Left: Former President Donald Trump’s butler, Walt Nauta, at the civil fraud case against Donald Trump at the NYS Supreme Courthouse on October 24, 2023 in New York City. Siegfried Nacion/STAR MAX/IPx 2023 10/24/23. Right: Special counsel Jack Smith speaks to the media about an indictment of former President Donald Trump, Aug. 1, 2023, at an office of the Department of Justice in Washington. (AP Photo/J. Scott Applewhite, File)
“Nothing like that happened here.”
That declaration from special counsel Jack Smith colored the entirety of his response to Donald Trump valet Walt Nauta’s claim that searches done at Mar-a-Lago to unearth evidence in the espionage case against the former president and his co-defendants were unconstitutional.
As Law&Crime recently reported, Nauta — one of Trump’s two co-defendants; the other is Mar-a-Lago property maintenance head Carlos de Oliveira— argues the warranted searches conducted at the Florida property were improper and that certain boxes investigators came away with in their search should be suppressed under unlawful search and seizure protections of the Fourth Amendment.
Nauta claims the FBI affidavits lacked sufficient probable cause and he also questioned whether the judge who signed the warrants to start made the correct “independent determination” about the level of sensitivity or threat to national security the contents of the boxes at Trump’s club and private residence may contain.
In an opposition brief, Smith worked to dismantle Nauta’s allegations, telling presiding U.S. District Judge Aileen Cannon the depth of “particularity” involved in the FBI’s warrant process confirmed there were “no materially misleading omissions” in any FBI affidavits used to premise the warrant.
Warrants were issued for two of Nauta’s phones, his car (but only for the purpose of seizing the phones), an email account and his iCloud account in October and November 2022 by Magistrate Judge Bruce Reinhart. Another warrant was issued in February 2023 by Chief Judge Beryl Howell in Washington, D.C. for his Google account and for cell data from his Verizon phone.
Smith said filter protocols were in place and correctly applied to ensure that whatever information agents might have come across would be properly protected or segregated as privileged materials. At no time do filter teams advise prosecutors of the substance of the potentially protected materials, the special counsel said, nor do filter teams operate without agreement from defense counsel about where crime-fraud exceptions might apply, barring a court order deeming otherwise in a special circumstance.
When the cell location warrant was requested and then issued in Washington, D.C. last February, “there was nothing improper, as Nauta insinuates,” Smith wrote. The venue was proper and despite Nauta’s contentions, no filter protocols were necessary in that warrant because it specifically sought location information only — not contents of Nauta’s communications on the device.
The probable cause is clear, according to the special counsel. Nauta, as an employee of Trump’s who once held high-level security clearance and received training in handling classified documents, was “part of the team” that packed items into boxes from the White House to move to Mar-a-Lago in January 2021. That year, as the National Archives spoke to Trump’s team about the materials Trump took with him, Nauta brought two to four boxes at a time to Florida for Trump to review and after about 15 to 17 boxes, Trump told Nauta to stop and by January 17, 2022, 15 boxes were handed off to the Archives.
That’s where investigators found the highly classified documents intermixed with other records and what followed, Smith said, was Nauta at least twice providing false or misleading statements to investigators about when he moved boxes and where.
The warrants submitted by the FBI detailed this at length and included other information premising probable cause including that Nauta had encrypted messaging applications on his phone which prosecutors understood to be regular channels of communication with Trump and their mutual associates. The same messages were run through his Gmail account and occurred on both his private and professional devices and emails.
For instance, Smith said, on June 24, 2022, the same day that the Justice Department sent lawyers for the Trump Organization a subpoena for closed circuit security footage and three days after Nauta testified to a grand jury, “Nauta had begun coordinating a secret trip to Mar-a-Lago for the next day (June 25).”
Nauta lied about why he was going, telling outsiders he had a family emergency. In truth, Smith said, Nauta connected with de Oliveira and the men ended up in the basement of Mar-Lago on June 25, walking through tunnels before entering a storage area and being seen on CCTV gesturing in the direction of the cameras watching overhead.
The FBI affidavits explained this, Smith said, and though Nauta claims investigators obtained warrants “recklessly,” the special counsel insists the writing was on the wall for the judges who approved the warrants.
First, there was a large volume of documents, many described with classified markings, Smith said. Next, Nauta had been informed of this investigation in a May 2022 FBI interview and then, within six days of that interview, he “removed approximately 60 boxes” and proceeded to conduct more removals days later.
“Nauta’s contention that the warrant needed to include evidence that Nauta himself violated Section 793, or any other offense listed in the warrant for that matter, is contrary to well-established law,” Smith wrote before citing a ruling from the 11th Circuit. “‘The critical element in a reasonable search is not that the owner of the property is suspected of crime but that there is reasonable cause to believe that the specific ‘things’ to be searched for and seized are located on the property to which entry is sought.’”
Nauta was “misleading” in his answers to investigators about the moving of the boxes then and today, as he challenges the warrant, he cites no authority to corroborate his claims of unconstitutionality.
“Insufficient particularity in a warrant can lead to suppression only when the warrant is ‘so facially deficient,’ i.e., so lacking in particularity, that ‘the executing officers cannot reasonably presume it to be valid,’” [citation omitted]. Smith wrote. “Nothing like that happened here. Whatever Nauta’s criticisms of the warrant’s particularity or overbreadth, it was ‘objectively reasonable’ for agents to rely on the warrant.”