Month: August 2022

The FBI told a federal magistrate judge that it intended to open hundreds of safe deposit boxes seized during a March 2021 raid in order to inventory the items inside—but new evidence shows that federal agents were plotting all along to use the operation as an opportunity to forfeit cash and other valuables.

Federal agents failed to disclose those plans to the federal magistrate judge who issued the warrant for the high-profile raid of U.S. Private Vaults, a private business in Beverly Hills, California, that had been the subject of an FBI investigation since at least 2019. When the raid took place, the FBI also seems to have ignored limitations imposed by the warrant, including an explicit prohibition against using the safe deposit boxes as the basis for further criminal investigations.

Those details regarding the planning and execution of the FBI’s raid of U.S. Private Vaults are now out in the open after a different federal judge ruled this week that the government could not keep those details out of the public record. As Reason has extensively reported, the raid on U.S. Private Vaults resulted in federal agents seizing and attempting to forfeit more than $86 million in cash as well as gold, jewelry, and other valuables from property owners who were suspected of no crimes. Attorneys representing some plaintiffs who are trying to recover their possessions interviewed the FBI agents who planned the raid, but federal prosecutors tried to keep some details of those depositions redacted.

The unredacted legal documents, filed in federal court on Thursday, show why the government was eager to keep those details under wraps. (Reason filed an amicus brief in the case arguing that the redacted documents should be made public.)

In the affidavit submitted as part of the effort to obtain a warrant for the search, Assistant U.S. Attorney Andrew Brown wrote that federal agents intended to merely inventory the contents of the seized safe deposit boxes. But the newly unredacted documents show that the FBI had drawn up plans months earlier to forfeit property from the boxes, and failed to inform the magistrate judge about those plans.

“We had already determined that there was probable cause to move forward” with civil forfeiture proceedings against the contents of the safe deposit boxes before the search occurred, FBI Special Agent Jessie Murray said in a deposition, according to court documents.

Those crucial details were omitted from the affidavit submitted to the magistrate judge who granted the warrant that allowed the FBI to search U.S. Private Vaults. As Reason has previously detailed, that same warrant expressly forbade federal agents from engaging in a “criminal search or seizure of the contents of the safety [sic] deposit boxes.”

The newly unredacted documents suggest the FBI never intended to abide by that limitation. In a deposition, Special Agent Lynne Zellhart said she drew up “supplemental instructions” for the agents who would be conducting the raid of U.S. Private Vaults. They were instructed to be on the lookout for cash stored inside the safe deposit boxes and to note “anything which suggests the cash may be criminal proceeds.” Agents arranged to have drug-sniffing dogs present for the supposed inventory of the contents of the safe deposit boxes—which doesn’t do anything to help inventory items, of course, but makes more sense if the actual goal is to initiate forfeiture proceedings.

“The government misled the court about its forfeiture plans when applying for the seizure warrant, intentionally disregarded the warrant’s substantive limitations, and conducted a pretextual sham ‘inventory’ while searching for evidence of criminality,” wrote Robert Frommer and Robert Johnson, attorneys with the Institute for Justice, which is representing some of the victims of the U.S. Private Vaults raid.

In court documents, the attorneys say the government’s behavior “before, during, and after” the raid at U.S. Private Vaults is a violation of the Fourth Amendment, which protects Americans from unreasonable searches and seizures.

As Reason has previously reported, the inventories themselves were sloppily done, leaving the impression that agents were using the procedure as justification for a fishing expedition. The newly unsealed depositions seem to corroborate that view, as Zellhart’s supplemental instructions told agents to note cash that had “strong odors” or was packaged in such a way that might indicate it was connected to drug purchases.

The FBI had been investigating U.S. Private Vaults for more than five years and had previously targeted individuals suspected of using the business to stash the proceeds of criminal activity. In 2019, according to some of the newly unredacted depositions, federal agents shifted their approach and began building a case against the company as a whole.

But the raid that targeted the businesses also swept up the private property of hundreds of people suspected of no crime. In the same way that criminality by a landlord would not allow the police to search every apartment in a building the landlord owns, attorneys for the victims of the raid argue that there was no reason for the FBI to open and rifle through hundreds of safe deposit boxes belonging to people who were suspected of no crimes.

“The ‘inventory’ was a sham,” argue Frommer and Johnson in court documents. “Indeed, the whole idea of inventorying the vault was unreasonable on its face, as the best way to serve the purposes of an inventory would have been to leave the property safely locked away and appoint a receiver to wind down USPV’s business without an invasion of privacy.”

Unless, of course, that invasion of privacy was the whole point of the raid. The newly unredacted documents seem to suggest it was.

