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The recent news about Oakland Mayor Sheng Thao getting raided by the FBI has sort of raised this question for me. Obviously there’s a lot to speculate about here. But in general I would like to understand better what systems are in place to prevent FBI raids to be abused for political gain by those in power in the federal government.

Regardless of the outcome and especially if the investigation doesn’t come to a close before her re-election we could all agree it’s likely a dark mark for her political career.

The scary thing to me as a citizen is how this could be abused in a theoretical situation especially since citizens may not for a long time, if ever, know what investigation prompted the raid. I don’t know if we can even reasonably expect the FBI to ever come out with a “they’re innocent” if their investigation was not incriminating. Even if they did, it might be too late.

If the only check is citizens to vote for their re-election regardless then the people are at a strong disadvantage. Their opponent could speculate publicly with official details on the investigation sparse.

So the question sort of is, if an administration intent on increasing the power of the federal government and or destroying the reputations of specific mayors, governors, senators wanted to, what is stopping them from ruining a politician's election chances with a raid near an election?

Presumably some judge signs onto the warrant just like any other situation, but what level of judge? How is it decided which judge will need to agree on it? Can the FBI approach a different judge until one agrees?

Does the level of court judge the warrant must be signed off from vary depending on what branch and level of government the politician is in?

Even though in theory the judicial branch is supposed to be independent, most federal and higher court judges are appointed by the president. And when it comes to accountability I am not sure where I as a citizen could even go to figure out which judge signed off on this warrant. In the case of the Oakland Mayor I can’t find a news station reporting which specific federal judicial officials were involved.

As for the FBI, they are fairly tight lipped and certainly can’t be expected to operate with perfect ethics, especially with their lack of transparency. I can’t imagine we’d see specific FBI agents whistleblowing to the public here. As for internal governmental whistleblowing, the DOJ (which normally protects whistleblowers) is very linked to the FBI and the current federal administration.

Which section of law does this even fall into? I understand the FBI's creation is backed by constitutional law, but I don’t see it explaining this situation in any detail.

Or perhaps there are other checks to prevent the power of the federal government to ruin a politician's career via a raid. But what are they? Are there not extra hoops if the FBI wanted to, say, investigate the minority party leader or a state governor?

I'm also curious how long these checks would take to apply. Can these checks take action quickly enough to prevent a bad acting federal administration?

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    A government can not exist without the people. That is why the government should fear angering its people, not the other way around. Judging by your question, we are still in the latter situation.
    – CodeJunkie
    Commented Jun 26 at 11:49
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    The harassment of e.g. MLK by the FBI is well-documented. The only real check is serious public unpopularity, and sometimes the public like baseless raids on opposition politicians.
    – pjc50
    Commented Jun 26 at 12:28
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    Note that in addition to having to be confirmed by the senate, judges outlast the administration that appointed them. So while the judge was selected by an executive, it might not be the current executive. Commented Jun 26 at 15:00
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    Most modern justices systems don't give a verdict of innocent, they give one of not guilty. Not guilty does not mean innocent, it means the case has not been proven beyond a reasonable doubt which is the 'guilt' standard in most modern justice systems.
    – Neil Meyer
    Commented Jun 26 at 16:28
  • @eyeballfrog yes and they can only loose there jobs by quitting, retiring or being impeached. Impeachment of highly level judges has only happened 20 odd times in the unions history and most of those cases involved alcoholism.
    – Neil Meyer
    Commented Jun 26 at 16:31

6 Answers 6

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phoog gave an answer regarding the legal checks and balances. But that is only part of the picture. The real checks and balances are in the political culture.

In the so-called Saturday Night Massacre during Watergate scandal, the Attorney General resigned rather than obeying a certain order by President Nixon. The Deputy Attorney General also resigned rather than obeying the same order. The Solicitor General then obeyed the order, but the episode hastened the impeachment of President Nixon.

So the question would be if the political culture in the US is as stable and as honorable as it was in the 70s.

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    This is a good point, especially considering that this is Politics, which is why I tried to allude to it in my answer. But it's clear to me that the US political (and social) fabric has indeed changed considerably since the 1970's. The threshold for scandal was far lower back then, for example (as seen in the relationship between the president and the attorney general, and in public attitudes about that relationship, speaking of the Saturday Night Massacre).
    – phoog
    Commented Jun 26 at 6:18
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    For a more recent example than the 1970s, in 2021 Justice Department officials threatened to resign before interfering with the election results: npr.org/2022/06/23/1107217243/…
    – bjmc
    Commented Jun 26 at 12:26
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If an administration intent on increasing the power of the federal government and or destroying the reputations of specific mayors, governors, senators wanted to what is stopping them from ruining a politician's election chances with a raid near an election?

