Fact check: False claim that Biden ordered the FBI search of Trump's Mar-a-Lago estate

Sudiksha Kochi, USA TODAY
·6 min read
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The claim: Biden ordered the FBI's search of Trump's Mar-a-Lago estate

After a judge granted former President Donald Trump’s request for an independent review of records seized from his Mar-a-Lago estate, some social media users have claimed a phrase from the court ruling indicates President Joe Biden ordered the search.

A tweet shared to Instagram on Sept. 5 includes a screenshot of part of the court order from U.S. District Judge Aileen Cannon. The order says the government informed Trump it will provide the FBI access to the records, ''as requested by the incumbent President.”

The tweet highlights that phrase, and the Instagram post’s caption reads, “Biden ordered the raid.” The post generated more than 1,000 likes.

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But the claim is baseless.

Biden did not order the FBI search, multiple legal experts told USA TODAY. And the quote referring to "the incumbent president" is not proof that he did: It's from a letter the National Archives and Records Administration sent to Trump's lawyer about 15 boxes of records the agency had retrieved from Mar-a-Lago in mid-January – seven months before the FBI search of the property.

USA TODAY reached out to the social media users who shared the claim for comment.

Court order does not show Biden ordered FBI search

Biden did not order the FBI's August search, and the line in the court order referenced in the Instagram post does not indicate otherwise, Bradley Moss, a national security lawyer, told USA TODAY in an email.

Instead, the letter is referencing access to documents that were retrieved from Mar-a-Lago in January, long before the highly-publicized FBI search.

The phrase "as requested by an incumbent president" is a quote from a May 10 letter the head of the archives agency, Debra Steidel Wall, wrote to Trump’s lawyer, Evan Corcoran.

As USA TODAY previously reported, Trump stored records at Mar-a-Lago in violation of the Presidential Records Act, which requires the archives agency to manage all documents and communications related to a president or vice president's official duties after a president leaves office. As a result, the archives agency retrieved 15 boxes of documents from Trump in January.

The archives agency notified the Justice Department of the boxes, which then asked Biden to permit the agency to grant the FBI access to the documents, according to the letter. The White House Counsel's Office granted the request on April 11.

In the letter, Wall rejected Corcoran's request to delay turning over the 15 boxes of to the FBI for review.

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The full text of the court order – cropped out of the viral post – makes it clear this is the situation being referred to in the reference to Biden.

While the Presidential Records Act only allows for public access to presidential records five years after the end of a president's tenure, Wall wrote that it also allows those records to be available to the incumbent executive branch if needed.

In other words, Biden gets to have access to Trump’s records if Biden attests that they contain information that the executive branch needs to do its work and the information isn’t available elsewhere, according to Kel McClanahan, a national security law expert at George Washington University.

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“(The provision in the Presidential Records Act is the) exception to the rule that nobody gets access to presidential records for five years," McClanahan said. "It’s why the FBI couldn’t get Trump’s records until Biden personally authorized them to.”

The Associated Press and PolitiFact debunked this claim.

An independent judge – not the president – authorized the FBI's search

The Justice Department makes independent decisions on whether to conduct criminal investigations, and the president is not involved in this process, as USA TODAY previously reported.

Final approval to search Mar-a-Lago came from U.S. Magistrate Judge Bruce Reinhart.

The Justice Department submitted a search warrant application to Reinhart as part of a federal investigation into allegations that Trump unlawfully stored classified documents in his Mar-a-Lago estate.

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Any official seeking a search warrant must present an affidavit of probable cause showing that a particular crime or crimes have been committed and that evidence will be located at a particular location, David Weinstein, former assistant U.S. attorney, told USA TODAY.

The judge decides whether they believe there is probable cause after reviewing the affidavit, he said. Reinhart found that probable cause existed to search and seize property at Trump's estate and authorized the search warrant, as noted in the search warrant.

Our rating: False

Based on our research, we rate FALSE the claim that Biden ordered the FBI's search of Trump's Mar-a-Lago estate. Biden did not authorize the FBI's search; that approval came from Reinhart. The phrase in Cannon's court order addresses how Biden granted the Justice Department's request to permit the archives agency to give the FBI 15 boxes of presidential records it had retrieved from Trump's Mar-a-Lago resort in mid-January. The phrase has nothing to do with the FBI's August search.

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This article originally appeared on USA TODAY: Fact check: False claim that Biden ordered FBI's Mar-a-Lago search