In an unprecedented act, FBI agents raided the residence of former president Donald Trump. A few days later, in an almost unheard-of event, the sitting Attorney General (Merrick Garland) commented on an ongoing investigation of the former president. 1 The former president agreed to release the search warrant and receipt issued during the raid. 2
At issue now is a Fourth Amendment requirement regarding privacy:
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.
With the release of the warrant and receipt, the public can now examine if the government has complied with this constitutional requirement for particularity in a search warrant. I find an initial examination of those documents an alarming indication that the government has engaged in overreach, conducting a political fishing expedition rather than a lawful search.
For example, the DOJ receipt lists an Executive Grant of Clemency re: Roger Jason Stone, Jr. as being seized in the raid, along with the entire contents of that box containing it (A-1). Trump's possession of this document cannot be a crime; it is a matter of public record published in numerous sources, including the DOJ's public website. 3
The relevant law the DOJ cited in the warrant (44 USC 3301) is intended to prevent the destruction and concealment of public records and clearly states that records covered under the law do not include duplicates and reference material. Yet the media has cited this as an indication that the Presidential Records Act may have been violated. That's simply absurd to anyone who understands the act.
Legally, the DOJ has knowingly subjected itself to the so-called "Fruit of the Poisonous Tree" defense. Even if any incriminating evidence was uncovered, it becomes unusable; therefore, the DOJ's actions unsound on constitutional law principles. But the political motivation (to imply Trump somehow acted improperly through the court filing and raid) seems clear.
What political consequences will the FBI, DOJ, and current administration face from taking these actions shortly before the mid-term elections?
“The requirement that warrants shall particularly describe the things to be seized makes general searches under them impossible and prevents the seizure of one thing under a warrant describing another. As to what is to be taken, nothing is left to the discretion of the officer executing the warrant.” 1 This requirement thus acts to limit the scope of the search, as the executing officers should be limited to looking in places where the described object could be expected to be found.2 The purpose of the particularity requirement extends beyond prevention of general searches; it also assures the person whose property is being searched of the lawful authority of the executing officer and of the limits of his power to search. It follows, therefore, that the warrant itself must describe with particularity the items to be seized, or that such itemization must appear in documents incorporated by reference in the warrant and actually shown to the person whose property is to be searched.3 (because the language of the Fourth Amendment “specifies only two matters that must be 'particularly describ[ed]' in the warrant: 'the place to be searched' and 'the persons or things to be seized[,]' . . . the Fourth Amendment does not require that the triggering condition for an anticipatory warrant be set forth in the warrant itself.”