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Why a search warrant was needed


Chotiner has a non-give-’em-enough-rope interview with a federal prosecutor that is illuminating:

What’s your biggest takeaway from Monday’s events?

The usual way to get documents from somebody you trust is to give them a subpoena. Almost any time that the government is trying to get documents from a corporation, they do it by issuing a subpoena, or even by informal request. With any normal civilian, you will issue a subpoena and the person will collect the documents and produce them.

You use a search warrant, and not a subpoena, when you don’t believe that the person is actually going to comply. For me, the biggest takeaway is that the Attorney General of the United States had to make the determination that it was appropriate in this situation to proceed by search warrant because they could not be confident that the former President of the United States would comply with a grand-jury subpoena.

When you say he wouldn’t comply, do you mean that he wouldn’t recognize the relevant legal authority? He would destroy documents? Both?

It could be both. But one way would simply be to lie and say that you produced everything. Another would be to assert the Fifth Amendment’s “act of production” privilege. That might be the most benign. It’s a part of the Fifth Amendment that says you don’t have to produce documents in your possession if the act of producing them would be incriminating. So, for instance, there is a lot of speculation that this is about whether the former President has classified documents in his possession that he should not have. If he produced those pursuant to a subpoena, that would be incriminating himself, because it would show that he had them and knew where they were. The search warrant avoids all that. The F.B.I. just takes the documents, not asking the recipient to do anything.

If you know anything about the history of Trump, the idea that he would comply voluntarily with a subpoena is absurd.

Also interesting:

You wrote an Opinion piece for the Times last month, which was critical of how you believed the Department of Justice was going about the January 6th investigation. A lot has happened since then. Do you still feel that way?

It is great that a lot has happened since then. When I wrote that, I hoped that I was wrong. Up to that point, I had not really seen a lot of evidence of a robust investigation. My argument was that the January 6th committee was investigating this by looking at what Donald Trump and the White House were trying to accomplish in all of its facets, holistically, and not just what happened on January 6th itself—all of the ways in which this scheme was possibly perpetrated, whether it was influencing state electors or pressuring the Vice-President, or corrupting the Department of Justice by putting in flunkies who would falsely say that there was fraud. My hope was that you would look at all of that as a piece and investigate all of that as one overarching conspiracy. That was what the committee was doing, but it was unclear to me whether that was the approach that the Department of Justice was following. They seemed to have a more myopic view: just looking at what happened on January 6th and the lower-level people who stormed the Capitol, but not the White House and this grander scheme.

But you are more hopeful in terms of what you have seen since then?


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