Federal search warrants, explained

  • 11 August 2017
  • NormanL
Federal search warrants, explained

The controversy over an FBI raid of former Trump campaign manager Paul Manafort's home has some folks crying foul. Why was it done? What's the law behind all this? Is special counsel Robert Mueller just trying to squeeze Manafort to get to Trump?

Fortunately, Ken White -- an attorney and former federal prosecutor --  offers answers to these and many other questions in his most recent posting on federal search warrants. 

White offers a lot of material on how federal warants are obtained, and how searches and seizures are conducted. On the topic of seized evidence, White writes:

Even the best-trained and most responsible federal agents — and I mean this with the utmost respect — tend to act like coked-up raccoons when you turn them loose with a search warrant. They seize stuff haphazardly, based on very odd internal definitions of what "evidence" is. This used to drive me absolutely bonkers as a prosecutor, because I would hector them in advance and review the items to be seized with them, and they'd come back with a box of randomly assembled documents as if I'd said "look, just grab everything with a 'q' on it."

What was taken from Manafort's home? 

Well, Manafort knows that, obviously. And the FBI also leaves a sort of receipt — a list of the things they took. It tends to be very general, especially with regard to documents, like "one box of documents from hall closet." The federal agents return that to the magistrate judge, but it does not tend to be accessible to the public.

The article asserts that the FBI sized "various records." But be cautious about inferring anything about that. First of all, the only requirement is that there's probable cause to think those records are evidence of a crime, not evidence of a crime by Manafort. Second, as I said, FBI agents tend to be about as selective as a Golden Retriever thrust into a tennis ball pit. Third, law enforcement is not above seizing a bunch of shit just to make it look like their search was successful. In fact, they're not even above faking it. I represented a dude whose house was raided. The investigators tipped off the media to be there. They'd brought about a dozen prefab cardboard boxes to carry out documents they seized. But they found no documents. They didn't want to walk out empty-handed, so they assembled the cardboard boxes inside the house, put on the lids, and solemnly carried the empty boxes out to their raid van. The press obediently printed that many boxes of documents had been seized.

But why was such a raid necssary at all? What's Mueller's game here?

We know that Mueller has started using a grand jury actively. Generally federal prosecutors tend to issue search warrants at the end of white collar investigations, not at the beginning. Search warrant raids tend to put everyone on high alert and shut people down. Federal prosecutors generally like to use the grand jury to develop witnesses and evidence before that, and subpoenas demanding production of documents are more common in white collar investigations than search warrants.

There are a few reasons Mueller might have gone with the search warrant. He might have genuinely believed that Manafort couldn't be trusted to turn over documents in response to a subpoena. He might have thought that Manafort would hold documents back, or that he was even going to destroy documents. He might even have had some sort of intel suggesting that Manafort was already destroying documents. He might have used the search warrant as a shock-and-awe measure to scare other people in the investigation into cooperating or provoke them into doing dumb things. Whatever else he is, Robert Mueller is very experienced and professional. I'm sure he did it deliberately and with a plan.

Where might all of this legal theater lead?

Federal grand jury investigations can be like a Game of Thrones plotline. To finish you, federal prosecutors don't necessarily have to prove that you already committed a crime — they can simply play upon your human flaws and get you to finish yourself. High-profile defendants are routinely taken down not based on the initial crime they committed, but by their reckless response to the investigation — they're ended not by the crime, but by the ineffectual coverup. Mueller knows what he's doing, knows that he's dealing with unusually volatile personalities particularly unsuited to patient inaction, and is probably counting on people to react foolishly, self-destructively, and criminally to startling events like a search warrant.

We encourage you to read the entire post. White urges both restraint and skepticism regarding the raid. He also offers invaluable insight into how federal search warrants are issued, the search and seizure process (which sometimes is purely for the benefit of the press), and how all of it could point to a coming climax in Manafort's legal troubles.

And for more discussion and insight into the threats government poses to our Fourth Amendment protections, go here to review our past posts.