It’s the age-old question, do the ends justify the means? Is it ok to do something immoral or illegal in order to obtain a good outcome? The question has been debated by ethicists and philosophers since before the time of Aristotle. While the debate rages on in academic circles, the US Constitution provides a clear answer. The constitutional answer may be found in the Bill of Rights, in the Fourth Amendment, which states,
“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.”
In the Manafort case, the key is to be found in the last section of the Right which concerns the place to be search and the persons or things to be seized. In the pre-dawn raid on Manafort’s home on July 26th, the FBI searched the Alexandria, Virginia home and seized important evidence that led to this week’s indictment. However, a CNN report over the summer revealed this,
“During that raid, Mueller’s investigators took documents considered to be covered by attorney-client privilege, sources told CNN. Lawyers from the WilmerHale law firm, representing Manafort at the time, warned Mueller’s office that their search warrant didn’t allow access to attorney materials. The documents in question have now been returned, the sources say.”
If the FBI raided Manafort’s home and exceeded the limit of the search warrant, they may have violated the constitutional rights of Paul Manafort and jeopardized their own criminal case in the process.
LawNewz.com is reporting, “In 2005, Eric D. McArthur, who coincidentally now serves as Deputy Associate Attorney General at the U.S. Department of Justice, authored an article about the Fourth Amendment implications if investigators collect attorney-client privileged information. He wrote:
[T]he Fourth Amendment is violated when the government purposely, knowingly, recklessly, or negligently searches privileged attorney-client communications. In other words, the Fourth Amendment is violated whenever law enforcement officials have reason to believe that a search or seizure is likely to expose them to privileged attorney-client communications and fail to take reasonable steps to minimize their exposure.
The website points out that this is not without recent precedent. In the Bernie Madoff case, a federal judge threw out evidence gathered against Madoff through warrants because the search went beyond the scope of the warrants. In the Manafort case, it may depend upon the intentions of those who searched the house. According to some constitutional scholars, if the investigators searching the home accidentally gathered attorney-client privileged documents, they may not have violated Manafort’s constitutional rights. If, on the other hand, Manafort’s attorneys can show that the privileged documents were seized negligently and in clear violation of the warrant, the Mueller investigation of Manafort may be in peril.
As a criminal defense lawyer, we deal with these issues on a regular basis. Improperly executed warrants are a defense lawyer’s best friend. More importantly, they are a constitutional safeguard for citizens against government overreach and intrusion. The constitutional framers knew what they were doing when they included the 4th Amendment. They recognized the awesome power of government and wanted to provide a legal framework for a checks and balances. So, in the final analysis, a document written in 1791 may save Paul Manafort from conviction and prison time.