Public Access to the Mar-a-Lago Search Warrant (and Other Federal Search Warrants and Related Documents)

Last week, the FBI searched former President Trump’s home at the Mar-a-Lago Club pursuant to a search warrant. At first none of the relevant documents were publicly available. The application, the warrant itself, and the inventory were all sealed. The Government, with the consent of former President Trump, later moved to unseal the warrant and the inventory. That motion was granted and anyone can access the now-public documents here. The application remains under seal, though members of the news media have moved to unseal it. Because several people asked me about public access to federal search warrants and related documents, and because the process isn’t exactly the same as it is under state law, I thought I’d do a post comparing state and federal law on this issue.

Public access to search warrants and related documents under North Carolina law. The seminal state case in this area is In re Investigation into Death of Cooper, 200 N.C. App. 180 (2009). I wrote about that case here. It began when the Cary Police Department suspected that Brad Cooper had murdered his wife, Nancy Cooper. It sought three search warrants that together allowed a search of Brad Cooper’s home, office, vehicles, computers, and documents. A superior court judge issued the warrants and ordered that the applications, warrants, and returns be sealed for 30 days to protect the ongoing investigation. The news media moved to unseal the documents, and when a superior court judge denied the motion, media representatives appealed to the appellate division.

The court of appeals upheld the sealing of the documents. It noted that returned search warrants and related documents are presumptively open to the public under G.S. 132-1.4(k), which provides that “search warrants that have been returned by law enforcement agencies” are public records. Yet the statute also notes that returned warrants “may be withheld . . . when sealed by court order.” The statute does not say when a sealing order is appropriate. The court of appeals held that search warrants and related documents generally should not be sealed under the state constitution’s open courts provision. However, they may be sealed when doing so is “essential to preserve higher values and [the sealing order] is narrowly tailored to serve that interest.” In the Cooper case, the court found that sealing was justified by the need to protect the ongoing investigation. The court did not separately analyze the application, warrant, and return, instead treating the “search warrant and attendant papers” collectively.

Public access to search warrants and related documents under federal law. No single rule or statute governs public access to search warrants and related documents under federal law. Federal Rule of Criminal Procedure 41 is the federal rule regarding search warrants, but it doesn’t say anything about public access or when a search warrant may be sealed, other than that when the warrant is returned, the magistrate judge should send all “related papers” to the clerk.

Instead, the law comes from a patchwork of local rules and court decisions and varies considerably by jurisdiction. Starting with local rules, some federal district courts have provisions that address the sealing of search warrants. For example, the Western District of North Carolina has Local Criminal Rule 49.1.1(h), which provides that search warrant applications are automatically sealed until the warrant is executed and returned, absent a successful motion by a party or nonparty to unseal. But different districts have different rules. The District of Connecticut has Local Rule 57(b)(7)(D), which requires search warrant applications to be filed unsealed unless otherwise ordered – basically the opposite of the WDNC rule!

Adding to the confusion, some districts don’t have any local rules on this point. That includes the Southern District of Florida, where Mar-a-Lago is located. The local rules for SDFL are here, but they don’t specifically address search warrants. Local Rule 5.4 establishes a general policy that court “filings are matters of public record,” and it sets forth a procedure for overcoming that presumption and filing under seal. But that procedure applies only “to cases in which a person already has been charged by criminal complaint, criminal information, or indictment.” Most search warrants, including the one for Mar-a-Lago, are issued before anyone has been charged, so the procedure set out in the local rule doesn’t seem to apply.

Federal magistrate judges in districts without a relevant local rule still must decide whether to seal search warrant applications, warrants, and inventories. Magistrate judges – and district court judges reviewing magistrate judges’ recommendations – must also address motions to unseal various documents, whether by parties or by nonparties like media interests. Under what body of law should such decisions be made?

The likely answer is federal appellate case law. The federal appellate generally have held that the public has a qualified right to access court documents like search warrants, a right that must give way when countervailing considerations are sufficiently weighty. The cases disagree on whether the public’s right derives from the First Amendment or from common law, and they disagree on whether the qualified right of access extends to search warrants and related documents issued before criminal charges are brought. The magistrate judge in the Mar-a-Lago case has presumably been applying Eleventh Circuit law. This blog is focused on North Carolina, so I will flag the leading case in the Fourth Circuit, Baltimore Sun Co. v. Goetz, 886 F.2d 60 (4th Cir. 1989). After considering the various potential justifications for public access, the Baltimore Sun court ultimately endorsed the same legal test that the North Carolina Court of Appeals did in Cooper, concluding that sealing is proper when “essential to preserve higher values and [the sealing order] is narrowly tailored to serve that interest.” A more recent federal circuit court case is United States v. Sealed Search Warrants, 868 F.3d 385 (5th Cir. 2017). That case notes the persistent circuit split on the proper approach and endorses a case-by-case assessment of the need for sealing, with district courts required to provide detailed factual findings in support of any sealing order.

Comparison and comment. One comment that is not very relevant to the legal issues is that the Mar-a-Lago Club sounds like an unusual place. I didn’t know anything about it before reading the search warrant in this case and then consulting Wikipedia to better understand the premises to be searched. It seems to be an enormous mansion from the 1920s that former President Trump uses in part as a residence, but it is also a club, resort, and event venue. According to the search warrant, it has 58 bedrooms and 33 bathrooms, so there may be sufficient space for multiple uses.

In terms of legal takeaways, it is notable that state law is clearer that federal law on the sealing of search warrants and related documents. We have an obvious statutory starting place in G.S. 142-1.4(k) and a single seminal case that expressly sets out the appropriate legal test. Meanwhile, federal law is quite fragmented, with different local rules and different circuit court holdings leading federal courts to differ significantly on whether search warrants and related documents are presumptively sealed or unsealed, on whether there is a qualified public right of access to such documents before charges are brought, and on the legal basis of the public’s right.

One practice pointer arises from the proceedings concerning the Mar-a-Lago warrant. While most state court sealing orders that I have seen follow Cooper in treating the search warrant and related documents as a unit, the federal court in this matter has treated them separately, granting public access to the warrant and the inventory while denying public access (so far) to the application. Giving separate consideration to the individual documents may make sense in light of the requirement under both state and federal law that any order sealing documents be as limited as possible. It may often be the case that the application, which contains the statement of probable cause and so may reveal nonpublic details about the course of an investigation, is more sensitive and potentially revelatory than the warrant and the inventory.