The post FBI Misled Judge in Obtaining Warrant to Seize Hundreds of Safe Deposit Boxes appeared first on Reason.com.

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U.S. Magistrate Judge Bruce Reinhart, who approved the FBI’s August 8 search of former President Donald Trump’s Palm Beach resort, yesterday indicated that he is inclined to release a redacted version of the affidavit supporting that warrant. Depending on how extensive the redactions are, that step could help answer lingering questions about the justification for the search, during which the FBI seized 11 sets of documents marked as classified. The affidavit also could clarify the viability of criminal charges against Trump or his underlings for taking and keeping those documents, along with other material that was not classified but belonged in the National Archives.

After several news organizations asked Reinhart to unseal the affidavit, the Justice Department argued that doing so would expose sensitive information and compromise the FBI’s ongoing investigation. During a hearing on the issue yesterday, Reinhart said it was “very important,” given the controversy over the FBI’s investigation, that the public see as much information as feasible. He later wrote that the government has “not met its burden of showing that the entire affidavit should remain sealed.” He asked the Justice Department to propose redactions by next Thursday.

Justice Department officials reportedly were surprised by Reinhart’s receptiveness to unsealing the affidavit, which explains why the FBI thought it had probable cause to believe the search would discover items “possessed in violation of” three federal laws. Although search warrant affidavits typically are kept under wraps until a criminal investigation is completed, Reinhart evidently thinks the issues raised by the FBI probe are important enough to depart from standard practice.

Jay Bratt, a Justice Department national security lawyer who urged Reinhart to keep the affidavit sealed, conceded that “there is heightened interest” in this case, which is putting it mildly. “This is likely an unprecedented situation,” Bratt added.

One conspicuous question raised by that situation is why the FBI thought Trump’s trove of government documents posed a national security threat grave enough to justify the unprecedented and politically explosive decision to search the home of a former president who is the leading contender to oppose the current president in the next election. We know almost nothing about the volume, contents, or precise location of the sensitive documents that the FBI seized.

Most of the documents seem to have been kept in a storage area secured by a padlock, which Trump’s staff replaced with a more tamper-resistant model at the Justice Department’s request. But The New York Times reports that the department, which subpoenaed Mar-a-Lago surveillance video, was alarmed by footage of people removing boxes from the storage room—a detail that the affidavit could clarify.

Kash Patel, who worked for the National Security Council under Trump and has represented him in negotiations with the National Archives and Records Administration (NARA), has said the documents at Mar-a-Lago were related to “national security matters” as well as “Russiagate” and “the Ukraine impeachment.” The latter two subjects suggest that Trump may have collected material he thought would help make the case that those two investigations were part of a “deep state” conspiracy against him. Tim Weiner, a former national security reporter for the Times, notes that Patel “was one of the Trump appointees who led the attempt to uncover the secrets of the ‘deep state’ that consumed the president during his last year in power.”

Trump reportedly insisted that the records he retained after leaving office belonged to him. “It’s not theirs; it’s mine,” he said, according to “several” unnamed “advisers” cited by the Times. As Weiner notes, Richard Nixon took the same position regarding White House records, which prompted Congress to pass the Presidential Records Act in 1978. Under that law, “the United States shall reserve and retain complete ownership, possession, and control of Presidential records.” Except for Trump, Weiner says, every president since Nixon has complied with that statute.

The Presidential Records Act does not prescribe penalties for violating it. But 18 USC 2071, one of the laws cited in the Mar-a-Lago warrant, makes it a felony, punishable by up to three years in prison, to conceal, remove, or destroy a U.S. government document. To obtain a conviction, the government has to prove the defendant did that “willfully,” and the search warrant affidavit likely includes evidence supporting that element. In particular, the affidavit probably describes in detail the government’s efforts to recover the purloined documents and Trump’s resistance to those efforts.

In January, Trump’s representatives turned over 15 boxes of documents to NARA, which noticed that some were marked as classified. That prompted an investigation by the Justice Department, which obtained additional documents under a grand jury subpoena in June. Around the same time, The New York Times reports, “a Trump lawyer” gave the Justice Department “a written declaration” saying “all the material marked classified in the boxes had been turned over.”

According to the search warrant inventory, which was unsealed last week along with the warrant itself, that was not true. The FBI found documents with markings ranging from “confidential” to “top secret.” The top-secret documents included some labeled “SCI,” or “sensitive compartmented information,” an especially restricted category.

Contrary to those labels, Trump insists, the documents cited by the FBI were not actually classified. He says he had “a standing order” as president that automatically declassified anything he happened to remove from the Oval Office. John Bolton, who served as Trump’s national security adviser for 17 months in 2018 and 2019, thinks that is “almost certainly a lie.” Bolton told the Times he had never heard of Trump’s purported decree. Glenn Gerstell, who served as general counsel for the National Security Agency from 2015 to 2020, likewise told FactCheck.org he “was not aware” of any such policy, which would have been a haphazard and confusing approach to classified material.

