Former prosecutor explains how the FBI gets a search warrant
PALM BEACH, Fla. (CBS12) — The nation is still buzzing over the search of former President Donald Trump's Mar-a-Lago home in Palm Beach on Monday.
There's a lot we don't know about the search at Mar-a-Lago.
People familiar with the situation say the search is part of an investigation into whether Donald Trump improperly possessed classified documents from Washington at his Florida home.
A former prosecutor says he questions why the FBI decided a search warrant was even necessary in the first place.
Typically those parties can work these matters out without the need of a raid of someone's home."
"Typically those parties can work these matters out without the need of a raid of someone's home," said Patrick McKamey, a criminal defense attorney in West Palm Beach.
McKamey is a former prosecutor who spent 13 years with the Palm Beach County State Attorney's Office.
He says before the FBI showed up at Mar-a-Lago on Monday, they had to present their evidence and the basis for needing to search the property in an affidavit that was reviewed by an Assistant U.S. Attorney and approved by a federal judge.
They have to convince a judge they have probable cause a crime occurred.
"The affidavit is the most critical aspect 'cause it tells you why they're looking for these items, how they're looking for these items and why the person claiming to seek these items has credible evidence," McKamey said.
The National Archives and Records Administration retrieved 15 boxes of White House documents from Mar-a-Lago a few months ago and some of the paperwork contained classified information.
In spite of that, McKamey says getting a search warrant for the home of a former president is unprecedented. It's never happened before.
There's no way this didn't go all the way to the highest ranks of the DOJ (Department of Justice), FBI and the White House."
"You've got to state with specificity the location, the address, the items you specifically are seeking. There's no way this didn't go all the way to the highest ranks of the DOJ (Department of Justice), FBI and the White House," he said.
McKamey says when FBI agents serve a search warrant, the person whose property is being searched is entitled to see the warrant but not the affidavit.
When FBI agents finish the search, they must give the person at the home a list of what they're taking. So whatever the criminal justification may have been—the Trump team knows exactly what was seized from the estate.
"You're entitled to an inventory of your property that they're claiming to have a legal basis to take from you, from your home," he said.
See also: Trump says FBI searched estate in major escalation of probe
There are laws dealing with the handling of classified documents that make it a crime to remove these records and keep them at an undisclosed location.
The Presidential Records Act, which dates back to the time of the Watergate scandal in the late 1970's, requires the preservation of White House documents as property of the U.S. government.
