by Andrew C. McCarthy · August 9, 2017
Here’s the thing to bear in mind about the Washington Post’s report that Special Counsel Robert Mueller had the FBI execute a search warrant against former Trump campaign chairman Paul Manafort in late July: Prosecutors don’t do pre-dawn raids on the home of a cooperating witness.
Manafort has publicly projected cooperation. Of course, we can’t know how cooperative he has actually been. The public has been kept in the dark about what is being investigated, and Mueller and the congressional committees are doing most of their work behind closed doors.
Nevertheless, Manafort did voluntarily testify before the Senate intelligence committee on July 25. It is not a coincidence, I suspect, that the very next morning, in the pre-dawn hours, the FBI showed up at his Alexandria, Va., home with a search warrant. Notwithstanding that Manafort had reportedly been voluntarily producing documents to congressional committees that are probing Russia’s interference in the 2016 election, the FBI conducted what the Post describes as a “wide-ranging” search for documents. Apparently, the bureau seized voluminous records and other materials.
There are two possible rationales for a search warrant under the circumstances. First, the legitimate rationale: Investigators in good faith believed Manafort, who is either a subject of or witness in their investigation, was likely to destroy rather than surrender relevant evidence. Second, the brass-knuckles rationale: The prosecutor is attempting to intimidate the witness or subject — to say nothing of others who are similarly situated — into volunteering everything he may know of an incriminating nature about people the prosecutor is targeting.
In Monday’s column, I took issue with Deputy Attorney General Rod Rosenstein’s claim (in a Fox News interview on Sunday) that the Mueller investigation is not a fishing expedition. The DAG insists the probe has a finite scope related to Russia’s 2016 election meddling. I counter that there are no real limits on Mueller because (a) Rosenstein failed to follow federal regulations that require him to outline specific crimes the special counsel is authorized to investigate, and (b) the so-called Russia investigation is a counterintelligence investigation, which is really just an information-gathering exercise targeting a foreign power — meaning: Mueller could claim that anything, no matter how tangentially germane to possible explanations of Putin’s motives, is a legitimate focus of his investigation.
Now, a search warrant is issued in a criminal investigation only if a judge finds probable cause that a crime has been committed and that evidence of this crime will be found in the place to be searched. The warrant is granted on the basis of an affidavit — usually drafted by the prosecutor and sworn to by an FBI agent — which tells the court exactly what crimes the agents are investigating and describes for the court the evidence supporting the claim that there is probable cause. Moreover, if agents wish to execute a warrant before 6 a.m., they must show good cause as to why this should be permitted. Generally, the explanation involves danger that evidence will be destroyed, or that agents will be at risk, if people inside the location are awake and alert when the agents knock on the door.
A standard federal search-warrant form is available online here. Note that, in addition to a description of the location to be searched, it also requires a precise description of the evidence that the investigators expect to find in the location, based on their probable-cause showing. It also indicates whether good cause has been established to execute the warrant outside of daytime hours (i.e., before 6 a.m.).
For what crimes did the Manafort search warrant authorize agents to seize evidence?
I wonder if Deputy Attorney General Rosenstein, to whom Mueller reports, would be willing to outline for the public the crimes for which the Manafort search warrant authorized agents to seize evidence. This would go some of the way toward filling in the gap Rosenstein left by ignoring the regulation requiring a factual description of the criminal investigation he has authorized the special counsel to conduct. It would also give us some insight about whether the investigation is tightly related to Russia’s meddling in the 2016 election, as Rosenstein has intimated, or is more like a fishing expedition.
Moreover, in light of the fact that Manafort has ostensibly been cooperating with congressional committees, and that Mueller has a grand jury that would have enabled him to compel Manafort to surrender evidence by subpoena, I wonder if the Justice Department would shed some light on (a) why it was thought necessary to conduct a raid on Manafort’s home and (b) whether the special counsel and the FBI sought permission to conduct the search before 6 a.m. (i.e., in what the Post reports as the pre-dawn hours).
Finally, I wonder whether the deputy attorney general or the special counsel would inform the public whether the president of the United States is a suspect in a criminal investigation.
— Andrew C. McCarthy is a senior policy fellow at the National Review Institute and a contributing editor of National Review.