A DIFFERENT POINT OF VIEW: The Great Raid

The poorest man may in his cottage bid defiance to all the force of the Crown. It may be frail, its roof may shake; the wind may blow through it; the storms may enter, the rain may enter, but the King of England cannot enter; all his forces dare not cross the threshold of the ruined tenement…

— William Pitt (the Elder), Speech to the House of Commons (1763).

Pitt was speaking in reference to the government’s raid of the home of Parliament member John Wilkes who had anonymously published pamphlets criticizing Prime Minister Lord North’s illegal policy toward the American colonies. The English Secretary of State issued a “general warrant” for the search of any location, including Wilkes home, to discover the author of the pamphlets.

Wilkes sued the government for violation of his historic right as an Englishman to protection against such illegal searches. Wilkes won the lawsuit when the English court declared that general warrants are “totally subversive of the liberty of the subject… [and] of the most dangerous consequences.”

Similarly in colonial America in 1765, John Entick sued the English government for using a general warrant to search his home for pamphlets critical of the King. Entick also won his lawsuit.

The English judge in Entick’s case wrote, ““if this point should be determined in favor of the [government], the secret cabinets and bureaus of every subject in this kingdom will be thrown open to the search and inspection … whenever the secretary of state shall think fit to charge, or even to suspect, a person to be the author, printer, or publisher of a seditious libel.”

But in 1761, English customs inspectors in colonial Boston obtained general warrants, known as “Writs of Assistance”, empowering them to search anywhere they wanted looking for contraband smuggled into the colonies to avoid taxes. “[T]hese writs were open-ended permission to barge into any home of any colonists and search through their belongings for anything.”

A group of Boston merchants unsuccessfully sued the government over the Writs of Assistance. The merchants’ lawyer, James Otis, described the Writs as “the worst instrument of arbitrary power, the most destructive of English liberty, and the fundamental principles of law, that ever was found in an English law book,’ since they placed ‘the liberty of every man in the hands of every petty officer.‘‘

No less an authority than John Adams said, in 1761, of the Writs, “[T]hen and there was the first scene of the first act of the opposition to the arbitrary claims of Great Britain. Then and there the child of independence was born.”

So the idea of raiding private homes with general warrants was anathema to the founders of our nation. It’s why they included the Fourth Amendment in the Bill of Rights.

In 1886, the United States Supreme Court recognized that historical premise.  Justice Bradley wrote,

“In order to ascertain the nature of the proceedings intended by the Fourth Amendment to the Constitution under the terms ‘unreasonable searches and seizures,’ it is only necessary to recall the contemporary or then recent history of the controversies on the subject, both in this country and in England. The practice had obtained in the colonies of issuing writs of assistance to the revenue officers, empowering them, in this discretion, to search suspected places for smuggled goods” — then quoted Otis’ caustic description of the Writs.

More recently (1971) the Court again explained the historical context of ‘general warrants’, when they wrote “the specific evil is the ‘general warrant’ abhorred by the colonists, and the problem is … a general, exploratory rummaging in a person’s belongings.”

The Fourth Amendment reads,

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

That last clause “particularly describing the place to be searched, and the persons or things to be seized” (known as the “particularity requirement”) is specifically intended to prevent the use of general warrants.

In 1927, the United States Supreme Court reiterated the “particularity requirement”, when Justice Butler wrote,

“General searches have long been deemed to violate fundamental rights. It is plain that the amendment forbids them.”

As the “particularity requirement” pertains to what items can be seized, Butler declared, “As to what is to be taken, nothing is left to the discretion of the officer executing the warrant.”

A lower court, relying on Butler’s declaration of the law, invalidated a warrant used by police to search for documents on the ground that, “ Warrants attempting to authorize a search for, and seizure of, a class or group of objects, such as “documents” are too general and do not describe the thing or things to be seized with the particularity that the constitution requires.”

