outlets report that the D.C. District Court continues to
preside over the grand jury investigation and the former President’s responses to subpoenas, but those
proceedings remain under seal as of December 2022.
In November 2022, the Attorney General appointed Jack Smith as Special Counsel to oversee the
government’s investigation of the alleged retention of classified information and presidential records. The
Special Counsel is also authorized to continue a separate investigation into “whether any person or entity
violated the law in connection with efforts to interfere with the lawful transfer of power the following the
2020 presidential election.... ” According to the order, “the Special Counsel is authorized to prosecute
federal crimes arising from the investigation of these matters.” (For additional background on the history
of and authorities for special counsel investigations, see CRS Report R44857, Special Counsel
Investigations: History, Authority, Appointment and Removal, by Jared P. Cole.)

Author Information

Stephen P. Mulligan
Jennifer K. Elsea
Legislative Attorney
Legislative Attorney


Peter G. Berris
Michael A. Foster
Legislative Attorney
Section Research Manager

---

Congressional Research Service
7


Disclaimer
This document was prepared by the Congressional Research Service (CRS). CRS serves as nonpartisan shared staff
to congressional committees and Members of Congress. It operates solely at the behest of and under the direction of
Congress. Information in a CRS Report should not be relied upon for purposes other than public understanding of
information that has been provided by CRS to Members of Congress in connection with CRS’s institutional role.
CRS Reports, as a work of the United States Government, are not subject to copyright protection in the United
States. Any CRS Report may be reproduced and distributed in its entirety without permission from CRS. However,
as a CRS Report may include copyrighted images or material from a third party, you may need to obtain the
permission of the copyright holder if you wish to copy or otherwise use copyrighted material.

LSB10810 · VERSION 4 · UPDATED

---