This question/comment was made by a senior economist employed by a major economic policy center:
Seems if we had an attorney general who respected the law, he would send the FBI to ALL of Trump’s residences and tear them apart to look for every damn missing document, just like would happen with a drug lord. What happened to no one being above the law?
Yeah, that’s not gonna happen. And it shouldn’t–not to Trump, not to a drug lord. It’s not gonna happen because we DO have an Attorney General who respects the law. It’s not gonna happen because it’s fucking illegal.
I’ve heard similar questions/comments by other folks. Some of those folks are boneheads, some are smart folks, educated folks, folks who follow the news. I blame television. On television, all a detective has to do is say to some flunky, “I know in my gut that this guy did the crime. I just need to find the evidence. Get me a warrant to search his house!” and hey bingo, the detective gets a warrant.
That just ain’t how it works. Law enforcement–and I’m talking about everybody from the FBI down to officers from your local Mayberry police department–can’t just act on a hunch or a gut feeling. This is pretty basic stuff, and it’s right out of the 4th Amendment of the US Constitution.
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.
No warrants shall issue. What the hell is a warrant, anyway? The term comes from the Old French ‘garant‘ out of the Frankish ‘warand‘ meaning ‘pledge.’ It’s also the root term for ‘guarantee’ and ‘guard’ and ‘warden’. It means a pledge or guarantee that the information written down has been attested or given under oath.
If the State wants to search a place, they first have to swear an oath that they’ve got a legit reason to do that. There’s a process to this search warrant business, and that process always, without fail, begins with the question, Hey, did somebody break the law here? Is it illegal for Comrade Ex-President Donald J. Trump to stuff classified documents down his pants and take them to Trump Tower or one of his many golf resorts? The answer, of course, is yep. Totally illegal. But you have to be specific; you have to be able to point to an actual criminal statute and be able to say to a judge, “That law right here, that’s the law we believe Trump broke IF he walked away with those documents.“
Step two is another question: Did Trump do that? Did he stuff documents down his pants and walk away? This is where shit gets complicated. Obviously, you can’t prove Trump did that without evidence and you can’t get the evidence to show he did that without searching for it. But you can’t search for it until you can convince a judge that (okay, here’s some legal-sounding language) you have sufficient credible information to establish that Trump probably did that.
The judge will expect you to lay out what that information is, how you got that information, why you believe the information is credible, and your qualifications to justify your belief in the credibility of that information. So you tell the judge, “The Archives reports that Trump was supposed to give them all his shit after he left office, but there’s shit they KNOW exists and they don’t have it, so probably Trump does. The Archives haven’t ever lied to us before and we’re seriously experienced and skeptical FBI agents, and we trust them, so there.”
So yeah, you’ve shown that a crime was probably committed and Trump probably committed it. Now comes Step three: finding the damned evidence. Now you have to convince a judge that you’ve got good reason to believe the evidence of that specific crime exists and can be found in these specific locations. In the Mar-a-Lago search, the FBI told the judge, “We got us some witnesses who saw Comrade Donald J. Trump stuff like TWO truckloads of boxes labeled Classified Shit down his pants at the White House, and witnesses who saw those same boxes unloaded from his pants at Mar-a-Lago, and we’ve even got witnesses who saw those boxes in Trump’s basement and in his goddamned office, if you can believe it, where all sorts of loopy people go wandering through.”
The FBI had all that for Mar-a-Lago. So they were able to convince a judge to issue a search warrant and do the search. They apparently don’t have everything they need to get a warrant for Trump Tower or any of Trump’s other golf resorts. Not yet. But we know they’re talking to folks with information about those locations. So they’re working on it.
Why is this search and seizure business so complicated? To protect innocent people. To keep the agents of the State from wandering through anybody’s home or place of business on the off chance that maybe they’ll find something illegal. It’s to stop them from just walking into YOUR home or your office, opening YOUR drawers, snooping through YOUR closets, rummaging around in YOUR kitchen, or trolling through YOUR private stuff on YOUR computer.
The irony, of course, is that if Comrade Trump were ever to have power again, that sleazy motherfucker absolutely WOULD want to be able to do that.