All this talk of the appointment of a special master is a "red herring." Former president Donald Trump’s legal team and supporters are calling for someone else "neutral and detached" to have a look-see at the seized documents to ensure that none of the former president’s rights have been violated – like the attorney-client privilege, executive privilege or the doctor-patient privilege for that matter. What’s the difference, other than time? Let a third party look at the seized documents first. If any of the documents say "Top Secret;" if any of the documents are half-eaten by the dog; if any of the documents are marked "I sure hope nobody knows I have this" – then it won’t matter if Melania were appointed special master. The documents are what they are. What will be, will be.
The bottom line is, there was not a "Trump raid on Mar-a-Lago." A search warrant was executed on a residence which just happened to be that of a former president of the United States. Nowhere in the law is there a carve-out permitting a former president of the United States to avoid his residence being the subject of a search warrant. And the truth is, a search warrant, by its very nature, is a check on the power of the government to violate our rights as United States citizens to be free from unwarranted government intrusion into our personal space.
Don’t take my word for it. A search warrant finds its roots in our Constitution. The Fourth Amendment exists to protect us from unlawful government searches and seizures. In fact, it is presumed that any search and seizure by the government without a warrant is unlawful. The Fourth Amendment reads: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and 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."
That is why a judge, or a magistrate must first sign the search warrant. And before that judge or magistrate signs the search warrant, that judge or magistrate – who is "neutral and detached," must be satisfied that law enforcement has provided first-hand proof that it is more likely than not that evidence of illegality will be found in the place to be searched – what we call "probable cause."
That’s right – the search warrant actually protected the former president of the United States by ensuring that a neutral and detached judge first determined that it was more likely than not that evidence of illegality would be found at Mar-a-Lago before law enforcement could search the premises.
Which now brings us to question of "sealing" or "unsealing" the affidavit of law enforcement in support of the search warrant application. Typically, these affidavits are kept secret, and for obvious reasons. Laws cannot effectively be enforced if the government cannot put its cases together in secrecy. Witnesses would not come forward or could be tampered with; evidence could be secreted or destroyed. With the burden of proof always remaining with the government and the burden of proof being that of "beyond a reasonable doubt," which is a doubt so great that a jury believing that the defendant "probably did it" must lead to an acquittal – the government is given wide berth to conduct its investigation with the curtain closed.
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However, the search warrant executed on the former president’s home brings new attention to the tension between and among the public’s right to transparency when it comes to our system of justice, against the government’s right to conduct its investigations without interference or obstruction – and against a putative defendant’s right to a defense. Sure, the public’s confidence in our system of justice is fostered through being able to see directly into the system. But we expect, if not demand, that the government protect us through the enforcement of our laws. The government cannot prosecute cases, take criminals off the streets, and deter future criminal offense conduct if the government cannot effectively investigate its cases. The government often prevails in this tug-of-war. Which means we, as law-abiding citizens, are the real benefactors as we are kept safe.
Because it is a former president of the United States whose home was searched, perhaps it is in the public’s interest to know more than usual. Because it is a former president of the United States whose home was searched, perhaps it is in the public’s interest for the curtain to be pulled back a bit. And perhaps it is this former president of the United States in particular – with his unique skills in polarization – who warrants (pun intended) the government being transparent in ways that this former president has heretofore successfully himself obscured.
But make no mistake – the search was warranted; all this talk of a special master is a distraction and the documents found at the former president’s residence are what they are. What will be will be.
