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1 year ago

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constitutional law president search and seizure

Merrick Garland on the hot seat
By Terry A. Hurlbut
Attorney General Merrick Garland has placed himself on the hot seat. None of his predecessors in office have done anything comparable (although John Mitchell, during the Nixon administration, came close!) His latest gambit now has even his boss disavowing him and other prominent Democrats barely managing a kind word. Furthermore, he has split even the Mainstream Media over his laying on of the Trump Raid.
What they’re saying about Merrick Garland
The Washington Post tried to portray Merrick Garland as a good public servant who “triggered a political firestorm.” They even said he had pledged to de-politicize the Department of Justice. That might have been impossible on its face. But the Trump Raid is only the latest in a series of overtly political actions this Attorney General has taken. The Post is silent about that, preferring instead to discuss Big Bad Trump and how Merrick Garland succumbed to pressure to Do Something! Now! Today! This instant!
Of The New Yorker’s screed, the less one says, the better. “Silence is not an option,” they say, referring to his habit of giving the typical prosecutor’s answer, “I don’t comment on pending cases,” or some other variation on that theme. Essentially The New Yorker says he has a tiger by the tail, and in career terms it’s do or die.
The Tennessean (Nashville, Tennessee) printed a column that, unlike these other pieces, takes Merrick Garland somewhat to task. Columnist Cameron Smith simply refuses to believe that Title 18 USC Section 2071 was all there was to it. No matter what Marc Elias says,
https://twitter.com/marceelias/status/1556794749377454080
a document mishandling case will not justify the Trump raid in the public’s mind. Particularly since Garland’s Democratic predecessors pursued then-Candidate Trump on a basis they knew, or should have known, was false.
The New York Post went further yesterday. If Merrick Garland doesn’t talk fast about why he laid on the Trump Raid, he just re-elected Trump.
Shameless apologists
In contrast, Jennifer Taub at Slate offers a rah-rah propaganda piece. To her, whether anything like this has ever happened before, the country needed to make it happen. One must wonder how she would feel if it happened to Hillary Clinton, or Barack Obama. Or how she might feel if it happens to Hunter Biden, or his father. This illustrates the worst part of the American political divide. On the other side, some people are such monsters that they no longer deserve the protections of the Constitution. When they say that, they say that we, who love our freedom, are the monsters.
Mark Weaver, writing in Newsweek as ex-Justice Department spokesman, is not so ready to throw caution to the winds. For one thing, he says that even to say the FBI was looking for mishandled documents was illegal. (Yesterday, CNN had quoted three “Messrs. PFWTS” with that leak. “PFWTS,” pronounced “Piff-Wits,” means Persons Familiar With The Situation.) Second, partisanship has so colored the investigation that Merrick Garland can do only one thing. To save the credibility of his office and Department, he must appoint a special prosecutor.
Sorry, Counselor Weaver, but a special prosecutor won’t serve this time. Who shall nominate him but Biden, whom Weaver admits is the least popular President in “generations”? (CNAV would say history.) What kind of Senate shall confirm him, but a 50-50 Senate with a cackling maniac casting the tie-breaking vote?
Another insight on motive
The motives of Merrick Garland appear to be legion. Mr. Weaver, for instance, reminds us that the Senate Republican Conference did Merrick Garland out of a Supreme Court seat. Or so Garland would see it, and that would give him a motive for petty revenge.
Andrew McCarthy, writing in The New York Post, doesn’t buy the Title 18 USC Section 2071 explanation. To the Marc Eliases who say this was how Garland was going to disqualify Trump from running again, McCarthy says:
I doubt that. The Justice Department well knows that the qualifications for a presidential candidate are set out in the Constitution. They may not be altered by statute, precisely because the Framers did not want the executive branch to be dominated by the legislature, as would happen if Congress could disqualify incumbent or potential presidents simply by passing a law. The Constitution’s qualifications for the presidency are minimal – one must be over 35 and a natural-born citizen. Being a felon is not a disqualification, so even crimes potentially far more serious than mishandling classified information are not a bar to seeking the presidency.
McCarthy goes on to say that the only way to disqualify a President, Vice-President, or civil officer from serving again is through impeachment. The Democrats had that chance, and blew it.
Is Merrick Garland trying to build a January 6 case?
