The FBI raid at Mar-a-Lago was an abuse of prosecutorial discretion and a violation of the Fourth Amendment. It reveals political bias. Under the Fourth Amendment, a search warrant may only be issued from a court upon the establishment of “probable cause.” Under his Article II powers as Commander-in-Chief, the former president while still in office possessed the inherent power to determine whether any document would be deemed classified or not. In light of that inherent power and his executive privilege, a cause of action alleged against him based on his movement of documents, including those said to be classified, could not pass the “probable cause” test.
Accordingly, no attorney for the Department of Justice should have sought, and no federal court should have issued, an ex parte (without advance notice to the opponent and an opportunity to be heard) warrant to search for documents at the Mar-a-Lago residence of the former president.
Under the Fourth Amendment, “probable cause” must be established based on “oath or affirmation” as to the truth of the matters supporting an allegation of criminality. The things to be searched and seized, their location and nature, must be described with particularity. Probable cause is a “reasonable belief” that a crime has occurred or is about to occur. The establishment of probable cause depends on witness statements, affidavits, and evidence.
Mere suspicion or belief is not enough to establish probable cause. Things seized based on an erroneous assertion of probable cause are not lawful for use as evidence at trial but are prohibited from serving as proof under the “fruit of the poisonous tree” doctrine. In this instance, reports suggests that FBI agents performed a roving search in which they seized all manner of documents, thus belying the notion of a targeted search consistent with the Fourth Amendment.