Justice Department tipped off Senator Stevens before searching his home...

Is That Legal?
Aug. 01, 2007

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:

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:

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.