The New York Times reports tonight that search warrants were used for the first time in a Special Counsel’s investigation: Not in Watergate, not in Iran-Contra, not in Whitewater, not in the Valerie Plame investigations. With a Picked Lock and a Threatened Indictment, Mueller’s Inquiry Sets a Tone by Sharon Lafraniere, Matt Apuzzo & Adam Goldman. The others didn’t because they used grand jury subpoenas, and, in Kenneth Starr’s case, he blatantly violated F.R.Crim.P. 6 by putting the grand jury transcripts online. They could have used search warrants if they had probable cause. Why use grand jury subpoenas that take so long? In Whitewater, they had all the records. There was nothing to get a search warrant for. Apparently in none of the others, either.
“They seem to be pursuing this more aggressively, taking a much harder line, than you’d expect to see in a typical white collar case,” said Jimmy Gurulé, a Notre Dame law professor and former federal prosecutor. “This is more consistent with how you’d go after an organized crime syndicate.”
White collar lawyers who haven’t been in the crucible of the search warrant process ripping their client’s house or office apart may be clueless. But they all cut their teeth in USAOs around the country, didn’t they? Welcome to reality, gentlemen (Trump wouldn’t use a female lawyer would he? He certainly can fire them for insufficient loyalty to him, not the law. [Exhibit A: Sally Yates])
With FISA wiretap warrants revealed already on Manafort, it’s not a stretch at all to go to search warrants for evidence from Manafort. In fact, it’s natural and logical. And remember the two week long ad nauseam talking point that this was all a “nothing burger”? Haven’t heard that in a while. I learned the hard way not go public and trust what clients tell you until you corroborate something. And then don’t do it. Who’s advising these people? The lawyers need to shut the flacks up. And the lawyers need to stop being flacks. You know who you are, but you won’t read this anyway.
Next: Facebook warrants. On MSNBC tonight, Rachel Maddow thought it significant that Facebook got search warrants, too. Not at all. There’s plenty of probable cause, and anybody reading this blog even occasionally seek the Facebook search warrant litigation. Facebook has been insisting on search warrants and questioning probable cause for records for a long time. After all, search warrants aren’t that hard to get. In my estimation, probable cause is probably about 25-30% of guilt where proof beyond a reasonable doubt is about 85% in federal court and 90% in my state court. Add in the good faith exception, and probable cause drops to about 15%, about the same as reasonable suspicion. You want conservatives on the Supreme Court and you get Gates and Leon and every other good faith exception case. What goes around …
On another note, as Lawrence O’Donnell put it about 20 minutes ago: “Two of [Trump’s] lawyers showed their fundamental incompetence” by talking about their case in an open restaurant with a New York Times reporter sitting nearby who just happened to be there, too, and he made notes and took their picture. NYTimes: Trump Lawyers Clash Over How Much to Cooperate With Russia Inquiry by Peter Baker & Kenneth P. Vogel. Then they denied it when confronted by their gross and obvious breach of confidentiality. And then be lawyers as liars. Shameful lawyer conduct.
"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
—Williams
v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold,
J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence." —Mapp
v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry
v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
property."
—Entick
v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
Amendment."
—United
States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman
v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona
v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz
v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United
States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United
States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want / But if you try sometimes / You just might find / You get what you need." —Mick Jagger & Keith Richards, Let it Bleed (album, 1969)
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration
camp]
“You know, most men would get discouraged by now. Fortunately for you, I am not most men!” ---Pepé Le Pew
"The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime." —Johnson v. United States, 333 U.S. 10, 13-14 (1948)
The book was dedicated in the first (1982) and sixth (2025) editions to Justin William Hall (1975-2025). He was three when this project started in 1978.
