Cutting through the search warrant noise

I have spent considerable time this afternoon sorting through the contents of the warrant, reading the statutes, and gauging the various reactions to it.

We can get rid of a couple of talking points right away. 

First, from a legal standpoint it does not matter whether the materials seized were classified or not. It also does not matter whether Trump did (or could) declassify these documents on his own volition. Those arguments are smokescreens. The statutes underling the warrant, especially those dealing with espionage, make no distinction between classified and unclassified materials. The only question is whether Trump was, as a matter of law, entitled to retain these documents and materials.

Second, as Attorney General Garland pointed out, search warrants are not issued lightly, particularly at this level. The record shows that the materials seized this week had previously been subpoenaed. It was Trump’s failure to produce them under the terms of the subpoena that made the search warrant the only available remedy to get them. 

Moving on. It is the job of lawyers to cut through the noise (and there’s plenty of it here). While most people are talking about what was seized, the most critical piece of the puzzle is the criminal statutes listed in the probable cause affidavit that led to the warrant being issued. 

In order for the judge to grant the search warrant, he needed to find probable cause for EACH of the statute violations that would constitute a crime. Therefore, if the judge decided that the only violated statute was retaining government records, he would have rejected the part of the warrant pertaining to other crimes, including espionage.

Do you see why this is important? It means that the judge found probable cause that there was a violation of the espionage statute. THIS is what people should be talking about. 

Further, because espionage necessarily involves more than one person, the seized materials may be used to charge additional individuals with numerous felonies, including treason. 

If indictments eventually come down for a number of people, the serious finger pointing will start and plea deals for cooperation will begin.  Typically, the smaller fish rat out the larger ones and we know who the largest fish is. 

Some are suggesting that the issuance of the search warrant smacks of political vindictiveness. However, both the FBI Director and judge were appointed by Trump. They had every excuse to not act. However, probable cause of espionage simply could not be ignored. 

“Taking the Fifth“ has its risks

We normally associate “taking the Fifth” with a criminal case. Refusing to testify or answer questions where you are a criminal defendant cannot be used against you by the jury. This is your constitutional right against self-incrimination. 

In civil cases, the impact of refusing to testify is more complicated. Consider what happened today in New York. 

Donald Trump appeared this morning for questioning under oath in New York’s continuing investigation into his business practices. He refused to answer questions, citing his Fifth Amendment rights. 

Although he certainly had the right to refuse to answer, that refusal may come back to bite him. In a CIVIL case, a jury may consider the refusal to testify or answer questions as evidence of wrongdoing.  This is especially true where there is independent evidence of the facts at issue. 

Trump’s argument against testifying today is at least partially based on the fact that he is currently also under criminal investigation. His fear is that his statements under oath in the civil case could be used against him in a criminal case. When he previously raised that argument in order to delay the civil investigation, the New York courts rejected it. 

Trump’s failure to succeed in what are his typical delaying tactics have now placed him in a quandary. If he does not testify in the civil matter, the jury could later use that silence to find him liable for significant money damages. If he does testify in the civil case, that testimony might damage his defense in a criminal matter. 

In spite of what has the potential of being a massive financial judgment against him, Trump really cannot afford to testify in the civil case. 

In my summation before the jury, I would note Trump’s own statement at an Iowa rally in 2017: "You see the mob takes the Fifth. If you're innocent, why are you taking the Fifth Amendment?" 

His attorney would respond with his statement posted today on his social media site: “I once asked, 'If you're innocent, why are you taking the Fifth Amendment?' Now I know the answer to that question. I declined to answer the questions under the rights and privileges afforded to every citizen under the United States Constitution." 

My rebuttal then would be short and sweet. “It is clear that the defendant feels comfortable taking completely opposite positions when it suits him. As such, he has no credibility.”

Search Warrants and Whataboutisms

Criminal investigations can be highly complex matters. The gathering of evidence is critical to making certain that any case that is brought is supported by only the most credible supporting documents. 

Some of the documentation can be obtained from third party sources, such as credible eyewitnesses, confidential informants, video and audio records, and paperwork in the possession of others. However, the frequently most damaging evidence is in the possession of the potential defendant. 

Obtaining materials from a potential defendant can be obtained in number of ways.  The defendant can always provide the materials voluntarily. Obviously, this does not happen often. 

Absent cooperation, information may be obtained by a subpoena, a court-authorized demand for relevant papers. There are a couple of downsides to the subpoena process. 

First, a subpoena may be challenged as to relevancy or scope. Challenges to subpoenas have the effect of dramatically delaying the production of documents, often for years if appeals are pursued. The reason delays are implicit in this process is that subpoenas are often fishing expeditions. Prosecutors will often ask for broad categories of information, some of which may not actually be germane to the charges. The challenges to the subpoena frequently are designed to narrow the scope of what should legitimately be produced. 

Second, and perhaps the more critical limitation of subpoenas, is that once someone knows that records are being demanded, there is ample opportunity to hide or destroy evidence. 

The final way to obtain documents is through the use of a search warrant. This method is most frequently used when there is a fear that evidence will be hidden or destroyed. 

Although subpoenas are relatively easy to obtain, the requirements for obtaining a search warrant are stringent. There are sound constitutional and public policy reasons for this. By their very nature, search warrants involve invading the homes and businesses of individuals without the opportunity for them to object. The general “fishing for information” goal is therefore not enough to obtain a warrant. 

In order to get a search warrant, a judge must approve the request. The judge must find that there is “probable cause” to believe that a SPECIFIC crime has been committed (which is outlined in the warrant request). The judge must also be convinced that material evidence about the crime is located in the premises to be searched. Finally, the judge will specifically circumscribe when and where the search is to be conducted. 

Once the materials are seized, this is not the end of the protections for the defendant. Seized materials are still subject to evidence rules pertaining to what may be used in a court case. 

In a lower level criminal case, the prosecutor may ask for a warrant based on the sworn affidavit of a reliable confidential informant. For example, the informant may say that he is personally aware of drug-making materials at a particular address. That will usually be enough to issue the warrant, because if the defendant knew someone is coming, there would be nothing left to find. 

The standard for obtaining a search warrant for a former president is incredibly and nearly impossibly high. Any judge would be extremely reluctant to issue the warrant unless the rationale for obtaining it was almost unassailable. In the Trump case, the Justice Department imposed an even higher degree of difficulty upon themselves by requesting the warrant from a judge that Trump appointed. Therefore, to say that the DOJ likely had a strong case coming in is a massive understatement. 

Those reacting negatively to this warrant have variously described the process as “corrupt” or as evidence of the “deep state.” That argument is pure garbage. The process to obtain this warrant followed the precise procedural safeguards that forms the basis of our system of government. 

Further, for those who are saying “other people have committed crimes too, why isn’t the DOJ going after them?”, remember the exceptionally high standard for obtaining the warrant. Mere supposition of a crime, even if it fits your preferred narrative, is simply not enough.