Based on what you are saying, I assume that the Justice Department would need to convince a judge that a subpoena would not work. Is that accurate?
That is not accurate. The decision about whether to use a subpoena or to use a search warrant is a discretionary one made by the executive. A judge doesn’t weigh in on that. A judge doesn’t say, “I am not going to issue a search warrant because you could do this by subpoena.” That is not something that a court would weigh in on. But what the court would weigh in on is the following: in order to issue a search warrant—unlike a subpoena, where you don’t need any factual predication—there has to be a determination by a judge that there is probable cause of a crime, and that the evidence of that crime will be in the location that you seek to search.
And what about in terms of recency? If Trump took documents from the White House to Florida twenty months ago, would a judge want some reason to think that the documents are still there?
Yes. One of the requirements for the search warrant is evidence that the information will be there during the two-week period that the F.B.I. is authorized to do a search—the information is not “stale.” And that’s the term of art that people talk about. Is the information being presented by the F.B.I. to the court stale? What you are looking for is some evidence of recency. Why would [the material] still be in that location? Even if something happened eighteen months ago, that’s fine. But a judge might say, “What makes you think it is still in that location?” This is speculation, but you would think that there has to be at least one source who gave the F.B.I. information about what was there fairly recently, and that whatever they were looking for was in that location.
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