Rubio suggests Mar-a-Lago search was a ‘ruse’ to find Jan. 6 evidence

U.S. Sen. Marco Rubio has joined the chorus of conservatives condemning the FBI raid of Donald Trump’s residence in Palm Beach, saying federal agents used the “pretext” of a search warrant to collect classified information as a “ruse” to gather evidence about the former president’s alleged role in the Jan. 6, 2021, assault on the U.S. Capitol.

”I actually don’t think they went in looking for documents,” Rubio, a Miami Republican, said Tuesday on Fox News. “I think they went in there looking to see whatever they could find. ... Their argument is, ‘all right, we’re here looking for documents, we didn’t find those, but look what we did find.’”

Rubio sent a letter to FBI Director Christopher Wray on Wednesday “demanding” a briefing for congressional members on intelligence committees and suggesting the bureau had applied a double standard to Trump, if indeed its search of Mar-a-Lago on Monday was intended to recover classified material. He did not accuse the FBI of orchestrating a “ruse” in his letter to Wray as he did in his appearance on Fox News.

Rubio’s criticism of the FBI perpetuates Republican claims that it is an unscrupulous agency, dating back to its investigations of Trump and Hillary Clinton during the 2016 presidential election.

But Rubio’s accusation about the FBI’s search warrant was misguided, according to law enforcement sources familiar with the search of Trump’s residence at Mar-a-Lago, where the former president had shipped boxes of presidential materials after he lost the 2020 election, including classified records from the White House.

On Monday, FBI agents hauled way about 12 boxes from Trump’s opulent home and private club in a search designed to seize only presidential records with classified documents, according to law enforcement sources. The records had nothing to do with the Jan. 6, 2021, insurrection that has become the subject of a separate Justice Department investigation and a congressional inquiry.

One law enforcement source told the Miami Herald that the FBI’s search resulted in the collection of voluminous classified materials found at Trump’s residence. “These are documents that could cause great harm to the United States,” said the source, explaining why the Justice Department is interested in evaluating them.

But on Tuesday, during an appearance on Fox News host Sean Hannity’s show, Rubio lashed out at the FBI and the Biden administration, declaring they were dishonest about the purpose of the search warrant served on Trump’s residence because their only goal was to charge the former president with a crime. Without citing any evidence, Rubio said FBI agents used the pretext of a presidential records probe to dig up documents on the Jan. 6, 2021, assault.

“Look, they can’t say, ‘oh, this was because of Jan. 6,’ ” Rubio said, calling the federal magistrate judge who signed the search warrant an “Obama donor.”

Read Next: Florida GOP leaders call Mar-a-Lago search a ‘Third-World’ act. Miami exiles debate it

“They thought this was a cute way to get around it,” said Rubio, who is facing reelection. “They can say, ‘Oh no, this has nothing to do with the Capitol stuff and the Jan. 6 committee. This is because of the documents that he retained and still has and that’s why we went in there.’ ”

The warrant has to be specific

Several former FBI agents and federal prosecutors, along with legal observers, said that the assertion of a “ruse” by Rubio, a lawyer, was off-base.

First, the warrant would have been reviewed at the highest levels of government, including Attorney General Merrick Garland and the FBI director.

Second, FBI agents could only obtain the warrant from a magistrate judge by showing there was probable cause of a crime because Trump was allegedly withholding presidential records, including classified documents from the National Archives and Records Administration. Under the law, it has the authority to hold almost all White House records after a president leaves office.

Third, the warrant had to show exactly what records were being targeted and where they were located in Mar-a-Lago — including current information from a confidential source with knowledge of such details, sources said.

READ NEXT: What kind of criminal case is the Justice Department building against Donald Trump?

“The warrant has to be very specific about what the items are and their location,” said former FBI agent Chris Mazzella, a lawyer who worked for the bureau for more than 30 years, including major investigations of public corruption. “That information has to be provided by a reliable source. You also have to set forth why the source is reliable” in an affidavit supporting the warrant.

“The warrant would be very narrowly tailored for a president or anyone else,” said retired FBI agent Jerry Hester, who worked in the bureau’s South Florida office for more than 20 years, focusing on organized crime and public corruption. “You want to make sure all your i’s are dotted and t’s are crossed. The search must be aboveboard. Because if it’s not, you risk some of your evidence being suppressed or spoiling the case.”

Both said that if FBI agents found possible evidence of other crimes during a search, they would likely get the advice of federal prosecutors in the U.S. Attorney’s Office in South Florida to see if the original warrant would need to be amended and approved to gather it. Federal prosecutors from that office were on the premises Monday when FBI agents carried out the search, which was authorized by the Justice Department in Washington.

Mark Schnapp, a longtime defense attorney who worked as former federal prosecutor in Miami, said federal agents are “supposed to stay within the corners of the warrant. They are not supposed to seize evidence that exceeds the scope of the warrant.”

He also said that “agents could seize other evidence in plain view but a safer course might be to get a new warrant for it.”

Schnapp added that Rubio’s allegation of an FBI “ruse” in the search of Trump’s residence “was completely without merit,” noting that the search warrant was signed by an “independent” magistrate judge who found “probable cause” of a crime.

“If this was a ‘ruse,’ they would jeopardize not only the search but potentially this and other investigations,” he said.

Schnapp’s view was shared by other legal experts.

“The warrant authorizes the FBI to search only for evidence related to that investigation,” said Jonathan Shaub, a former attorney adviser in the Office of Legal Counsel at the Justice Department who is now at the University of Kentucky’s Rosenberg College of Law.

But, generally speaking, it is always possible that investigators may come across evidence of other crimes in the lawful execution of a search warrant, under a legal principle called the “plain view” doctrine that has repeatedly been upheld by the Supreme Court.

“As long as the terms of the warrant are adhered to — if it’s a search warrant for documents, you look in any place that a document might reasonably be,” said Norm Eisen, ethics czar under former President Barack Obama and co-counsel for the House Judiciary Committee during Trump’s first impeachment in 2020. “Anything that you find, any ... fruits of criminal activity that you discover, are fair game to prosecutors.”

“Any plain view evidence that is suspected of being part of an actual crime is justified, not things like sealed folders where they’d have to dig in deep to find a document with certain markings,” said Valerie Shen, chief national security counsel to the House Oversight and Reform Committee for the Democrats during the panel’s investigation of the FBI’s probe into former Secretary of State Hillary Clinton.