Legally, mostly judges. Politically, the prospect of Congress reducing the power of the executive branch in response to such overreaching.

Presumably some judge signs onto the warrant just like any other situation but what level of judge?

Since the FBI normally investigates federal crimes, the warrant will be issued by a federal district court judge or (perhaps more likely) a magistrate judge.

How is it decided which judge will need to agree on it?

It will normally be a judge from the district court in whose district the search will occur. I don't know how this works for searches that span multiple districts. There are also specialized courts that could issue the warrant if the investigation concerns a matter within their scope of activity.

Can the FBI approach a different judge until one agrees?

This certainly happens in some state systems, but I don't know whether any federal court has a system that would allow it.

Does the level of court judge the warrant must be signed off from vary depending on what branch and level of government the politician is in?

No. There are three levels of federal courts. The upper two levels are the courts of appeals and the supreme court. The lowest level is the district courts. Search warrants are issued by district court judges.

Even though in theory the judicial branch is supposed to be independent, most federal and higher court judges are appointed by the president...

All federal judges are appointed by the president after confirmation by the senate, except for the aforementioned magistrate judges.

DOJ (which normally protects whistleblowers) is very linked to the FBI and the current federal administration.

The Department of Justice is linked to FBI because the FBI is part of the Department of Justice. Similarly, the Department of Justice is linked to the federal administration because it is part of it.

Which section of law does this even fall into? I understand the FBI's creation is backed by constitutional law, ...

The FBI is not created by the constitution. It is created by statute. The authority to create it is however derived from the powers given to "congress" in the constitution (where "congress" is shorthand for "the legislative process" whereby congress passes laws -- with or without the president's agreement -- and the president and other executive officers are expected to, well, execute those laws).

but I don’t see it explaining this situation in any detail.

The detail is found in the US Code, especially titles 18 (Crimes and Criminal Procedure) and 28 (Judiciary and Judicial Procedure). Despite its title, Title 28 concerns not only federal courts but also the executive Department of Justice (part 2), including the FBI (chapter 33).

Or perhaps there other checks to prevent the power of the federal government to ruin a politician's career via a raid.

A raid will not necessarily ruin a politician's career.

But what are they? Are there not extra hoops if the FBI wanted to say investigate the minority party leader or a state governor?

There are none beyond the requirement to get a search warrant and any internal checks and balances the FBI might put in place and the statutory requirement of 28 USC 535, which I suspect applies only to federal officers and employees:

28 U.S. Code § 535 - Investigation of crimes involving Government officers and employees; limitations

(a) The Attorney General and the Federal Bureau of Investigation may investigate any violation of Federal criminal law involving Government officers and employees—

(1) notwithstanding any other provision of law; and

(2) without limiting the authority to investigate any matter which is conferred on them or on a department or agency of the Government.

(b) Any information, allegation, matter, or complaint witnessed, discovered, or received in a department or agency of the executive branch of the Government relating to violations of Federal criminal law involving Government officers and employees shall be expeditiously reported to the Attorney General by the head of the department or agency, or the witness, discoverer, or recipient, as appropriate, unless—

(1) the responsibility to perform an investigation with respect thereto is specifically assigned otherwise by another provision of law; or

(2) as to any department or agency of the Government, the Attorney General directs otherwise with respect to a specified class of information, allegation, or complaint.

(c) This section does not limit—

(1) the authority of the military departments to investigate persons or offenses over which the armed forces have jurisdiction under the Uniform Code of Military Justice (chapter 47 of title 10); or

(2) the primary authority of the Postmaster General to investigate postal offenses.

Finally, you ask:

I'm also curious for these checks how long they would take to apply? Can these checks take action quickly enough to prevent a bad acting federal administration?

The search warrant check works the other way around. The judge must issue the warrant before the executive can conduct the search. But in general courts typically have a judge on 24-hour call for cases where a warrant has to be issued immediately.

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    FWIW, the internal checks and balances within the FBI and Justice Department and the direction that they take from the Office of Legal Counsel in the Justice Department, are no joke and not trivial under the current administration and all previous ones in recent history. As a practical matter they probably have more impact than judges or magistrates refusing to issue search warrants.
    – ohwilleke
    Commented Jun 25 at 19:34
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    The federal court requirement for a grand jury indictment for more serious charges while usually trivial protects elected officials quite well. So does the defense of the speech and debate clause. The Posse Comitatus Act also poses a serious barrier to the use of military units as opposed to civilian law enforcement towards this end.
    – ohwilleke
    Commented Jun 25 at 19:38
  • "Legally, mostly judges." What are you basing this on? You need data on how deferential judges are when the FBI approaches them. Or by "legally" did you actually mean "theoretically"?
    – Hasse1987
    Commented Jun 25 at 23:18
  • You omitted another check - the fact that the law enforcement officials doing this will be subject to a huge amount of scrutiny, and if they have messed up their careers will be ended (if they don't end up with a criminal record). Commented Jun 26 at 0:18
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    @Hasse1987 I basing that on the constitution. I don't need data to describe the check. I would need data to analyze its effectiveness, but that isn't the question here.
    – phoog
    Commented Jun 26 at 6:04
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I will assume that you're talking about a maliciously-baseless raid conducted purely for political reasons. If the target actually did commit the crime in question and there is probable cause to support the warrant, then any political damage is well-earned and appropriate and the question is moot.

