Tuesday, August 9, 2022

Probable Cause

From the Washington Post:

Former president Donald Trump said Monday that the FBI had raided his Mar-a-Lago Club and searched his safe — activity related to an investigation into the potential mishandling of classified documents, according to two people familiar with the probe.

One of the people, who spoke on the condition of anonymity to discuss its details, said agents were conducting a court-authorized search as part of a long-running investigation of whether documents — some of them top-secret — were taken to the former president’s private golf club and residence instead of sent to the National Archives when Trump left office. That could be a violation of the Presidential Records Act, which requires the preservation of memos, letters, notes, emails, faxes and other written communications related to a president’s official duties.

Searching a former president’s property to look for possible evidence of a crime is highly unusual and would require approval at the top levels of the Justice Department. It represents a historic moment in Trump’s tortured relationship with the Justice Department, both in and out of the White House.

A department spokeswoman declined to comment when asked whether Attorney General Merrick Garland approved the search. The FBI also declined to comment.


The president of the FBI Agents Association, Brian O’Hare, issued a broad defense of the investigators who carry out court-approved searches, without commenting specifically on the Trump case.

O’Hare said search warrants are issued by federal judges, “must satisfy detailed and clear procedural rules, and are the product of collaboration and consultation with relevant Department of Justice attorneys.”

FBI agents, he added, “perform their investigative duties with integrity and professionalism, and remain focused on complying with the law and the Constitution.”

Anyone who went to law school, paid attention in civics class in high school, or has watched “Law & Order” knows that a search warrant is only issued when detectives can present enough evidence to a judge to justify a search. It’s called probable cause, and it’s detailed in the Fourth Amendment.

The Fourth Amendment (Amendment IV) to the United States Constitution is part of the Bill of Rights. It prohibits unreasonable searches and seizures. In addition, it sets requirements for issuing warrants: warrants must be issued by a judge or magistrate, justified by probable cause, supported by oath or affirmation, and must particularly describe the place to be searched and the persons or things to be seized.

Fourth Amendment case law deals with three main issues: what government activities are “searches” and “seizures”, what constitutes probable cause to conduct searches and seizures, and how to address violations of Fourth Amendment rights. Early court decisions limited the amendment’s scope to physical intrusion of property or persons, but with Katz v. United States (1967), the Supreme Court held that its protections extend to intrusions on the privacy of individuals as well as to physical locations. A warrant is needed for most search and seizure activities, but the Court has carved out a series of exceptions for consent searches, motor vehicle searches, evidence in plain view, exigent circumstances, border searches, and other situations.

It would be ironic if Trump ended up in legal jeopardy for violating the Presidential Records Act as opposed to fomenting a rebellion against the government. Remember that Al Capone went to jail for tax evasion, not bootlegging or murder.


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