Even if Trump declassified all the documents at Mar-a-Lago when he still had the authority to do so, that would not matter under 18 USC 2071, which applies to government records generally. Even 18 USC 793, the Espionage Act provision that was also cited in the warrant, does not mention classification, instead referring to “defense information.”

Under that law, someone who “willfully retains” defense information that he “has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation” is guilty of a felony punishable by up to 10 years in prison. The same penalties apply to someone who “through gross negligence” allows defense information “to be removed from its proper place of custody” or who fails to report such removal.

According to a search warrant cover sheet that Reinhart unsealed yesterday, the FBI is investigating “willful retention of national defense information.” If Trump repeatedly rebuffed attempts to recover defense-related documents, that could support such a charge, whether or not he actually issued the “standing order” that he describes. The search warrant affidavit could illuminate that issue.

The same goes for the third law mentioned in the warrant: 18 USC 1519, which makes it a felony, punishable by up to 20 years in prison, to conceal “any record, document, or tangible object” with the intent to “impede, obstruct, or influence” a federal investigation. While proving such an intent is no easy matter, the same pattern of behavior that could support charges under the other two statutes might support the inference that Trump deliberately tried to obstruct the investigation prompted by his document grab.

Given all the ways that the affidavit could flesh out the case for prosecuting Trump, his avowed eagerness to see “the immediate release of the completely unredacted affidavit” is rather puzzling. Trump surely is curious about the identities of the “witnesses interviewed by the government” that the Justice Department mentions in its brief arguing that the affidavit should not be unsealed. Since the warrant hinged on the expectation that unlawfully removed documents remained at Mar-a-Lago, those sources probably included insiders who had seen them there recently. But the names of those informants are bound to be redacted if the affidavit is unsealed, since the Justice Department warns that “the revelation of witness identities would impact their willingness to cooperate with the investigation” and deter other potential witnesses.

Trump’s insistence on “TRANSPARENCY” may be nothing more than a tactical ruse. Although he could have shared the search warrant and inventory even before Reinhart unsealed them, he chose not to do so, “ENCOURAGING the immediate release of those documents” only after the Justice Department asked Reinhart to approve it. And despite Trump’s demand for “the immediate release of the completely unredacted affidavit,” his lawyers notably did not participate in yesterday’s hearing, where their support for disclosure would have carried considerable weight.

Then again, the contrast between Trump’s statements regarding transparency and his actions may reflect a conflict between his impulses and his lawyers’ advice. It would not be the first time that Trump’s impetuosity clashed with his attorneys’ caution.

There are sound reasons why Trump’s legal advisers might be less keen on “TRANSPARENCY” than he is. It is hard to see how a one-sided narrative laying out the evidence that Trump broke the law would help his case.

Even that narrative may be obscured by the expurgation that the Justice Department recommends. As the Times notes, Reinhart “acknowledged that the redaction process could often be extensive and sometimes turned documents into ‘meaningless gibberish.'”

The post If We See an Expurgated Version of the Mar-a-Lago Search Warrant Affidavit, What Will It Tell Us? appeared first on Reason.com.

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When Gov. Ron DeSantis signed the Individual Freedom Act (a.k.a. the “Stop WOKE Act”) in April, he made it absolutely clear that his intent was to censor private speech.

“In Florida, we will not let the far-left woke agenda take over our schools and workplaces. There is no place for indoctrination or discrimination in Florida,” he said.

On Thursday, Chief U.S. District Judge Mark E. Walker of the U.S. District Court of the Northern District of Florida, Tallahassee Division, spent 44 pages of a decision patiently explaining that using government force to ban discussions of issues DeSantis doesn’t like is blatantly unconstitutional and ordered the state not to enforce the law.

The Individual Freedom Act (IFA) bans both schools and businesses from teaching or training students or employees a list of eight controversial ideas the law’s proponents associate with critical race theory. They include controversial concepts like the belief that people of a certain race are inherently racist or sexist (consciously or unconsciously), that people of a certain race are responsible for the racist behavior of their ancestors, or that certain values (like belief in excellence, hard work, or fairness) are racist in origin or used to oppress other races.

We can debate whether these are good or bad ideas. What’s not debatable is whether the state of Florida has the legal power to stop private employers from teaching these ideas. It does not, and by implementing the IFA, Walker notes that this part of the act “is a naked viewpoint-based regulation on speech that does not pass strict scrutiny” and cannot be enforced.

