The media is collectively talking too much about the drama surrounding the search warrant executed at the Alexandria home of former Trump Campaign Chairman Paul Manafort and not enough about how and why that warrant came about. The serious story here isn’t the sexy narrative about a sensational predawn commando raid (as exciting as that might be); it’s the standard for obtaining a warrant to conduct such a raid.
Here’s what a federal search warrant looks like:
(If you are ever served one of these, follow four simple steps: regain bladder control; get out of the way; call the best lawyer you can afford; and as to your new friends and visitors, keep your mouth SHUT.)
A warrant — the preferred method of obtaining evidence according to the Fourth Amendment to the US Constitution — is designed to prevent “unreasonable” searches and seizures.
Note the references in the warrant form above to a) affidavits or testimony and b) probable cause. Legally, those are the important parts. Under the Fourth Amendment, a government investigator must provide both of these things to obtain a warrant.
Affidavits and testimony
First of all, a search warrant is not issued just because a law-enforcement officer or prosecutor asks for one. The person seeking a warrant doesn’t have to produce the physical, testimonial, or documentary evidence of any crime that is the subject of the warrant, but he or she must at least describe it in a sworn affidavit or recorded testimony. The person seeking the warrant may not just ramble on with speculation or conjecture; he or she must describe, with specificity (including citations to the statutes — laws — at issue), the crime or crimes that investigators believe have been committed and the concrete facts leading investigators to believe that each crime cited has been committed.
An investigator’s warrant application often includes the identities of informants, evidence about the credibility and reliability of any informant, and descriptions of any physical or documentary evidence already possessed by the investigator. As to documentary evidence, an investigator will often attach copies to the application.
Here’s what a warrant application looks like:
As to Manafort, the Washington Post reports, “The search warrant was wide-ranging and FBI agents working with special counsel Robert S. Mueller III departed the home with various records.”
Probable cause does not mean anything close to proof beyond a reasonable doubt. But it doesn’t mean mere suspicion, either. In the context of issuing a search warrant, it means that a reasonable, prudent person would find that under the totality of the circumstances, the available evidence provides a substantial basis for believing that a crime has been committed and that evidence of that crime will be found in the place to be searched.
Who, one might ask, is this reasonable and prudent person? Well, he or she is a creature who has eluded lawyers and judges since the inception of our republic, but here is a famous stab at describing this person:
He is an ideal, a standard, the embodiment of all those qualities which we demand of a good citizen…. He is one who invariably looks where he is going, and is careful to examine the immediate foreground before he executes a leap or a bound; who neither stargazes, nor is lost in meditation when approaching trapdoors or the margins of a dock;…who never mounts a moving omnibus and does not alight from any car while the train is in motion…and will inform himself of the history and habits of a dog before administering a caress;…who never drives his ball until those in front of him have definitely vacated the putting green which is his own objective . . .
So the question for the judge who signed off on the Manafort search warrant was whether the kind of person who would never alight from a moving train or pet a rabid dog or tee off with somebody still on the fairway ahead would think, when looking at all the available facts, that Paul Manafort’s home contained evidence of a specific crime being investigated by Special Counsel Robert Mueller as part of his Trump-Russia collusion probe.
A judge said yes. Let that sink in.
What it means
First, Trump supporters and apologists must stop saying that there is no evidence of any crime as to the relationship between the Trump Campaign and Russia. In point of fact, there would not even have been an FBI investigation into the matter without credible evidence of criminality.
Second, by the time we get to grand juries, warrants, and raids, there’s not just some evidence; there’s something approaching a critical mass of evidence that begins a frenetic, explosive chain reaction. In other words, this could very soon get out of control for Team Trump.
Paul Manafort is in a lot of trouble, and so is his former boss.
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