Trump and his followers are apoplectic about the FBI’s search of Mar-a-Lago on Monday. Trump has called the search a “raid” (“They even broke into my safe”) and various Republican politicians have demanded the attorney general resign and called on the U.S. Justice Department to release the documents associated with the search.
They all ignore two important realities that are at odds with their accusations and demands.
1.A search warrant is a tightly regulated legal instrument based on the Fourth Amendment to the U.S. Constitution. The amendment’s language is unequivocal: “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.” Thus, Trump’s home couldn’t be searched until a federal magistrate had reviewed the warrant, questioned the law enforcement agents proposing the search, inquired into the “probable cause,” and then signed off on the search. You can be sure the judge in this case, Bruce Reinhart, who was appointed during Trump’s administration, understood the historical significance of what he was reviewing, and took it very seriously.
2.The person whose home or other property is being searched gets a copy of the search warrant. Law enforcement officials almost never release a search warrant because it contains information related to an ongoing investigation, which is kept confidential until charges are filed, or not filed. However, the subject of the warrant is free to release a search warrant as he or she sees fit. That’s how I’ve obtained a number of search warrants over the years—directly from farmers and owners of food clubs whose facilities or vehicles have been the subjects of searches by state and federal regulators. The farmers felt they had done nothing wrong, and wanted to let supporters see the weakness of the cases against them.
Here is one such warrant, covering the 2011 search of a delivery truck owned by Alvin Schlangen, a Minnesota farmer who was put on trial twice for illegal sales of raw milk and other foods, and exonerated.
When you read the warrant, you see it follows the form prescribed in the Fourth Amendment. It is very specific in describing the vehicle subject to being searched, and even limits the time it can be searched to between 7 and 8 am. It adds an affidavit from the agriculture official providing evidence that has led him to believe Schlangen was violating the law. For example, “On February 14, 2011, I received a telephone call from a person who identified himself and stated that he is a tenant of the building” Schlangen had space in. “The person was concerned that another tenant, Alvin Schlangen, was conducting illegal activity in the building and that authorities might mistakenly think other building tenants like himself were involved.” The affidavit lists other potentially incriminating information from the tenant as well as evidence culled from a previous interview the agriculture inspector had with Schlangen.
For Schlangen, the farmer, a jury eventually acquitted him of the charges, in part because supporters had read about the case on this blog and other places.
In Trump’s search warrant, I would venture that there is much detail about Trump’s safe that was cracked open—what agents expected to find and what kinds of things were off limits to them. Same for other areas of the house.
The farmers who gave me their warrants did so because they felt they hadn’t done anything illegal and that agriculture officials were harassing them. If Trump feels so strongly that he is innocent and that the search of his residence was “a raid,” why doesn’t he just make public his warrant, which is likely much more voluminous than the farmer warrant displayed here?
There could be any number of reasons he doesn’t want the information contained in the warrant going public. Perhaps there are documents with information he wanted to use to blackmail adversaries. Possibly he hoped to sell documents from well known world leaders. Or possibly he just wants to stick it to his country, which owns the documents. Most likely, he just isn’t so sure the documents sought by the government don’t incriminate him. So in the followup news about this first-ever search of a former president’s residence, keep your eye on what the former president decides to do about releasing the warrant, and not on all the noise Trump and his followers are making.