The headline from NBC News on Dec. 12 read “Incoming New York Attorney General Plans Wide-Ranging Investigations of Trump and Family.”
American freedom is more than under siege.
The U.S. experiment with freedom was to be a stark change from the tyranny of kings. Our founders gave us basic protections. Day by day, however, one our most important protections, the Fourth Amendment, is being extinguished by out of control public officials.
The American Revolution was fought over several issues, not the least of which was taxation. At the same time, a series of abuses by the British government inflamed tensions between the colonists and Great Britain. Among those abuses were general writs: search orders that were often issued against people without probable cause.
In an effort to crack down on what the British believed were the illegal activities of colonists—the smuggling of products to avoid taxation—general writs of assistance were issued. Those writs effectively permitted British officials to investigate people, not crimes. In other words, the order permitted someone’s home to be searched without any specific evidence that that person had committed a crime.
When it came time to create our own government, our Founders fatefully agreed to stop that practice. The Fourth Amendment was the principal protection against that, and it 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.”
What is probable cause? According to the Supreme Court, it is “where the facts and circumstances within the officers’ knowledge, and of which they have reasonably trustworthy information, are sufficient in themselves to warrant a belief by a man of reasonable caution that a crime is being committed.”
It relies on known facts—not political bias.
The statement of the incoming New York attorney general that she will investigate the Trump family amounts to an intent to issue a general writ 230 years after it was outlawed. Where would she get the idea of such prosecutorial arrogance? Robert Mueller and Rod Rosenstein, to name two people.
The world knows by now that Rosenstein tasked Mueller to investigate “any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump.”
On its face, Rosenstein’s order names no crime. None. Beyond that, it orders Mueller to look for facts. It says nothing of known “facts and circumstances within the officers’ knowledge.” Of course, we also know that Rosenstein participated in the use of the never-verified Steele dossier to spy on U.S. citizens, despite his sworn statement that it could be relied upon by the court.
In practice, Mueller has taken Rosenstein’s order and investigated “individuals associated with the campaign of President Donald Trump.” He has used the full force of the government, abusively so at times, to search for facts and circumstances and to investigate people, not specific crimes.
That is how Mueller found out that Paul Manafort committed a crime totally unrelated to, and years prior to, “any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump.” Mueller did that by a general search of the man’s life, without first having specific evidence of that particular crime.
Sadly, that is America today, as it was before colonists revolted against the British.
It is true that general writs led to finding criminal activity. It is also true that they were wantonly abused by power-hungry officials, leading colonists to fear their government—and so it is again today.
We must always remember that the British government was authoritarian in large respect. We also must understand that the Fourth Amendment, in significant part, is the historical difference between dictatorships (where people fear the government) and democracies (where they choose the government).
If we descend into becoming a country that permits the government to investigate people while citing no more than vague allegations or outright political desires, we will have not only lost the Fourth Amendment, but also what distinguishes our government from the dictatorships we claim to despise.
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