Irony surrounds us, piles up like leaves in fall, barnacles on a boat, and lies told by politicians. The trick is keeping your eyes open, knowing history, seeing untruth by reference to truth. Charlie Chaplin once said, “Words are cheap.” Well they are cheaper now. Whether you like Trump or not, his Fourth Amendment rights appear to have been trampled, a tragedy for America.
The core of our Fourth Amendment is protection of individuals from government overreach for political or religious reasons, and to avert political vendettas. “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated…” The Founders were animated, agitated, and clear.
The only exception was a valid “warrant,” showing “probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” Even then, the crime had to be serious, evidence sought roe than speculative, specific.
The Founders’ concern was that everyday citizens, let alone opposition political and religious leaders, might one day face an all-powerful government, willing to persecute opponents.
If this sounds unlikely, consult history. Very specifically, they feared the “general warrant” – used against colonials by a tyrannical king, so offensive that by the mid-1800s, even the British threw it out. In a nod to America, the British then insisted on specifics and accountability.
Given the Fourth Amendment’s origins, history, and purpose, ask yourself several questions.
Did the search of citizen Trump’s home, setting aside his political aspirations and opposition status, violate what should be his “reasonable expectation of privacy?”
In view of his “reasonable expectation of privacy,” was there a less intrusive way for securing an exchange of information, document production, avoiding a show of coercive power against him?
Was this invasive search necessary, even based on crimes alleged, which focus on document handling? Was the warrant application drafted with specificity? Did it state exactly what documents were sought, where to be found, why required? Or did it authorize a “general search” – as barred by the Fourth Amendment?
Did it list what the FBI expected to find in the former First Lady’s private garments, or state why documents repeatedly offered and later seized – could not simply have been accepted?
Consider also who was to be searched – a former US president from the opposing party, a vocal political opponent (past, currently, in future), someone formerly falsely accused and vindicated, accused again and summarily impeached without regular or due process.
If you were President Biden, Attorney General Garland, or FBI Director Wray – all of whom had to know about this – would you get sign-off from a junior magistrate and open Trump critic, or take another course? In this severely divided political climate, would you not think perception?
If you believed in what you were doing, felt exigent circumstances mandated an intrusive search, why not go to three judges, make two of them Trump appointees, assure public trust not ruined?
If you were objective, why allege “exigent circumstances” requiring an immediate search, then wait two weeks to execute it? In an era of police body cams, why demand home security cameras get turned off – during the raid?
Why roar into town with 30 officers, long guns, sirens, and lights blaring? Why all the political theater, as if performing for the big screen? Why not just show up with a warrant, seek legal entry, go to specific locations, retrieve specific documents, and quietly leave?
In view of our polarized political climate, pending mid-term elections, low polls for the current president, potential second run by the former president, and undeniable history of personal attacks on this man, why appear to be unfairly targeting him – again?
Truth is, unless something wild and unimaginable results from this search, this will be remembered as one of the darkest stains on our Republic, a double tragedy for our Constitution.
First, the art of political vendetta has hit a new low, precedent likely to reappear – right? To most, this just seems more evidence one party is misusing the justice system against the other.
That said, this is new. The federal government has enormous coercive power, which can be dangerous in irresponsible hands. Lord Acton wrote, “Power corrupts, and absolute power corrupts absolutely.” Such stark action, barring something unthinkable, is Tragedy One.
Tragedy Two goes beyond national politics. It is personal. This event shakes the foundations of the Republic. If an unreasonable search and seizure can be executed on a flawed warrant, with no accountability, against a major political figure, what does the Fourth Amendment mean?
In sum, this kind of political theater is more than embarrassing. It undermines historic understanding of and fidelity to our Fourth Amendment. It undermines public trust in our government. This was not run-of-the-mill. This act is without precedent. If this can be done to a president, to whom can it not be done?
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