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.

Why Stopping a Subpoena Can Be a Big Thing

The State of New York has sued the Trump Organization and Trump family members individually as part of investigation into several questionable financial dealings. Oversimplified, the suit suggests that the defendants carried at least two sets of financial books. One set of books purportedly inflated property values for purposes of obtaining financing. Another one deflated values for tax purposes. 

This is a civil suit that seeks financial damages, unlike a criminal suit that might result in jail time. 

New York issued subpoenas to Trump family members to testify under oath in a deposition. Today’s hearing was to hear Trumps’ objections to these subpoenas. The court denied Trumps’ objections and ordered the family members to appear for depositions within a few weeks’ time. The order will certainly be appealed. 

One may ask why this is such a big deal. After all, Eric Trump has had his deposition taken previously in this case and “pleaded the fifth” more than 500 times. 

As anyone who has taken a Government class will recall, you are never forced to testify against yourself. You are completely protected from incriminating yourself. The effect of refusing to testify (or answer questions), however, is markedly different in criminal and civil cases. 

In a criminal case, the refusal to testify may not be used against you. Thus, a jury must disregard your willingness or unwillingness to testify in determining your guilt or innocence. 

In a civil case, you retain the right to refuse to answer questions or testify. However, the jury make take that into account in deciding the case. In other words, a jury could infer bad intent if the Trumps were to refuse to answer questions. 

Donald Trump has repeatedly said publicly that people who “take the fifth” or refuse to testify are likely guilty of charges against them. The State of New York will undoubtedly introduce those statements into evidence at the eventual civil trial if testimony is refused. 

That is why it was so important for the Trumps to win on the subpoena motion. Having lost, they are now facing a true quandary. Do they testify and subject themselves to explaining financial discrepancies (and possible perjury) or do they remain silent and accept the consequences of that inference? 

The answer to that question has taken on even greater weight this week when their accounting firm stated in a letter that financial statements over the last ten years are unreliable. In the same letter, the Trump Organization was fired as a client due to a “conflict of interest.” 

In this context, “conflict of interest” means that the accounting firm believes that their interests and that of the Trump Organization are in conflict. The Trump Organization was, to use a common phrase, thrown under the bus.