Dear Mr. Former President, I couldn’t help but hear about the FBI executing a search warrant for classified documents you potentially had in your palatial home in Florida. I understand you’ve characterized the search as a “raid” — a word that conjures up the forcible entry with guns drawn at night that led to Breonna Taylor’s death. Certainly, that’s how it’s playing in the right-wing media. I have the deepest of sympathies for anyone subjected to such police violence, though I must confess to having some doubts that this is quite what happened at Mar-a-Lago.
Still, even a staid daytime search of your home by officers who kept their weapons securely holstered is an invasion of your privacy that our constitution offers explicit protections against. The Fourth Amendment is quite clear that our houses are to be protected against unreasonable searches, and that any effort by the government to do so requires a warrant based upon probable cause, supported by an oath or affirmation, and providing a specific description of what or who is to be searched and seized.
Our U.S. Supreme Court — now a full one-third composed of justices you appointed — has made a mockery of that warrant requirement, carving out exceptions on the dubious principle that surely police must be able to act swiftly in an emergency, and that the Founding Fathers would never have meant otherwise. Never mind that modern policing began in London a full 40 years after the Fourth Amendment was drafted, especially not when there are Black men to arrest!
Our U.S. Supreme Court — now a full one-third composed of justices you appointed — has made a mockery of that warrant requirement, carving out exceptions on the dubious principle that surely police must be able to act swiftly in an emergency, and that the Founding Fathers would never have meant otherwise.
But the Federal Bureau of Investigation didn’t enter your home under some sort of exigent circumstance exception, did they? They went through the process of swearing out an affidavit and obtaining a search warrant. While that affidavit is still sealed, the warrant it supported is public, and we know that it specified a search for classified documents and resulted in the recovery of a fair number of them. And while the federal government’s tendency to treat relatively innocuous documents as classified material is fairly well-known, I’m pretty sure most people would agree that nuclear weapons – rumored to be the subject of some of those documents – are a topic fairly close to our national security policy. (Though whether any of us agree with that policy choice is, obviously, a matter of personal political and ethical belief.)
“White people’s raids be different.”— Michael Harriot (@michaelharriot) August 9, 2022
- Breonna Taylor.
And whether or not any of us agrees with it, mishandling classified documents is, in fact, a federal crime. Though, my understanding is you do agree with the criminalization of mishandling classified documents. After all, you signed a law in 2018 to increase penalties for those who committed such a crime. I realize this issue resonated with you as one tied to Hillary Clinton’s misdeeds. That may well explain why you and your supporters characterize this investigation as a political attack, just as your assault on Clinton was part of your overall political strategy. Maybe it is, but if you are prosecuted under a law you supported a mere four years ago, I suspect a great many Americans will simply write it off as turnabout being fair play.
Still, it is woefully easy for police to obtain a search warrant in this country. Warrant applications are very rarely denied, and usually approved after only a few minutes of review. Our courts give tremendous deference to police in the warrant-application process, which predictably results in considerable racial disparity in the choice to seek warrants and in their enforcement. The system is fast, loose, and woefully unjust.
But I understand that the warrant to search your estate was the subject of significantly more care. Both Attorney General Merrick Garland (a highly respected former federal judge who was once nominated to the Supreme Court) and FBI director Christopher A. Wray (who you appointed) reviewed and approved the search based on this warrant. This was no ordinary warrant application.
Your supporters have called for the Department of Justice (DOJ) to unseal the warrant against you, and I must agree, just as the attorney general has. There is no further risk you might discover that you are under investigation, after all, so there is no way in which the public interest could be served by keeping this warrant secret.
And I understand Garland’s request to reveal the inventory of property taken from your home because it’s politically expedient to refute your claims that the search was unjustified. But I must disagree with that request, as damning as it is likely to be, as I support the right of all people to be tried by an impartial jury of their peers: And the revelation of the items removed from your home will surely be the subject of national media attention, prejudicing any possible jury pool. This includes people like you, who have attempted to subvert the U.S. Constitution, as you did by inciting the deadly Jan. 6 insurrection.
Unfortunately, if you do face an impartial jury, I have my suspicions that any reasonable, unbiased jury would convict a person who improperly absconded with classified nuclear weapons documentation. That sort of crime is punishable by up to five years in federal prison. If the DOJ chooses to overzealously enforce that by charging you with such a crime for each document you mishandled, you might never see the outside of a jail cell again.
I don’t believe in that sort of incarceration, and I’ve advocated at length for the abolition of prisons and police. I’m glad to see your supporters now call for the abolition of the FBI, the institution responsible for the surveillance and blackmail of Dr. Martin Luther King, Jr., orchestrating the raid that killed Fred Hampton, persecuting Angela Y. Davis, and supplying the explosives Philadelphia police used to bomb the MOVE organization in 1985.
But I also don’t believe you represent some special exception that we should prioritize in the fight to end mass incarceration. You already have access to the easy mode of American criminal justice: that of a wealthy, White man. And you receive plenty of special protections as a former president, to boot. Black and Brown people never receive such deferential treatment in criminal “justice.” When we release the roughly 135,000 people of color serving life sentences, we should let you out, too. I wholeheartedly wish you live to see such a day.
Professor Brandon Hasbrouck, Esq.
Brandon Hasbrouck is a Washington and Lee University School of Law assistant professor who researches and teaches in the areas of criminal law, criminal procedure, movement law, and abolition.