Understanding the legal process behind the raid and where it’s headed
Media coverage of the Mar-a-Lago raid has not been entirely illuminating, melding together as it does without distinction the four components of the search warrant process. The four components are:
The petition is the Department of Justice’s application asking that the court issue a search warrant. In the petition, the DOJ (a) argues to the court that the affidavit shows there is probable cause to believe that evidence of criminal activity can be found on the target premises and (b) specifies the nature of that evidence (documents, firearms, automotive parts, etc. whatever).
The affidavit is a sworn statement attached to the petition attesting to the essential facts that would justify the court’s issuing that warrant.
The warrant is an order from the court commanding the search be done, and the evidence seized.
Image: Mar-a-Lago, YouTube screen grab.
The return is the DOJ post-raid report to the court detailing how its agents (i.e., the FBI) executed the warrant: How they carried it out, what evidence they seized, and where they are safeguarding that evidence. If the DOJ intends to use any of the seized evidence in a trial for the alleged crimes, it must report that in the return.
We should soon be hearing DOJ lawyers shout “smoking pistol!” about certain evidence allegedly seized in the raid, which evidence Trump attorneys may well allege was planted during the raid.
The DOJ will probably indict Trump for something and attempt to have a jury trial in DC shortly before the 2024 election.
During a memorable fifteen-year slice of my sojourn in this vale of tears, I was a trial lawyer and, in that capacity, tried some 35 criminal jury trials—not enough to establish true expertise, but enough to claim some level of familiarity with the process. In that experience, I have learned that what determines the outcome of a criminal jury trial is the jury’s determination of whether a key prosecution witness is credible.
The ordinary criminal trial sees the prosecution and defense each offer key witnesses who give diametrically opposed testimony. The prosecution witness says “X” and the defense witness says “Not-X”—and the only way to break the loggerhead is for the jury to decide whom to believe.
In the Trump case, we can expect that a prosecution witness will testify that documentary evidence “Exhibit A” was seized during the raid. We can also expect that there will be a defense witness who testifies that “Exhibit A” was planted during the raid.
In this scenario, the trial’s venue will be all-important. If Trump were tried in the DC swamp, he would have little chance with the jury. Although he might well prevail on appeal, the DOJ will try to get the trial set close enough to the 2024 election that the Supreme Court will be unable to act until after the election.
The astute reader is already asking what consequences will flow from events set in place when the DOJ brought that initial petition to the court. It’s to be hoped that the Biden administration is carefully thinking through its actions.