http://www.isthatlegal.org/archives/2007/07/justice_departm.html

July 31, 2007

Justice Department Tips Off Senator Stevens Before Searching His Home!

by shertaugh

The FBI and IRS's execution yesterday afternoon of a search warrant on
the Alaska home of GOP Senator Ted Steven has been widely reported by
now.

What's striking is this tidbit in today's WaPo:http://www.washingtonpost.com/wp-dyn/content/article/2007/07/30/AR200...

Stevens said in a statement that his attorneys were advised of the
impending search yesterday morning.

I spent nearly 9 years as a federal prosecutor.

I'm not aware of a single instance when any prosecutor or agent told
anyone outside the Justice Department that a search warrant was going
to be executed later in the day.

Telling outsiders -- especially lawyers for the person whose property
will be searched -- defeats one of the principal purposes of a search
warrant:

SURPRISE to ensure the integrity of the evidence field.

If you're going to tell the target of the search in advance, then why
not just serve a subpoena and trust in compliance?

Now Stevens' reported comment may have been a spin on a phone call
from someone at DOJ when the agents were at the front door or the
agents themselves calling Stevens' attorneys to ask for the key.

But those seem more than a stretch considering that Stevens says the
tip came in the a.m., and the search was executed in the p.m.

Maybe it's spin.

Or maybe someone at DOJ broke a cardinal principle.

Certainly, only a few people would have known about the impending
search:

the prosecutors conducting the investigation, the team of agents
preparing to execute the search . . . and high-level DOJ officials
who, considering that Stevens is a U.S. Senator, would have had to
approve the search.

Regardless, one thing is clear about Stevens' status from the use of a
search warrant.

He is now squarely in the cross-hairs of a federal criminal
investigation.

According to the Justice Department's Criminal Resource Manual Sec.
659:http://www.usdoj.gov/usao/eousa/foia_reading_room/usam/title9/crm0065...

A search warrant should not be used to obtain documentary materials
believed to be in the private possession of a disinterested third
party unless it appears that the use of a subpoena, summons, request,
or other less intrusive alternative means of obtaining the materials
would substantially jeopardize the availability or usefulness of the
materials sought, and the application for the warrant has been
authorized as provided in paragraph (a)(2) of this section.

Ted Stevens, clearly, is no "disinterested third party."

More likely, given the hoopla a search warrant's execution creates,
Stevens is a target -- defined by the U.S. Attorney's Manual Sec.
9-11.151 this way:

"A 'target' is a person as to whom the prosecutor or the grand
jury has substantial evidence linking him or her to the commission of
a crime and who, in the judgment of the prosecutor, is a putative
defendant."

In any case, while on the one hand, it's just this sort of event -- a
federal search warrant executed against a powerful politician of the
same party as the administration -- that suggests the professionals in
the Justice Department are doing their job, the remark WaPo attributed
to Stevens -- that his attorneys were given a heads-up -- reminds that
this Justice Department works very differently at the top than on the
line.

If it's true that Stevens' lawyers had a heads-up about the search, I
think it's more than fair to ask questions -- and to get answers --
about exactly who told Stevens' lawyers about the afternoon's planned
search, who approved the disclosure, and what was the purpose of the
tip-off.

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