The process of obtaining a federal search warrant isn’t the same as local law enforcement procedure, where probable cause or circumstantial evidence will convince a local judge to sign off on a warrant.
Federal search warrants are controlled by a checklist of requirements before a judge signs off on a decision to invade someone’s home.
Here’s a look at the process for obtaining a search warrant and laws governing government records:
Investigators first need to obtain a search warrant, which requires convincing a judge that they have probable cause that a crime occurred.
Federal authorities seeking a search warrant present their evidence and the basis for needing to search a property in an affidavit reviewed by a federal magistrate or district court judge.
Magistrate judges are not nominated by the president and confirmed by the Senate. Instead, they are appointed by district court judges to handle matters such as search warrant applications and defendants’ initial court appearances.
The judge can ask for additional information and question the agent seeking the search warrant under oath. The judge will only sign off on the warrant if there is probable cause there’s evidence of a federal crime at the location authorities want to search.
Given the sensitivity of an investigation involving a former president, there must have been a serious amount of deliberation by both the Justice Department and the judge, said Dennis Lormel, who served 28 years in the FBI before retiring in 2003.
The search warrant application process happens in secret to avoid tipping off the person whose property may be searched. Any court records related to the warrant application would be sealed.
Those records typically remain under seal unless and until a criminal case is brought, and even then, authorities may try to keep the affidavit from public view. The person whose property is being searched is entitled to see the warrant, but not the affidavit.
If a property is searched without a valid warrant or probable cause, any evidence seized may be suppressed, which means it can’t be used in court.
In the particular case of Trump’s Mar-a-Lago estate, execution of the warrant also included notifying the Secret Service detail that protects the former president and his homes. The FBI reached out to the Secret Service shortly before serving the warrant.
Secret Service agents contacted the Justice Department and were able to validate the warrant before facilitating access to the estate.
In 2021, about 20,000 delayed-notice warrants were requested; 52 were denied.