McCarthy says the FBI were fishing for tasty ones relating to the January 6 event. That would include a showing that Donald Trump knew that the Election of 2020 was fair, “the most secure in history,” all the things the apologists for that election have said and keep saying. And in the face of what the Democrats call absolute fact, Trump tried anyway to subvert the Congress’ counting authority.
That, says McCarthy, explains other warrants targeting those closest to Trump. And it explains the raid.
But when he says that, McCarthy makes the conduct of Merrick Garland worse. We hear second-hand that a warrant exists. Apparently the agent leading the raid showed it to one of Trump’s attorneys, then took it back. They did not leave a copy. We keep hearing that “a federal judge” issued it. We don’t hear who. Two candidates exist, but for any warrants they issued, they sealed the supporting documents. So we don’t even know that any of these is the warrant.
So how do we know that Merrick Garland didn’t draw up a “warrant” on his own? And if what that agent showed to Trump’s lawyer didn’t mention the January 6 event, and since Trump turned those National Archives boxes back over to them back in January, what did they take, and why? How, in short, do we know that Merrick Garland did not simply draw up a “writ of assistance” letting the FBI seize anything and everything they might think could nail Trump?
Definition
A writ of assistance is a general search warrant that does not specify the place or object of search. In colonial days, King Charles II used them extensively. The first challenge to them came from James Otis, in the Superior Court of Massachusetts in February 1761.
The Constitution makes writs of assistance illegal and unconstitutional. The Fourth Amendment sets forth three requirements for any search or arrest warrant. They are probable cause, support by oath or affirmation, and particular description of the place and object of search.
Violations of the Constitution and of the Constitutional oath
Every civil or military officer (or military enlistee!) of the United States swears an oath to
support and defend the Constitution of the United States against all enemies, foreign and domestic.
Your editor swore that oath as a “house officer” at the Nashville Veterans’ Administration Medical Center. He swore it again when he “did the Census” in 2000.
Merrick Garland has breached the Constitution in several ways. First, given that Trump was cooperating with the National Archives, Merrick Garland did not have probable cause. Second, again, we don’t know whether any federal magistrate judge has seen anything to establish probable cause. The allegation that Bruce Reinhart, former staff counsel for Jeffrey Epstein, is that “federal judge” does not convince CNAV. (Judicial Watch seems to think a magistrate judge in southern Florida did issue a search warrant. So they have filed a motion to unseal it.)
Furthermore, if Andrew McCarthy is even half correct, that warrant (if it is one) violates the “particular description” clause. Courts routinely exclude evidence that police seize that does not appear on a warrant as an object of search. This Exclusionary Rule has defeated many a drug prosecution.
Also, as Gov. Ron DeSantis (R-Fla.) pointed out yesterday, we see from Merrick Garland inconsistent application of the law.
https://twitter.com/RonDeSantisFL/status/1556803433939755010
Finally: Rep. Scott Perry (R-Pa.-10th) reports that three FBI agents accosted him and seized his cellphone. His colleague Lauren Boebert (R-Colo.-3rd) says this happened after he filed Articles of Impeachment against Merrick Garland.
https://twitter.com/laurenboebert/status/1557129486944067590
Disclaimers
CNAV has mainly repeated various allegations, testimonials, and opinions from others. But in addition, CNAV has drawn one conclusion others have not drawn from the available evidence. Specifically, we suspect Merrick Garland did not go to a federal judge for any warrant for the Trump raid. We remind our readers of Carter Page’s experience with lacking, or at least invalid, warrants. Furthermore, Scott Perry made a serious allegation against the FBI that the FBI will have to answer. And that allegation is of behavior consistent with raiding the Trump mansion on nothing more than a “writ of assistance.”
If the Attorney General, or any official spokesperson for him, or an officer of the United States District Court for the Southern District of Florida, or anyone else who cares to claim any knowledge of this matter, wishes to dispute the allegation or any other suggestion CNAV has made, let such person(s) leave a comment(s). The comment space is always open, subject to administrative moderation to screen out obscene language, off-color images, “spam,” etc.
Furthermore, if any editorialist whom CNAV has quoted, believes CNAV has misrepresented his/her work or otherwise treated him/her unfairly, such a person may also leave a comment.
Anyone who does leave a comment, may expect some reply. But the usual aphorism applies:
If you can’t stand the heat, stay out of the kitchen!
Link to:
The article:
https://cnav.news/2022/08/10/foundation/constitution/merrick-garland-hot-seat/