There are limited exceptions to the particularity requirement. For instance, if the search warrant is for cocaine, and an officer finds heroin, the heroin can be seized because its “ incriminating character” is “immediately apparent”. But you can’t seize an item not described in the warrant just to investigate if it might incriminating.

Which brings us to The Great Raid…

No… not the 2005 movie by that name about the WWII rescue of American soldiers from a Japanese POW camp in the Philippines (a pretty good WWII flick BTW). I’m referring to the FBI raid on the home of Donald and Melania Trump here in Florida. (Do not be duped by the media talking heads telling you this wasn’t a “raid”. Anyone who has ever worked in law enforcement knows that is exactly what it was.)

This column isn’t about the reprehensible political motive for the raid. There has been enough bloviating on that topic. I’m writing here about the legality of it.

Search warrants are my thing. I’ve taught the subject to lawyers for over a quarter of a century. I’ve authored manuals about them for prosecutors and law enforcement agencies. I will put my expertise about the subject up against any of the “experts” I’ve heard expounding (often wrongly) in the media since the raid.

I’ve read the redacted version of the affidavit supporting the warrant, but I’m not getting into whether it establishes “probable cause” (the legal requirement to issue a warrant), because that is irrelevant at this point. Even if does (which can’t be determined from the redacted version) that has nothing to do with whether the warrant lacks the particularity required by the Fourth Amendment — and history.

Probable cause in the affidavit, and particularity in the warrant, are two distinct legal issues. All I will address here is the latter.

In my expert opinion the warrant used by the FBI to search Donald and Melania Trump’s Mar-A-Lago home was an illegal general warrant which violated their rights under the Fourth Amendment to the United States Constitution.

You can read the warrant for yourself, here.

The operative language is “All physical documents and records constituting evidence, contraband, fruits of crime, or other items illegally possessed in violation of 18 U.S.C. §§ 793 , 2 071 , or 1519″.

I challenge readers to review those statutes and figure out what “documents and records” can legally be seized under this particular warrant. I can’t – and I’m an expert on what can be seized with a search warrant.

Apparently the FBI agents seizing the documents couldn’t either – so they just took all the documents they found. Including, it turns out, documents revealing communications between Trump and his lawyers that are protected under the attorney/client privilege. Oooops!

There is no possible interpretation of the statutes named in the warrant, or the language of the warrant itself, which would include attorney/client privileged communications as “constituting evidence”. That is legally impossible.

There are very limited circumstances in which the failure of a warrant to meet the particularity requirement can be remedied by what appears in the supporting affidavit. But to do so the affidavit must accompany the warrant – not be released separately in redacted form.

The burden of proof is on the government to justify the “scope” of the search (meaning what they can search for and seize). That they apparently can’t do so is evidenced by the fact they have refused to release the complete affidavit. If it did support the scope of the search, there would be no legal reason not to release it in the entirety — rather than just the redacted version.

It’s possible the entire affidavit has not been released because doing so could expose some FBI agents to criminal prosecution. Violation of the particularity requirement, by searching agents, is a federal crime. 18 USC Chap. 109, sec 2234, provides that “Whoever, in executing a search warrant, willfully exceeds his authority” commits a felony. Hmmmmm…

But given how corrupt the Department of Justice has become since 2008, don’t hold your breath waiting for the agents who seized the attorney/client privileged documents to be prosecuted. That would require a degree of integrity the Department hasn’t demonstrated it possesses.

That the raid on Mar-A-Lago was “a general, exploratory rummaging in a person’s belongings” is demonstrated by the FBI agents rummaging through Melania Trump’s clothes closet, and the fact they wanted the security cameras turned off in the house during the search. Why else would the agents want the cameras turned off. The Mar-A-Lago staff, and Trump’s lawyers, refused to turn them off, so there is not dispute what the agents did inside the home during the raid.

I realize there is a history of male FBI personnel (ie J. Edgar Hoover) cross-dressing in women’s clothing, so possibly the male agents were looking for fashion accessories in Melania’s closet. But Melania’s clothes are not “evidence” constituting violation of a federal statute by any stretch of search warrant law.