While the affidavit for the search warrant has to pinpoint a specific federal charge being investigated, once the search warrant is approved and executed should evidence of other federal crimes be found that evidence can be used to prosecute additional crimes not just the criminal behavior alluded to in the affidavit.
So when looking for classified docs in Mar-a-Lago, should FBI agents come across evidence that would support charges of obstruction of an official proceeding, or conspiracy to defraud the United States with regard to Trump’s involvement in the January 6 insurrection—charges previously indicated Trump had committed by the findings of a federal judge—that evidence would be admissible in court.
…the feds are likely to confiscate whatever documents they find in the safe, bring it back to the office after inventorying it, and then analyze it.
I’m pretty sure the SS is there to protect the person. As long as the FBI doesn’t threaten Trump’s safety, the SS has nothing to do.
I would also expect some co-operation between the agencies in this sort of matter.
Here’s a very current interview by The New Yorker of Andrew Weissman, former top prosecutor for Robert Mueller, and how his views have evolved since being critical of Merrick Garland last month:
He’s an excellent prosecutor and I always find what he has to say interesting and important.
HMS says the evidence cannot be used if it’s unrelated to a crime in the warrant. My quote does not make that distinction. I’m not sure which is right, but there certainly is a conflict.
To know whether a document is relevant to the warrant, you have to look at it and make a determination of whether it is relevant. There’s no magical way to rule it out without having to cast your eyes on it.
But, likewise, you need to read the document in a way that is directed towards determining its relevance. If it can be summarily ruled irrelevant just by the title then you shouldn’t have kept reading and it shouldn’t form the basis for new criminal accusations.
But, again, you are allowed to make that cursory examination and if in that reasonable and appropriate examination it’s clear that there’s a criminal component - e.g. it’s a giant, unmissable picture of a naked child in a cage - it’s acceptable to proceed forward with examining the new crime (once approved by a judge to do so).
The officer will need to describe his exact methodology and thinking to judges, as the case goes forward. The precise answers on that could end up going very different directions.
The warrant limits where the cops can search and what they can seek to obtain. But police can use whatever they legitimately find - while within the scope of the approved search - as evidence of unrelated criminal activity.
The example I use in my high school government classes is that if cops get a warrant to search your bedroom, they can’t go into the garage or out back. BUT, if on the way from the front door to your bedroom they see in the middle of the living room 15 kilos of cocaine, fully-automatic weapons, and non-tax stamped cigarettes, you are SOL. “Plain sight” rule applies. But the black market panda livers in the freezer in the garage are safe.
As I said, the meaning of “legitimately find” is hugely important here. It’s straightforward in the case of a kilo of cocaine, more complicated in the case of documents.
And you probably know this, but it’s not clear from your wording, but “the cops” don’t get to decide anything. They seize what they seize, but it’s the judge who decides if they can keep it, and if it’s admissible as evidence.
Upthread I mentioned that they probably raided at night to keep a riot from starting while the FBI was still there. I was corrected (happened during the day), but if this is to be believed*, they asked him not to tweet about it until later for the same reason.
*But is it to be believed? It’s hard for me believe that Trump would agree to something this AND not simply go ahead and do it anyway. There must have been something in it for him. Did his lawyers maybe just not tell him about it until later? That’s the only thing I can think of.
Lawyers for Donald Trump mediated with the FBI, Secret Service, and the Department of Justice and struck a deal that gagged the former president from disclosing the raid at Mar-a-Lago as it was underway
Interviewer: Based on what you are saying, I assume that the Justice Department would need to convince a judge that a subpoena would not work. Is that accurate?
Weissman: That is not accurate. The decision about whether to use a subpoena or to use a search warrant is a discretionary one made by the executive. A judge doesn’t weigh in on that. A judge doesn’t say, “I am not going to issue a search warrant because you could do this by subpoena.” That is not something that a court would weigh in on. But what the court would weigh in on is the following: in order to issue a search warrant—unlike a subpoena, where you don’t need any factual predication—there has to be a determination by a judge that there is probable cause of a crime, and that the evidence of that crime will be in the location that you seek to search.
My bold.
I believe this corrects some of the discussion/speculation earlier in this thread. For a search warrant, you need probable cause of a crime.
