You promised a second chapter of the federal grand jury lawsplainer!
i do what i want
That's fine. Because I want to ask about something else anyway.
You have the attention span of a fruit fly. What is it now?
Did you hear? FBI agents working with Special Counsel Robert Mueller raided the house of Paul Manafort, Trump's campaign manager!
Yes. That's . . . that's quite a thing, there.
What does it mean? What can we tell from it? What's a search warrant anyway?
Please try to calm down.
Okay, first. Have some skepticism about this story — and about any media story about the federal criminal justice system. Stories about federal criminal justice, even from respected publications, are often wrong in crucial ways — using legal terms they don't understand the wrong way, drawing incorrect conclusions about routine events, and so forth.
But we can believe that about everything else?
Yes, I assume that except for criminal justice and First Amendment law, I'm confident they're perfectly reliable.
Anyway, let's talk about this search warrant.
The Fourth Amendment requires the government to get a search warrant before they search your house, absent an unusual exception like "exigent circumstances." (So, for instance, the cops can run into your house and look around if a guy with a gun just ran in there.)
How do the feds get a search warrant?
In the federal system, federal agents present search warrant applications to United States Magistrate Judges for review. Magistrate Judges aren't nominated by the President and confirmed by Congress like United States District Court judges — they are appointed by other federal judges for set terms, and have a reduced level of authority and responsibility. They do a lot of the unglamorous day-to-day work of the federal judiciary.
The magistrate judge reviews the search warrant application and, almost always, signs the warrant approving it.
What's in a search warrant application?
State warrant applications are sometimes oral. Federal applications are almost always in writing. The bulk of the warrant application is the affidavit — a sworn statement by a federal agent setting forth the facts establishing probable cause. Then there's the draft warrant itself, which must specify the locations to be searched and the particular items to be seized.
So to search my house a federal agent has to show probable cause that I committed a crime?
No. Probable cause to search is different that probable cause to arrest.
To get a federal search warrant, you have to show probable cause that the location you want to search contains evidence of a federal crime — specifically, the items you list as things you want to seize in the search. You don't have to show that the homeowner or other person at the site committed a crime, just that items there are evidence of a crime.
It sounded like you were suggesting that magistrate judges sign off on search warrants no matter what.
Well, I think that magistrates can be a little rubber-stampy at times. But probable cause is a pretty low bar. And federal search warrant applications are generally much better than state search warrant applications, which are often so vague and scattered that you wonder why we bother at all.
Federal courts are somewhat better at policing bad warrants than state courts are. Federal courts, traditionally, have held warrants to a higher standard. And federal prosecutors typically review warrants and edit them before agents present them to magistrate judges, so there's an additional level of review to catch problems. That's why federal search warrant applications in complex cases are commonly dozens or even more than a hundred pages long.
What kind of problems to the prosecutors reviewing the warrants look for?
Prosecutors trying to assure a good warrant look for attribution — for language explaining how the agent knows what he or she is telling the magistrate. "I want to search the house because the homeowner buried a body in the back yard" is bad attribution; it's a conclusion. "I reviewed a report by FBI Special Agent Rex Strongchin. SA Strongchin wrote that he spoke to Sally Neighbor, who lives next door to the homeowner. Ms. Neighbor told SA Strongchin that on August 1st, whilst up in the middle of the night medicating her asthmatic cat, she looked out the bathroom neighbor and saw the homeowner in his back yard, pushing what appeared to be a body into a hole" is good attribution. It establishes every link in the chain to who knew what and how. That's part of establishing probable cause.
Another common problem is specificity in items to be seized. Warrants are supposed to be reasonably particular in describing what can be seized. The Fourth Amendment was actually designed to address the problem of "general warrants" letting officials just toss your house for everything and anything. A good warrant describes, as narrowly and specifically as possible, what can be seized and why those things are evidence of a crime.
Oh. So federal agents only seize what the warrant tells them to seize?
Ha, no.
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."
Okay. I want to ask more about the search warrant at Manafort's house. The article said the raid was "pre-dawn." Is that unusual?
Well, first of all, take it with a grain of salt. "Pre-dawn raid" is a stock literary phrase, like "wine-dark sea" in Homer. Exercise some skepticism about whether it really was pre-dawn.
Federal search warrants are supposed to be served during "daytime hours," meaning between 6 a.m. and 10 p.m. But the magistrate judge can approve other hours. In drug cases, because Drugs Are Bad And Dangerous and Imperil Our Children, it's presumed magistrates can approve nighttime searches. Otherwise, magistrates are supposed to balance the citizen's right to privacy against government need.
Most often the asserted need has to do with perceived physical danger. But assuming that the feds didn't expect Manafort to show up on his porch in a flowered robe and a submachinegun saying "say hello to my little friend," I suspect that the feds told the magistrate that they were afraid that Manafort was imminently going to destroy evidence because he'd been quizzed by the staff of the Senate Intelligence Committee. They probably said they believed that based on what he was asked he learned new avenues of investigation and might destroy documents and so an immediate search was necessary. That's exactly the sort of prosecutorial hypothesis that magistrate judges tend to rubberstamp. They might have also offered some hand-wavey stuff about how searching during the day would result in a media shitstorm on the street impeding their investigation and so forth.
So it sounds as if we should read the search warrant affidavit if we want to know what Robert Mueller thinks about this investigation. Since it had to establish probable cause it should have lots of juicy details. Can we get it?
Absent a leak, no.
The search warrant affidavit isn't a publicly available document — at least not at this stage of the case. The agents only leave the warrant itself on the scene. The warrant states the place to be searched, the items that can be seized, and what the items are believed to be evidence of — that is, the specific federal criminal statutes at issue. So Manafort and his lawyers have that information, from which they can glean some information — you can draw conclusions based on what items the prosecutor is looking for and what crimes the prosecutor thinks have been committed. But generally the prosecution doesn't release the search warrant affidavit — the juicy stuff — until discovery in any resulting criminal prosecution.
Occasionally federal agents will accidentally leave the search warrant affidavit on the premises. Once a prosecutor asked me to make my client return the affidavit because it was confidential information. I laughed for a very long time.
What about what the FBI took from his house? Do we know that?
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.
What do you think about Robert Mueller ordering the search in the first place? Is it unusual?
Yes, it is.
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.
Why would he want to provoke people?
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.
Copyright 2017 by the named Popehat author.
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