By Sara Kropf
Paul Manafort recently filed a motion to compel the production of the affidavits used to support the Special Counsel’s search warrants in his case. To someone unfamiliar with criminal law, that may seem odd. The defendant must know why the government executed a search warrant, right?
Every once in a while, my clients have some suspicions about why the search warrant was executed but, more often, they are clueless. After the initial shock of the search warrant has worn off, my clients always want to know what the government was looking for—and why.
That’s not an easy thing to find out.
When the government busts into a business with a search warrant, the target gets a copy of the search warrant itself. But that document is not much help. The search warrant lists the address or location to be searched, the date of the search and the magistrate’s signature. It either contains a short list on the warrant—or attaches a longer list—of what may be seized. Those descriptions, however, are usually quite vague, such as “records and information related to violations of [statute], including emails, computer files, ledgers, financial documents and inventories.”
The helpful information is in the affidavit that the government submitted in support of the search warrant. That affidavit is reviewed by the magistrate judge to determine whether the warrant should be issued in the first place, so it often contains a fair amount of detail. In it, the investigating agent will describe the background of the investigation and why she believes information related to a crime will be found at the specified location.
The affidavit may contain information about other targets of the investigation and reference cooperating informants (though not by name) and other witnesses. All in all, it’s a treasure trove of useful information about the investigation. Getting your hands on that affidavit will give you lot of insight into what is going on.
Affidavits Are Under Seal
The government will usually place the affidavit a supporting search warrant under seal. This has its pluses and negatives. On the plus side, it means that the media or other interested parties cannot get a copy of a document that describes the government’s thinking about how your client is a criminal. Particularly for business owners, this keeps potentially business-destroying information confidential.
But, on the negative side, it also means that your client cannot get a copy of the warrant, even though the warrant has to do with the search executed at your client’s property. It leaves the defense in the dark as to the scope of the investigation and even its focus. If the prosecutor is being particularly tight-lipped about the case, it shuts down an obvious source of useful information.
How Do You Get the Affidavit?
The process to request the affidavit is fairly straightforward. You can always ask the prosecutor to lift the seal voluntarily. (Cue hilarious laughter here.)
The other option is to go to the court, like Mr. Manafort did, and seek to compel the government to give you a copy of it under Rule 41. As a general matter, the subject of a search warrant does have a right to see a copy of the affidavit.
But most jurisdictions have an exception to this rule. In the Fourth Circuit, for example, the Government bears the burden of showing “(1) that a compelling governmental interest requires the materials be kept under seal and (2) there is no less restrictive means, such as redaction, available.” United States v. Oliver, 208 F.3d 211, 2000 WL 263954, at *2 (4th Cir. 2000) (unpublished).
The government will often respond to a motion to unseal (or to inspect) a search warrant affidavit that because the criminal investigation is ongoing, revealing this information could jeopardize the investigation. For example, in a recent motion, the government wrote:
Notably, unsealing the search warrant affidavit will identify those individuals who are under suspicion of criminal activity. This could not only lead to possible destruction of evidence or flight . . . [but] poses the real risk of allowing individuals to coordinate their stories before they are interviewed by law enforcement or testify before the Grand Jury.
I’m not sure how a vague explanation like that one could every justify the “compelling government interest” standard but this is a fairly standard response.
Timing of Release in Mr. Manafort’s Case
The government will often try to delay unsealing by saying it needs more time to complete the investigation before the affidavit is unsealed. To head off that objection, Mr. Manafort gives a reason why his request has some urgency. Apparently, the government had produced a redacted version of the affidavits. But the deadline to file motions to suppress is on April 6, 2018. As of the date of the filing (March 28), the defense still did not have the unredacted versions.
Not having the unredacted versions prevents Mr. Manafort from evaluating his need to file a motion to suppress. As the motion recounts:
By way of an example, the defendant can reasonably speculate that the agent’s affidavit supporting the search warrant for the storage unit omits critical information. For ten pages, the affidavit describes the Government’s investigation. Thereafter follows approximately one and one-half pages of redacted material. The affidavit then resumes, after the Special Counsel’s redactions, with the agent describing what he saw while inside the subject storage unit. Nowhere in the unredacted portions of the affidavit does the agent disclose how he came to find himself inside of the storage unit. Hiding the ball in this manner leaves the defense unable to evaluate if the Government had a legitimate basis for entering the storage unit.
Having a specific reason to review the affidavit—particularly a court-set deadline—should help Mr. Manafort’s case, but it’s usually an uphill battle to get a copy of the affidavit. Courts are often loathe to question the prosecutor’s statements that sealing the affidavit is necessary to protect witnesses and the confidentiality of the investigation.
The government hasn’t filed its response to Mr. Manafort’s filing yet but I’d expect that it will continue to fight unsealing for all the typical reasons.
Let’s hope I’m proven wrong.
Mr. Manafort at least deserves to raise fair defenses, such as through a motion to suppress, and the government shouldn’t be allowed to hide behind a sealed affidavit to deny him the ability to do so.
[As a side note, a great Emergency Motion to Intervene Filed on Behalf of All Americans was filed. Not surprisingly, it was summarily denied by the judge. That’s what you get with a high-profile case, I suppose.]