I don’t know if we can even reasonably expect the FBI to ever come out with a “they’re innocent” if their investigation was not incriminating.

It's not a matter of guilty or innocent. It's either "I can prove they did it beyond a reasonable doubt" or "I cannot prove they did it" (whether due to innocence, insufficient evidence, or any other reason). If they uncovered enough evidence that they believe they have a solid case, they will file charges against the target. Law enforcement will only publicly declare someone "innocent" in very rare situations, since proving innocence is often difficult or impossible. Instead, they simply never file charges and drop the investigation. From the legal perspective, you're innocent until proven guilty so a public declaration of innocence is unnecessary, plus it makes it harder to re-open a case later should additional evidence come to light.

So the question sort of is, if an administration intent on increasing the power of the federal government and or destroying the reputations of specific mayors, governors, senators wanted to, what is stopping them from ruining a politician's election chances with a raid near an election?

There's a "boy that cries 'wolf'" aspect here. An administration might be able to pull this stunt once. Launching knowingly-baseless law enforcement raids against multiple opponents would be difficult to spin as anything but political in nature and the electorate would take them with a massive grain of salt. If you fail to get a clear conviction on even one of them, the public will be that much less likely to put any stock in future raids or investigations.

You also give your opponent a great opportunity to portray you as someone who abuses their position to protect their own power. There's a real risk that your target can mount a quick defense and have the raid/warrant thrown out as illegal, or that you take the evidence to a grand jury and they decide there is no probable cause, or that your opponent can publicly present ironclad evidence supporting their innocence. You can end up giving a tremendous amount of political ammo to your opponents, and that's not a risk most politicians will take lightly.

Or perhaps there other checks to prevent the power of the federal government to ruin a politician's career via a raid. But what are they? ... I'm also curious how long these checks would take to apply. Can these checks take action quickly enough to prevent a bad acting federal administration?

Most checks are on the other side of things. An illegal raid or a warrant based on fabricated information can be challenged in court. A successful challenge means all evidence or knowledge gained from that raid becomes the fruit of the poisonous tree and cannot be used in any way. That generally damages the prosecution enough to prevent them from getting a conviction. Those involved in the malicious raid likely broke the law to do so, which could involve offenses like perjury (e.g. lying to a judge in order to get the warrant signed), barratry, or abuse of power. A grand jury can bar a case from proceeding if it's obvious to them that the case has no merit. The prosecutor driving the case can be disbarred, and targets can file civil lawsuits against the government for things like malicious prosecution or abuse of power. 42 U.S.C. § 1983 provides a way for victims to sue government officials for damages when they abuse their official position to wrongfully deprive the victim of their rights or privileges, and § 1986 adds civil liability to anyone inside the government who knew about the abuse of power, were in a position to stop it, and failed to act. You can see some relevant examples by reading through the history of former sheriff Joe Arpaio, who was accused of using his office to launch bogus prosecutions against a number of political rivals.

You'll note that these are all remedies and consequences that would kick in after the raid took place. There's not much to stop the raid before it happens other than judicial oversight and the conspirators' desire not to get fired, arrested, or sued. The target of the raid wouldn't be notified of the raid in advance so they can't to anything to block it. After the raid, they will have suffered harm and will have standing to file legal complaints for restitution and to throw out the results of the raid.

You're asking about the political consequences, and the law doesn't generally take those into consideration. The accused is entitled to be presumed innocent until proven guilty, which is exactly what the law does when a vexatious investigation gets thrown out. It is entirely possible that the public might jump to conclusions and deny the presumption of innocence in the court of public opinion but that's not considered to be a failure of the law (after all, you could have the same effect using political rhetoric alone). Situations like this should serve as a good opportunity for the electorate to remind themselves of the basic principles that the legal system was founded on, and of the danger of making hasty judgements.

