Four Good Reasons Mueller Mounted a Pre-Dawn Raid on Manafort – Newsweek

This article first appeared on the Just Security site.

On Wednesday news broke that at the end of last month, FBI agents searched one of Paul Manaforts homes for documents as part of the Russia collusion investigation, directed by special counsel Robert Mueller.

What is the significance of this news? And why didnt Mueller just obtain the documents by grand jury subpoena?

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Muellers use of a search warrant tells us that he was able to establish on the basis of evidence, and to the satisfaction of a United States Magistrate-Judge, that there was probable cause to believe that evidence of a specific crime or crimes existed in the location to be searched.

That standard is significantly higher than what is required to obtain a grand jury subpoena, which can be used to obtain any evidence that a grand jury (under the direction of a prosecutor) decides will be helpful to their investigation.

Muellers resort to a search warrant shows, therefore, that his investigation has advanced, has identified specific potential crimes, and is zeroing in on key evidence.

Paul Manafort, Donald Trump's former campaign chairman and chief strategist, leaves the Four Seasons Hotel after a meeting with Trump and Republican donors, June 9, 2016 in New York City. Drew Angerer/Getty

Since it was Manaforts house that was searched, it is likely that he is implicated in the crimes, but that is not necessarily the case.

Further, it should be clear that just because Mueller has now reached this stage in the investigation, it does not necessarily mean that Manafort or anybody else will be ultimately charged with crimes.

Now why did Mueller use a search warrant instead of a subpoena, particularly since Manaforts attorney says that they have been cooperating with the investigation all along?

I can think of four possible reasons for Muellers move (none of which are mutually exclusive).

First, Mueller and his staff may have decided that, despite the claims of cooperation from Manaforts lawyer, Manafort could not be trusted to provide all of the documents requested by subpoena.

If Muellers team thought that there was any risk that Manafort would hide or destroy documents, that would be a strong reason to proceed with a search warrant.

Second, there may have been a need to move quickly. If Mueller used a grand jury subpoena, he would have had to give Manafort a reasonable amount of time to comply, and that time might have been further prolonged if Manaforts lawyer challenged any aspect of the subpoena.

Mueller may have needed the documents quickly in order to identify other lines of inquiry or for purposes of witness interviews, and so may have decided that using a search warrant would be more expeditious.

Third, Mueller may have wanted to avoid any Fifth amendment objections to a grand jury subpoena.

Although recipients of grand jury subpoenas demanding documents ordinarily cannot resist on self-incrimination grounds, because the documents requested were not themselves compelled and therefore do not fall within the privilege, there are narrow situations when witnesses can claim that because the government is engaged in a fishing expedition, compliance with the subpoena requires a testimonial act by the witness which could be self-incriminating. (I wrote about this possibility here in detail in connection with Congressional subpoenas to Michael Flynn.)

While a search warrant does not simply permit a fishing expedition, as the government must describe with some particularity the documents it is seeking, it nonetheless forecloses the Fifth amendment objection that Manaforts lawyer might have mounted in response to a subpoena.

Finally, Muellers move may have been in part strategic. He may have wanted to get Manaforts attention to emphasize the seriousness and advancing nature of the investigation, all with the hope of securing his cooperation.

A predawn search by FBI agents of Manaforts house could achieve this objective in a way that a grand jury subpoena just couldnt. And if Mueller was hoping to send a message, it is one that will likely be received by others in addition to Manafort.

If it was not clear already, it should now be plain that Mueller will use all the investigative tools at his disposal to fulfill the task that he has been assigned.

Alex Whiting served for ten years as a federal prosecutor at the Department of Justice and the U.S. Attorney's office in Boston, and eight years as an international criminal prosecutor at the International Criminal Tribunal for the former Yugoslavia and the International Criminal Court in The Hague.