News of the FBI search of former President Trump’s Mar-a-Lago property caught many by surprise. Never before had law enforcement searched the home of a former president for material related to a possible crime. In a nation enduring stark political division, the responses to the search have been predictably divergent.
On the one hand, some have celebrated the latest step towards the downfall of a polarizing figure. On the other hand, some have viewed the search as the latest step in a political witch hunt. For many of us on both sides of the divide, there were questions that needed answers, and those answers lay within the search warrant and the FBI’s affidavit (which is, as of writing, still sealed).
The search of a former president’s property is a political bombshell, to be sure. But politics aside, the unsealing of the Mar-a-Lago search warrant is a huge win for the rule of law. From the warrant itself to the receipt, many Americans are, for the first time, seeing what happens when law enforcement applies for a warrant, the warrant is issued and the warrant is executed. And it’s happening on the biggest possible stage.
We hear about warrants being executed in various criminal investigations, but rarely do those outside of the justice system have an opportunity to see what a warrant looks like, let alone get a glimpse of how the warrant process actually works. The unsealing of the warrant, and the accompanying receipt, presents the public with an opportunity to learn firsthand how the Fourth Amendment’s requirements for obtaining a warrant work in the real world.
The text of the Fourth Amendment sets forth clear rules for when a court may issue a warrant: “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.”
This narrow scope was the result of the framers’ rejection of the kind of general writs of assistance then in use, which served as non-expiring (except upon death of the king) general warrants allowing customs agents to search anywhere for smuggled goods. Requirements such as specificity and probable cause are now considered fundamental for issuing warrants in legal systems that value the rule of law.
The late Lord Tom Bingham, in his 2010 book “The Rule of Law,” wrote that one of the basic principles of the rule of law is that the law must be accessible as well as intelligible, clear and predictable. American laws are certainly accessible — they can be researched online at home, work or the local library, or in person at the local law library. And thanks to our large body of case law, outcomes are fairly predictable. Unfortunately, our laws are not always clear or intelligible to citizens who do not have a legal education. This is particularly true in areas of procedural law, which take place outside of the public eye during an open investigation.
The unsealing of the Mar-a-Lago warrant demonstrates how the procedural requirements of the Fourth Amendment are applied. Each step required by the Fourth Amendment – from probable cause to specificity of places to be searched and items sought – has been addressed in a clear and intelligible manner. It bears mentioning that warrant applications can be, and sometimes are, rejected by judges when probable cause is lacking.
Courts also can, and do, bar evidence taken from locations outside of the scope of the warrant. Given the high-profile nature of the targets of this investigation and the likelihood of public scrutiny, there is added pressure to get everything right. A side benefit is that the warrant and its supporting documents become an excellent example of what it looks like when things are done right.
When we put the politics aside, we are presented with a clear view of a justice system working as it is intended to. Bearing in mind that as recently as 2018, C-SPAN found that over half of Americans could not even name a Supreme Court justice, the opportunity to peel back the curtain and glimpse the inner workings of the justice system is an important civics lesson for us all. At the end of the day, regardless of the political fallout, this instance of transparency is a huge win for the rule of law.
Eliot T. Tracz is a faculty fellow at New England Law Boston, where he teaches property and writes about issues of Constitutional Law.