Judge's order exposes FBI sloppiness, excessive evidence collection at Trump home

Court also acknowledges Joe Biden helped initiate criminal probe of his chief Republican rival, alarming many.

Published: September 6, 2022 6:55pm

Updated: September 6, 2022 11:03pm

​A criminal probe "requested by the incumbent president." The seizure of clothing, medical records, tax records and 500 pages of attorney-client privileged documents not covered by a warrant. The sharing of privileged documents with investigators.

More than simply appointing a special master to referee an evidence dispute, U.S. District Judge Aileen Cannon exposed this week a Justice Department search of former President Donald Trump's home that was initiated by his chief Democrat rival, that was carried out so sloppily that it violated the "least intrusive" mandate in the FBI agent's manual, and that failed to keep legally-protected materials from falling into the hands of investigators.

The problems uncovered so far placed Trump "at risk of suffering injury from the Government's retention and potential use of privileged materials," Cannon wrote, adding that a future indictment of the ex-president based on the Aug. 8 search of Mar-a-Lago "would result in reputational harm of a decidedly different order of magnitude."

In other words, Cannon was not convinced by the Justice Department's argument that its honor system — known as "filter" or "taint" teams — was adequate to protect the 45th president's constitutional rights. "The Court takes a different view on this record," she wrote.

Cannon's Labor Day ruling is simply an opening salvo. Whether Trump's claims of executive privilege, attorney-client privilege or an unconstitutional, overly broad search prevail will be decided some time in the future.

But one thing is clear. The FBI and its overseers at the Biden Justice Department bumbled on what was certain to be one of the most scrutinized search warrant executions in modern American history. And that's according to one of the bureau's own former and highly respected executives.

"The more that's revealed, the more it looks like a kind of sloppy government overreach is in play," former Assistant FBI Director of Intelligence Kevin Brock told Just the News. "It seems more than a bit 'loose' to those of us who have executed numerous search warrants."

Jonathan Turley, a George Washington University law professor and avowed Democrat, said the judge's ruling cited the sort of FBI failures that in the past would have enraged liberals who have gone silent about such concerns in the Trump era.

"Many faculty on the left continue the curious objections to a court seeking review of the FBI or not accepting its overbroad claims of authority," Turley wrote Tuesday. "It is a bizarre shift that we have seen in other Trump investigations where liberals suddenly express shock that a court would override sweeping national security claims or seek to review the Justice Department's review of material for privilege.

Turley noted that there "appears to have been mistakes by the taint team and that privileged material (as well as an assortment of private material from medical records to tax records) were seized."

To appreciate the concerns of experts like Brock and Turley, one need only scan the Domestic Investigations and Operations Guide, or DIOG, the documents most FBI agents regard as their on-the-job bible.

The investigative manual requires FBI agents to use the "least intrusive" means of gathering evidence, especially when it comes to "sensitive investigative matters" like a probe of a former president where privileges and First Amendment are front and center.

That means framing a search in the narrowest possible terms to avoid communications protected by the Fourth Amendment of the Constitution. "Rigorous obedience to constitutional principles ensures that individually and institutionally our adherence to constitutional guarantees is more important than the outcome of any single interview, search for evidence, or investigation," the manual states.

But Cannon's ruling exposed significant failures of the FBI agents at Mar-a-Lago to adhere to strict rules governing collection of evidence. For instance, more than 500 pages of documents protected by attorney-client privilege were collected, along with personal medical and tax records and even an article of clothing.

Such overcollection, Brock told the "Just the News, Not Noise" television show, is completely uncharacteristic for FBI agents who are trained to avoid such mistakes, suggesting the former president got worse treatment than a drug dealer or gang member,

"I don't care if it was a drug trafficker, or a child exploiter, or whatever, you go into a home, you set up a system where those things that you seize are assiduously documented," said Brock, who oversaw numerous search warrants in his three decade FBI career. "They're given a specific tracking number, barcodes, if you will, and each piece is gone through meticulously before you leave the premises to make sure that it's within the scope of the document."

The fact that did not happen raises the danger that the judge may eventually throw out the entire search, both because it was overly broad to begin with and then overcollected evidence outside the scope authorized by the magistrate, Brock said.

"If I'm a prosecutor, I am concerned going forward that this search warrant could be suppressed for those types of reasons, and they would lose access to anything that was collected throughout the search as a fruit of the poisonous tree," he said.

The judge also revealed that the DOJ's taint or filter teams failed to keep two pieces of protected, privileged documents from reaching frontline investigators. And even after the mistake was discovered, no efforts were made to wall off the evidence, she added.

"Perhaps most concerning, the Filter Review Team's Report does not indicate that any steps were taken after these instances of exposure to wall off the two tainted members of the Investigation Team," she wrote.

Cannon also acknowledged one other fact, citing government documents she saw, that troubled experts across the board: The criminal probe began with the National Archives "providing the FBI access to the records in question, as requested by the incumbent President." In other words, as Just the News reported last week, Biden gave an instruction that was the ignition for a criminal probe of his rival.

Rep. Austin Scott (R-Ga.) said the judge's revelation about Biden smacks of hypocrisy for Democrats after all their efforts to suggest Trump meddled with DOJ or Ukraine investigations when he was president. And, he added, it raises questions about Biden's denials of any involvement in the probe.

"All of the things that they accuse President Trump of doing, they're actually doing," Scott told "Just the News, Not Noise." "I mean,  the hypocrisy of it just knows no bounds. … If the judge is saying this stuff, then Biden has obviously been lying. That's the bottom line."

Brock said the judge's acknowledgment of Biden's role in prompting the start of the FBI probe will only add to public concern.

"That's a major escalation, obviously," he said. "It jumped out to me as well. It said at the request of the incumbent president. Now, that's not going to calm anybody's concerns that there weren't political motivations lurking behind all of these actions."

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