In an elaborate scheme of stealing from the government and targets of an investigation into what’s called the Silk Road marketplace, former DEA agent Force allegedly sent an unauthorized Justice Department subpoena to an online payment service where one of his target’s personal accounts was held.
The question not being asked in the reporting of this case is why does a policing agency such as the DEA have the authority in the first place to issue warrants without showing probable cause before a judge, as required under the Fourth Amendment?
In March a federal judge enjoined the chief law enforcement official of Mississippi, Attorney General Jim Hood, for a more common form of lawless use of these warrants. Hood issued his own administrative subpoena to Google alleging that it published “obnoxious, tasteless and criminal content,” according to the injunction order.
Google sued under various federal statutes plus the First and Fourth Amendments alleging that Hood had pressured Google and threatened to prosecute or sue, plus made the relatively commensurate threat to “investigate Google.” The threat to investigate was on par at some level with suing or prosecuting to punish Google’s behavior, whether charges were justifiable under the law or not.
Investigatory searches and seizures can be very disruptive of businesses or personal lives. Historically, searches and seizures were abused to suppress religious freedom or to silence critics of government. These abuses were well-known to the Framers of the Constitution, including James Madison who authored the first draft of the Fourth Amendment.
Almost 60 years ago, the landmark decision in NAACP v. Alabama negated a subpoena for a list of the organization’s members on First Amendment grounds. Last year the Department of Veterans Affairs issued an administrative subpoena to good-government watchdog Project On Government Oversight, which had collected information from whistleblowers to report on the VA dereliction of patients scandal and cover-up. After conservative Catherine Englebrecht created the election fraud watchdog True the Vote, she and her husband’s business were audited and investigated by multiple government agencies.
When it comes to administrative subpoenas, think of numerous government officials with the arrogance and scruples of disgraced former IRS official Lois Lerner wielding the power, and you get the picture. The Fourth Amendment, however, is designed to ensure, up front, that searches and seizures are subject to certain basic requirements to limit government from abusing and bullying us.
Federal administrative subpoenas, these judge-less warrants that evade the requirements of the Fourth Amendment, came into regular use after the Administrative Procedure Act of 1946 was enacted. The 1950 Supreme Court consisting of five Franklin D. Roosevelt and four Harry Truman appointees determined these judge-less warrants did not violate the Fourth Amendment – by virtually ignoring that particular Bill of Right.
The court in U.S. v. Morton Salt instead justified these judge-less warrants claiming that the “Federal Government allows [businesses] the privilege of engaging in interstate commerce … [and] favors from government often carry with them an enhanced measure of regulation.” The Supreme Court essentially said that engaging in commerce came with the trade-off of losing supposed “inalienable” rights. That was the constitutionally grotesque start of judicial acquiescence to administrative subpoenas.
The Fourth Amendment’s requirement of a warrant, however, exists to ensure that a neutral judge, not a law enforcement official, determines that there are objective grounds that a law may have been broken before the government obtains the private papers and effects of individuals or businesses.
The Fourth Amendment inherently requires a separation of powers for warrants to be issued because it is based in the laws of trespass. Just as you or I may not enter a home or remove someone’s personal property without the owner’s consent, government may likewise not do so without consent – or a warrant issued by a judge after a showing of probable cause.
In a 2013 case about police searches of a home called Florida v. Jardines, both Justice Scalia’s majority opinion and Justice Alito’s dissent provide thoughtful analysis of how the Fourth Amendment is grounded in the common law of trespass. Laws of trespass, however, not only protect our homes, but our personal and business “papers and effects.” To remove personal property without the consent of the owner is the trespass of asportation, more commonly called larceny.
Administrative subpoenas issued unilaterally by bureaucratic law enforcement officials and agencies for documents and data are the constitutional equivalent of police officers writing their own warrants to enter your home. That should be unconstitutional on its face, but also fosters discriminatory trespasses, bullying under color of law, and other arbitrary transgressions of the rule of law. This is the prototype of a police state.
Mark J. Fitzgibbons, Esq. is an attorney and co-author with Richard Viguerie of "The Law That Governs Government."