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CBS 2 Legal Analyst Irv Miller on Mar-a-Lago search: an arrest warrant doesn't necessarily follow a search warrant

Search warrant reveals top-secret documents in Mar-a-Lago search
Search warrant reveals top-secret documents in Mar-a-Lago search 02:58

CHICAGO (CBS Chicago/CBS News) -- The federal government is investigating former President Donald Trump for potential violation of three criminal statutes, including the Espionage Act, according to the unsealed search warrant that was executed at Trump's Mar-a-Lago residence Monday and reviewed by CBS News.

Altogether, the FBI seized 11 sets of classified documents.

But CBS 2 Legal Analyst Irv Miller emphasized Friday that a search warrant is very different from an arrest warrant – and searches are not necessarily a predictor of potential future charges.

"Getting a search warrant is the first step toward gathering evidence," Miller said. "There might not be any crime committed and the document just sits in a file and that's the end of the story."

Miller said in his years as a prosecutor, he helped draft hundreds, if not thousands, of search warrants. The majority, he said, did not result in a charge being filed.

Still, Miller said the unsealed search warrant taught us something.

"They were concerned that the document possession by the former president was a violation of federal law," he said.

In addition to a possible violation of the Espionage Act, the unsealed warrant shows the government is investigating former President Trump for the removal or destruction of records and obstruction of an investigation.

The FBI also seized handwritten notes, two photo binders, information about the President of France, and a document about the pardoning of Trump ally Roger Stone.

Miller says the affidavit in this case would provide more detail - why the government thought they should ask the judge for a search warrant and why a federal judge believed there was probable cause that a statute was violated. Whether or not that affidavit becomes public, Miller says, hinges on one big thing.

"It depends if he's charged," he said. "If he's not charged with anything, then as the former president, you will never see that affidavit. If he is charged, you probably won't see it until a couple weeks before the trial starts."

This week, former President Trump called out former President Barack Obama for moving presidential records to Chicago for his presidential library.

The National Archives released a statement Friday, essentially saying former president Obama has no control over his presidential documents - which are moved, stored, and maintained by the archive.

Miller said there is a difference records were handled post-presidencies.

"It's basically the difference between doing something the right way and doing something the wrong way," Miller said. "If you do it the right way, it'll end up in the presidential library for the world to see it. If you do it the wrong way, you could end up with a criminal charge in a federal courtroom."

The ex-president's defense team on Friday did not object to the warrant's release. Mr. Trump himself said late Thursday in a statement that he encouraged the warrant's release. On Friday, he posted on Truth Social ahead of the warrant's release that the documents were "all declassified" and the FBI "didn't need to 'seize anything.'" 

"They could have had it anytime they wanted without playing politics and breaking into Mar-a-Lago. It was in secured storage, with an additional lock put on as per their request," Mr. Trump posted on Truth Social.

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