In episode seven of season three of “The Sopranos,” Paulie Walnuts knocks on fellow mobster Chistopher’s door demanding entry so he can, “take a look around.” Paulie first jokingly identified himself as “FBI” before conducting a search that included girlfriend Adriana’s underwear drawer at which point . . . well see it for yourself.
Not surprisingly, the invasion of Adriana’s privacy outraged Christopher as it would any man forced to endure an adversary pawing through the clothes of the woman he’s supposed to protect. The scene came to mind as we learned that the FBI’s raid of Mar-a-Lago featured an intrusion into Melania Trump’s private wardrobe. This is the inner sanctum of privacy in a marital home. A bedroom wardrobe is the kind of place people keep lingerie and other items not meant for the eyes of anyone but a spouse. Whether the Trumps might have kept such things in their bedroom wardrobe is beside the point. It’s a private area that the government shouldn’t be searching without proper justification.
According to the New York Post, Trump maintained documents from the White House in a “windowless storage room,” to which Trump had previously granted access to both the FBI and lawyers representing the National Archives and Records Administration (NARA). Why would the FBI need to search the entire compound if the documents were known to be stored in that basement? As reported by the Post, “The demeanor of the three Justice Department lawyers who accompanied the FBI was described by one eyewitness as ‘arrogant,’ and they repeatedly told Trump representatives: ‘We have full access to everything. We can go everywhere.’”
On Thursday, Attorney General Merrick Garland held a short press conference after which he refused to take questions. He announced that the Justice Department had filed a motion to unseal the warrant and the inventory of things taken from the Trump compound. He also disclosed that he personally had approved the warrant, and assured the public that it was narrowly tailored and employed only after less-intrusive means were exhausted.
We can be skeptical of both of those statements.
Notwithstanding the attorney general’s claim of investigative discretion, the FBI “sources” anonymously leaked to its network of journalists to stem the public relations disaster that the irregular search provoked, (here, here, and here).
The FBI’s puppets in the media are now floating the narrative that criticizing the FBI’s conduct makes the critic morally responsible for any threats or violence from the outraged public.
But let us return to the search itself. For context, let’s start with the Fourth Amendment to the Constitution. It provides,
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Although volumes have been written interpreting this short passage, the original language is reasonably clear and useful for reviewing what we know about the FBI’s intrusion into Trump’s private home.
Question 1: How did the Justice Department Justify Searching the Entire House?
Now that the warrant and return of property have been revealed, we have some clues as to how the Justice Department justified the comprehensive search. As mentioned above, the Constitution requires the warrant “particularly” describe the place to be searched and the things to be seized. It describes the areas to be searched “include the ‘45 Office,’ all storage rooms, and all other rooms or areas within the premises used or available to be used by FPOTUS (the former president of the United States) and his staff and in which boxes or documents could be stored.”
In other words, everything. Every drawer, every bookshelf, between mattresses, inside underwear drawers, and so on. Was the objective to retrieve official records or to intimidate and humiliate the former president by desecrating every private corner of his personal home?
The warrant also identifies the property to be seized as, “All physical documents and records constituting evidence, contraband, fruits of crime, or other items illegally possessed in violation of 18 USC §§ 793 (possession of national defense information), 2071 (concealment, removal, or mutilation of records/maps), or 1519 (destruction of records).”
The warrant does not disclose why the FBI reasonably believed a search for missing boxes of records would take an FBI agent to the former First Lady’s underwear drawer. It is now being reported that an informant close to Trump guided the FBI to the location of certain documents. Yet, somehow, the FBI ended up with what resembles a general warrant with the authority to search every square foot of Mar-a-Lago. Was the FBI really looking for boxes of documents in Mrs. Trump’s wardrobe? Or was it channeling Paulie Walnuts in seeking to deliberately humiliate the Trumps through this gratuitous invasion of privacy?
If the FBI was being guided by an informant, it certainly did not focus its search. According to one report, “A source familiar told Fox News that FBI agents went to Mar-a-Lago and looked in every single office and safe, and grabbed documents and boxes without going through them on the property. They took boxes and documents to go through them later.”
