Probable cause had to be established before judicially authorized search warrants could lawfully be issued.
On the homepage, we’ve posted my column on the FBI’s search of John Bolton’s home early this morning. In it, I traced the history of the classified-information controversy surrounding Bolton’s memoir of his time as national security adviser in the first Trump administration. (He was fired in September 2019 and published the 592-page book just nine months later, in June 2020.) I did not address, however, some of the basic procedural aspects of law-enforcement searches.
My understanding is that the searches were pursuant to warrant. I say “searches,” plural, because we’ve learned since my column posted that the bureau also searched an office that Bolton maintains in Washington, D.C.
Searches in the early morning (meaning in this context around sunrise) are consistent with the issuance of a warrant by a federal court. Under federal law, absent permission from a court, federal search warrants may not be executed prior to 6 a.m. (see Rule 41, Fed. R. Crim. P., subsections (a)(2)(B) and (e)(2)(A)(ii)). Press reports indicating that a search was underway started circulating at about 7 a.m. The law authorizes the FBI to conduct searches pursuant to warrant at any time between 6 a.m. and 10 p.m.; the bureau prudently prefers to enter residences around sunrise, when most people are still in bed, hoping to have the element of surprise, which reduces the possibility that the use of force will be necessary or that evidence will be destroyed before it can be seized. Unless agents have special reason to be concerned about violence or spoliation of evidence, procedure calls for them to knock, announce who they are, and wait to be admitted into the premises. If no one is home or no one is willing to let them in, they are permitted to enter by force.
Bolton is an excellent lawyer with lots of government experience, including in the Justice Department. It is highly likely, then, that the agents were permitted to enter his premises once they identified themselves and explained that they had a warrant. There are many legal objections that can be made to a search by warrant, but the search proceeds and the objections are lodged afterward. The agents are required to present a copy of the warrant to the subject, and they must leave behind an inventory of what they have taken.
The warrant would likely have been issued by federal magistrate judges in the districts where the searches took place. Warrant applications are made by a Justice Department prosecutor, based on a sworn affidavit by a law enforcement agent, here from the FBI. To justify issuing a warrant, the government must demonstrate, and the magistrate judge must find, that there is probable cause to believe a federal crime has been (or is currently being) committed and that evidence of the crime is located in the place sought to be searched. The subject of the warrant does not get to read the probable-cause affidavit on which the warrant application was based (which often includes descriptions of informants who provided information to the government and could, in a case such as Bolton’s, include classified information). The probable-cause affidavit generally remains sealed unless and until charges are filed — at which point it is disclosed to the defense in the discovery process.
And as for the classified-information controversy over Bolton’s memoir: As Trump’s national security adviser, Bolton had access to classified information at the highest and most closely held levels. In 2020, General Paul Nakasone, then the director of the National Security Council (NSC), alleged that Bolton’s book “implicated” very highly classified information and that its publication risked the permanent loss of valuable signals intelligence (i.e., information gleaned from electronic penetration of communications) and could even irreparably damage the government’s system for collecting signals intelligence. Ultimately, Judge Royce Lamberth opined that Bolton had “exposed his country to harm and himself to civil (and potential criminal) liability.”
I have to assume that General Nakasone’s allegations and Judge Lamberth’s assertion, the underlying factual bases for which are undoubtedly classified, were significant parts of the probable-cause showing in support of the Bolton warrants. (Otherwise, there would have to be some new basis for a classified-information investigation of Bolton, which seems unlikely.)
This morning while I was on Fox News to discuss the nuts and bolts of search warrants and the history of the Bolton book controversy, it was reported, based on unidentified sources, that Trump CIA Director John Ratcliffe had shared information that was relevant to the warrant application with FBI Director Kash Patel. While I am speculating, it would not surprise me if the information shared by the CIA was pertinent to whatever signals intelligence was at issue in connection with Bolton’s book and the NSC’s claim at the time that the book’s publication risked irreparable damage to the signals intel system.
It is worth emphasizing that Bolton has not been charged with a crime and that, in 2021, the Biden Justice Department closed the investigation against him. Of course, closing an investigation does not necessarily mean the government did not find a crime; it often means there was no crime worth prosecuting — because it wasn’t sufficiently serious, the subject of the investigation was a law-abiding person, there were alternatives to criminal prosecution that would suffice to hold the subject accountable, or the downsides of prosecution (e.g., the need to expose classified information) outweighed the upsides. But that said, Americans are presumed innocent, and that presumption should work in Bolton’s favor.
As President Trump’s supporters maintained when his Mar-a-Lago resort and residence were searched pursuant to a court-authorized warrant — i.e., on a judicial finding of probable cause that crimes had been committed — the execution of a search warrant doesn’t prove that anyone is guilty of anything.
Interestingly, Fox News reports that John Bolton posted on X while the FBI was searching his home. The post related to his views on Ukraine and included a dig at President Trump for allegedly pursuing negotiations to end Russia’s war of aggression solely because he hopes to win a Nobel Peace Prize. Bolton did not mention the search. For his part, the president ripped his former national security adviser in public comments while the searches were ongoing but maintains that he knew nothing about the searches.