The state was sued by two employers (Honeyfund and Primo) who want to mandate training to employees that might violate this law and consulting firms (Orrin and Whitespace Consulting) who provide such training. They fear potential state investigations and lost business as a result of the IFA. Walker agreed that this gave the businesses standing to sue to attempt to block the law’s enforcement.

Walker quickly punctures Florida’s defense of the law by pointing out how it is clearly an attempt to censor one side of the debate but not the other:

Because the IFA covers any required activity, an employer could require every employee to read Woke, Inc., Inside Corporate America’s Social Justice Scam but could not require employees to read The Color of Law. Worse still, a nonprofit corporation devoted to promoting the idea that white privilege exists could not hold a required meeting at which it endorses the concept of white privilege. But a nonprofit holding the opposite view could freely hold meetings criticizing the concept of white privilege.

The speech orientation of the law is clearly not neutral: It censors only one position on the controversy based on its viewpoint. Walker further rejects the state’s attempt to say that the act aims to regulate conduct, not speech. (This argument may be familiar to libertarians, who have seen states use it to try to unduly control who is and is not allowed to give advice.) Walker notes that laws against racist conduct at the workplace can be identified separately from speech. But IFA can only be understood through the lens of what is and is not said. It is entirely a regulation of speech, not conduct.

Walker then subjects the law to strict scrutiny, requiring the state to prove that it has a compelling interest to justify engaging in such censorship. To put it mildly, constitutional law is not on the state’s side here.

“The First Amendment does not give the state license to censor speech because it finds it ‘repugnant,’ no matter how captive the audience,” Walker writes. “And even assuming the IFA serves a compelling government interest—like prohibiting discrimination—it is not narrowly tailored. In large part, this is because the [Florida Civil Rights Act of 1992] already prohibited much of what Defendants claim the IFA aims to prohibit. For example, a diversity and inclusion training could be so offensive, and so hostile to White employees, that it could create a hostile work environment. That is already illegal—as both parties acknowledge.” Walker concludes that the IFA attacks ideas, not conduct, and so the plaintiffs are likely to win the case.

Walker also agrees with the plaintiffs that the IFA is “impermissibly vague” in how it defines the forbidden ideas, leaving it for the state to resolve and leaving employers unclear about what sort of discussion about race is and is not forbidden.

DeSantis’ own deliberate politicization of the issue is brought up as evidence that this is all viewpoint-based government censorship:

As detailed above, the IFA is designed to exorcise these viewpoints out of the marketplace of ideas—Governor DeSantis went so far as to call it the STOP WOKE Act at a press conference with children waving anti-critical race theory signs.

And so, Walker agreed to enjoin the state for now from enforcing the business training component. The American Civil Liberties Union is suing Florida to try to block the school discussion ban part of the bill as well.

The judicial smackdown against the state of Florida here looks remarkably similar to what happened in May with the DeSantis-approved bill that attempted to force social media companies to carry political messages by candidates for office. That law has also been temporarily enjoined as unconstitutional. While the reason appears to be in the opposite direction (Florida attempting to mandate that companies carry certain speech rather than ban it), the foundational issue is the same: The governor and lawmakers of Florida do not have as much authority to tell businesses operating in their state what sorts of speech are or are not permitted there as they claim.

What does this mean for the other high-profile DeSantis-supported speech bill—H.B. 1557, the Parental Rights in Education Bill, a.k.a. the “Don’t Say Gay Bill”? It’s also being challenged in federal court by families and educators as violating the First Amendment for the way it censors classroom discussions on LGBT issues.

Florida, of course, does have the power to determine classroom curriculum for public schools, and defenders of H.B. 1557 insist the law is about preventing inappropriate sexual discussions in kindergarten through third-grade classrooms. But that’s not actually what the law says. The law forbids any instruction on “sexual orientation or gender identity” at all in those grades and then further prohibits any instruction throughout public schooling that is not “age-appropriate or developmentally appropriate” for students without defining what any of that means.

The end result has been wide disagreement with what H.B. 1557 actually bans, prompting books to be removed from libraries and teachers to claim they’re being told to not wear clothing that could invite children to ask questions about LGBT issues (like shirts with rainbow flags on them and the like). It’s not clear that the law actually forbids it, but the lawsuit leans heavily on noting that the vagueness of H.B. 1557 leads to a chilling effect, particularly because it gives parents the power to sue and seek damages if any school district violates the ban.

And so Judge Walker’s observation that the IFA is “impermissibly vague” may end up being relevant to the ultimate fate of the Parental Rights in Education Bill. The courts have rightly taken a dim view of laws that restrict rights and invite punishment in ways where it’s not clear to the layperson what behavior violates the law.

The post Federal Judge Blocks Florida Law Banning 'Woke' Workplace Training appeared first on Reason.com.

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