As noted by the U.S. Supreme Court, “The Fourth Amendment was in large part a reaction to the general warrants and warrantless searches that had so alienated the colonists.” So the first thing I’ll be looking for in the warrant and application is the Justice Department’s justification for searching the entire residence.
Question 2: Did the FBI really exhaust all of the less-intrusive alternatives?
According to Fox News, Trump willingly cooperated with investigators to ensure mutual agreement on a process for securing the records during negotiations over the materials that should be returned to the National Archives. As Fox reported,
Those investigators toured the area of the Florida resort where some documents were stored, then briefly viewed and took custody of a small amount of potentially sensitive material. Separate sources told Fox News that federal investigators had spoken with at least one person who relayed the possibility of more sensitive national security material in that storage room and other areas of the property.
FBI officials, that day, asked to see a storage facility where the records were located. The FBI asked that staff put a lock on the storage room, which they later did.
This source said Trump and his staff were, and are, committed to being in compliance with the Presidential Records Act, which requires presidential administrations to preserve certain documents.
As the Justice Department’s inspector general has noted, “The [attorney general] Guidelines . . . require that ‘least intrusive’ means or method be ‘considered’ when selecting investigative techniques.” The Constitution guarantees freedom from unreasonable search. How can a search be reasonable if it is unnecessary?
Nothing in the search warrant or property receipt indicates that the FBI found the records in any location other than the dedicated basement room to which the FBI had already been given access. Did the warrant affidavit claim the records were in imminent danger of being destroyed or shared with foreign adversaries? We don’t know because the FBI is predictably keeping its justifications secret.
In its review of the Russia collusion hoax FISA warrants, the OIG faulted the Justice Department for using confidential human sources (spies) and a search warrant to obtain information from Carter Page while ignoring Page’s offer to voluntarily submit to an FBI interview. The explanation is simple. The FBI didn’t care what Page had to say and he wasn’t the real target of the search. Thus, an interview with FBI agents would have completely frustrated the pretext to use Page’s communications as a window into the Trump campaign.
So when it applied for the warrants, the FBI withheld from the judge evidence of Carter Page’s history of cooperation. This included Page’s offer of an interview and a history of reliably providing information to the CIA about the very matter for which the FBI said it wanted a warrant. When Page later publicly disclosed his work with the CIA, the FBI reacted by falsifying an email from the CIA to contradict this claim and submitted that false evidence to the court to justify continued surveillance.
In the instance of the raid on Mar-a-Lago, the stench of political retribution permeates the entire operation. Thus, one should closely scrutinize whether the FBI might have failed to disclose Trump’s history of cooperating with the probe when it applied for the warrant. Unfortunately, we don’t have that information within the warrant and receipt of property because the Justice Department withheld the supporting affidavit. The FBI has done nothing to acquit itself by failing to demonstrate it complied with the “least intrusive” doctrine.
Question 3: What did the FBI take and where did it find it?
Although the FBI had exclusive access to Mar-a-Lago from 9 a.m. to 6:30 p.m., it apparently scooped up documents indiscriminately without bothering to ascertain whether the records were the target of the search. The receipt of property contains 39 separate entries. With 30 agents working for over 9 hours, there should have been more than enough time and manpower to describe in particular detail what it needed to seize, and to leave behind materials not relevant to the search. What we hoped to see is a detailed description of documents gathered demonstrating that the FBI had reasonably calculated those to be the records sought.
But the FBI instead employed vague descriptions such as, “miscellaneous secret documents,” or “binder of photos.” The receipt for property does not disclose where the FBI located the seized items. Although the FBI seized 21 boxes, it did not state on the receipt for property that it had bothered to confirm that any of these boxes had anything to do with presidential records. The FBI’s sloppy, slapdash onsite inventory of the seized property means the FBI potentially seized and now has access to private Trump papers that have nothing to do with the dispute at hand. Many suspect that the FBI used the search as a pretext to look for dirt on Trump that could be used in connection with a January 6 prosecution.
Every president has taken records with him which he conveyed to himself as president. The Clintons were famously required to return or purchase more than $100,000 in gifts they took with them as they left the White House. As noted by Stripes.com, “all recent administrations have had some violations of federal records laws—most often involving the use of unofficial email and telephone accounts.” It’s hard to escape the perception that the Justice Department is treating Trump differently from other former presidents.