Legal experts told The Epoch Times the seizure of former President Donald Trump’s passports during the FBI’s Aug. 8 raid of Mar-a-Lago seems legally questionable.
The law enforcement agency will have to return the travel documents to Trump, one of the lawyers said.
Their comments come after the former Republican president took to social media Aug. 15 to complain that the FBI “stole” his passports during the recent raid.
“Wow! In the raid by the FBI of Mar-a-Lago, they stole my three Passports (one expired), along with everything else,” Trump wrote on his @realDonaldTrump page at Truth Social in a post that was time-stamped 1:22 p.m.
“This is an assault on a political opponent at a level never seen before in our Country. Third World!” he added.
Minutes before that, Trump wrote at the micro-blogging social media site that public revulsion over the raid will hurt Democrats in the off-year congressional elections this November.
“Republicans could win many additional seats, both in the House & Senate, because of the strong backlash over the raid at Mat-a-Lago [sic]. Polls are showing that some lost Republican territory over the last number of weeks has been more than made up with the unannounced Break In by the FBI, which should never have happened!”
It is unclear why the FBI would take Trump’s passports, which may have included the diplomatic passport he was issued after he was inaugurated in January 2017. Without a passport, Trump would be unable to travel outside the United States.
Beginning the morning of Aug. 8, the FBI suddenly and without warning executed a search warrant for the premises at Mar-a-Lago, the private resort in Palm Beach, Florida, where the former president now lives. The U.S. Department of Justice is fighting a request by various media outlets to make the affidavit supporting the request for the search warrant public, claiming doing so could hinder the investigation and expose the FBI’s evidence-gathering methods. Republicans have also called for the affidavit to be made public. President Joe Biden maintains he was not aware of the search until former President Trump announced it.
The search warrant was initially under seal but U.S. Magistrate Judge Bruce E. Reinhart who issued the warrant on Aug. 5 unsealed the warrant in an order dated Aug. 12, along with an FBI receipt for the seized property, making the documents public.
Neither the warrant not the property receipt for the confiscated documents specifically refer to Trump’s passports. Courts will often order a person accused of a crime to surrender his passport so he cannot flee the country, but in this case, Trump has not been charged with a crime, which makes the seizure of his passports unusual.
The warrant itself states that the items to be seized include: “All physical documents and records constituting evidence, contraband, fruits of crime, or other items illegally possessed in violation of 18 U.S.C. §§ 793, 2071, or 1519.”
The reference to the three provisions in U.S. law appear to mean the Biden administration is investigating Trump for the alleged mishandling of sensitive government documents, espionage, and obstruction of justice, all of which the former president denies he did.
Critics say Trump’s political opponents are attempting to blacken his name and disqualify him from seeking reelection in 2024.
Section 2071 of Title 18 of the United States Code states than anyone who, having custody of a specific kind of document, “willfully and unlawfully conceals, removes, mutilates, obliterates, falsifies, or destroys the same, shall be fined under this title or imprisoned not more than three years, or both; and shall forfeit his office and be disqualified from holding any office under the United States.”
Jim Burling, vice president of legal affairs for the Pacific Legal Foundation, a national not-for-profit public interest law firm that challenges government abuses, said that seizing the passports “seems premature in this case.”
“Passports are generally taken if somebody is considered to be a flight risk,” Burling told The Epoch Times in an interview.
But here, “we’re not dealing with an ordinary citizen. We’re dealing with a former president. I mean, do people seriously think he’s going to try to go to Lebanon so he couldn’t be extradited? Just to say that is to recognize the absurdity of it,” Burling said.
As one of the most famous people in the world, Trump is instantly recognizable.
“Is he going to dye his hair a different color? The thing strikes me as absurd: that he’s going to be traveling incognito to a foreign nation where there’s no extradition treaty. That just strikes me as being utterly absurd,” he said.
Besides, Trump is not under indictment, Burling said.
“And I’m sure it hasn’t gone to a grand jury. The point of the raid is to collect evidence, then the evidence goes to a grand jury. The grand jury would issue the indictment and then they would take appropriate steps. But it does seem to me to be questionable why they felt a compelling need to take a president’s passports.”
Burling said he doubted the FBI would take Trump’s passports inadvertently.
“I would think the FBI would be more careful than that, right? They wouldn’t make a mistake like that. I mean, a passport is pretty clearly a passport. And if he had a locked box of classified information, that’s not where you would hide a passport for heaven’s sake. So that doesn’t make any sense. The FBI is too careful. If they took it, they knew what they were doing. I would give them credit for knowing what they’re doing, I would hope.”
Legal commentator Curt Levey, president of the Committee for Justice, said sometimes police seize items that are not specified in search warrants.
Levey said in an interview that he was not aware of any legal prohibition against seizing a search target’s passport.
“As a practical matter, during these searches, they often grab boxes of stuff, and it’s very easy to take stuff that doesn’t quite fit into the particulars of the warrant.”
Lawyers in the case could get into an argument about excluding evidence because a search exceeded the bounds of the warrant, but “a judge would give a lot of leeway for the fact that they’re grabbing things at high speed and they may grab things that are not exactly covered by the warrant.”
No matter what, the government is “going to have to return the passports anyway.”
Levey declined to ascribe malice to the FBI’s actions. “I wouldn’t read any malfeasance into it,” he said.
Based on Trump’s social media account of what happened, which is light on details, it is hard to know what specifically happened to the passports, Levey said.
Did the FBI see the passports and grab them intentionally, he asked. “Were they separate or were they in a box?”
“It sounds like they grabbed whole boxes of things where they might not have carefully searched them.”
“I’m certainly not blaming Trump for being upset. I would be upset, too, if they did a search for one thing, and my passport’s gone,” Levey said.
“So I don’t want to defend what the FBI did so much as just explain that, when you’re grabbing boxes of stuff, it’s unlikely that every item in every box complies with the warrant. And if I remember the warrant language, it was pretty, pretty vague.”
Levey’s nonprofit describes itself as “devoted to restoring the Founders’ vision of a federal judiciary governed by the rule of law and anchored by the Constitution.”
Jack Phillips contributed to this article.