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  • would be difficult to spin as anything but political in nature and the electorate would take them with a massive grain of salt. If you fail to get a clear conviction on even one of them, the public will be that much less likely to put any stock in future raids or investigations — you appear to have a very optimistic view of the electorate.
    – gerrit
    Commented Jun 28 at 6:14
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There is not a lot that's keeping leaders from using the administration, including the police, for their goals, especially for cementing their power. A lot of institutions like the police or the army depend on internal controls since only a fraction of violations ever becomes public. As any victim of police brutality can tell, it is very hard to successfully hold police (or military) responsible. Only the most outrageous and best-documented cases have any chance of succeeding at all in courts. A malicious leadership will quickly weaken that internal control by inserting corrupt, dependent officers into the chain of command and by not pursuing violations and sanctioning whistleblowers.

This process can be observed in authoritarian regimes around the world. Usually it requires weakening or intimidating the main correctives which handle the cases which do become public: The judiciary and the press and media.

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    This said, the U.S. has one of the most decentralized law enforcement systems in the world with the vast majority employed by local city and local county governments. Even law enforcement employed at the state level is a quite small share of the total, and the fraction of law enforcement officers employed at the federal level is likewise small and highly fragmented with almost every significant federal agency having its own LEOs. Add the Posse Comitatus Act which remains very vital in the U.S. military, and the available resources to do so are much smaller than in most authoritarian states.
    – ohwilleke
    Commented Jun 26 at 21:11
  • Also, the President's control of the FBI (the largest federal law enforcement agency that could be tapped) is limited as the FBI director serves a fixed seven year term, and because FBI agents have civil service protections. The President's control over the FBI is not as absolute as it is in many other areas.
    – ohwilleke
    Commented Jun 26 at 21:12
  • @ohwilleke True, the fragmented police system leads to quite a few local or regional police divisions where neither self control nor external control works very well, I think. -- While the President cannot (I think) directly appoint or fire regular FBI personnel, he or she appoints (confirmed by the Senate) and can fire the FBI chief, so there certainly is influence there. Commented Jun 26 at 21:50
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    The President appoints the FBI director when there is a vacancy. Whether or not the President has the power to fire the FBI director if the director refuses to resign is an unsettled legal issue. Legally, the answer ought to be "no" in light of the relevant statutes, but some conservative SCOTUS justices favor a "unitary executive" theory that would argue otherwise and most FBI directors have in practice resigned if a President requests that they do. The purpose of the seven year term was to prevent a President from firing the FBI director for bad purposes.
    – ohwilleke
    Commented Jun 26 at 22:11
  • @ohwilleke Which part of "you are hereby terminated and removed from office, effective immediately" is unclear or contested? Commented Jun 27 at 13:23
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But in general I would like to understand better what systems are in place to prevent FBI raids to be abused for political gain by those in power in the federal government.

In the US you can fight the case but you cannot fight the arrest. If John Wayne comes to your house there is pretty much nothing you can do in that moment to stop him. All your remedies can only happen after the fact.

As for after-the-fact-remedies, in the USA the general recourse a person has for a deprivation of a clearly defined right is called a Code § 1983 - Civil action for deprivation of rights.

Law enforcement agencies do enjoy certain qualified immunity i.r.t these lawsuits. These immunities require an affirmation that the right that was claimed to be broken must be "clearly established statutory or constitutional rights of which a reasonable person would have known".

Wikipedia gives the excellent expose on what exactly "clearly established" means in this context.

Whether the law is "clearly established" depends on whether the case law has addressed the disputed issue or has established the "contours of the right" such that it is clear that the official's conduct is illegal.[25] It is undisputed that Supreme Court opinions can "clearly establish" the rule for the entire country. However, circuit court of appeals opinions may have a more limited effect. Circuit courts of appeals typically treat their opinions as clearly establishing the law within that circuit[26]—though the Supreme Court has cast doubt on this theory.[27] In order to meet the requirement of clearly established law, the facts of the instant case must also fairly closely resemble the facts of the case relied on as precedent.[28][20]

SOURCE

It is also worth noting that the FBI as a part of its founding has an adherence to the constitution of the USA as a key part of there mandate. It is the one document that governs all it does.

In regards to improper warrants, if any law enforcement desires a warrant then it can only happen by a sworn affidavit that must give reasons to why the warrant has been sought. Any lies here would be tantamount to perjury.

The DA might also have a Brady obligation to reveal to criminal defence counsel a 4th Amendment ruling successfully concluding that the officer's testimony in support of the warrant was not truthful in any future criminal prosecution reliant upon the credibility of that officer. If this obligation is not met then that could lead to a mistrial

There must again be real suspicion of a crime that has happened or is in the process of happening.

The main oversight in this regard is the defendant's 4th amendment challenge that the warrant was not issued without probable cause of a crime being committed. Just because a warrant was granted does not mean it cannot be overthrown and if it does then there is a real case for a section 1983 lawsuit.

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In practice? Fairly little. Differential enforcement plus overcoverage of laws means that it's not too hard to find a crime that could apply to a given politician, and only prosecuting that politician for said crime instead of allies.

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