.

What this means to me is that the bureaucraps at the FBI knew they likely stood no chance of getting a ‘real’ Article 3, Federal District Judge to issue the warrant, so they went to a magistrate they could pressure to do what they wanted.

Can Magistrate Judges Constitutionally Issue Search Warrants Against Trump (Or Anyone Else)?

Philip Hamburger is the Maurice and Hilda Friedman professor of law at Columbia Law School, and the president of the New Civil Liberties Alliance

The Mar-a-Lago search warrant is interesting not only because of the high office of the individual whose papers were seized but also because of the low office of the person who signed it. The warrant illustrates the long-standing constitutional anomaly of letting magistrate judges sign search warrants.

Leave aside how you feel about the former president. Leave aside what you think of January 6, 2021. Leave aside whether there was a good reason to issue the warrant. A more basic question is whether the Hon. Bruce Reinhart could constitutionally issue it.

Under the Constitution, a Search Warrant Must Be Signed by a Judge
The problem is that Reinhart is a so-called magistrate judge. Many commentators have focused on his personal history and political leanings, but much more significant is that he is not really a judge.

To be precise, he is not a judge of a court of the United States. The judicial power of the United States is vested in its courts. In the exercise of this power, judges of those courts can issue search warrants. But a magistrate judge is just an assistant to a court and its judges. Not being a judge of one of the courts of the United States, he cannot constitutionally exercise the judicial power of the United States. That means he cannot issue a search warrant.

The full shift of the judicial power of the United States in criminal cases to magistrate judges has been relatively recent. Only since 1968 has Congress generally authorized persons other than real judges to exercise the judicial power of the United States in trying misdemeanors (although a defendant can still insist on being tried by a real judge when charged with more than a petty offense). In addition, district courts can assign the non-judges “such additional duties as are not inconsistent with the Constitution and laws of the United States.” Only since 1990 have the non-judges been called “magistrate judges.”

Just how little a magistrate judge can be considered a judge is evident from the way he is appointed. Rather than be nominated by the president and confirmed by the Senate—as provided by the Constitution for real judges—a magistrate judge, including the one who signed the Mar-a-Lago warrant, is appointed merely by a majority of the active judges of a district court. He serves for only eight years, he can be removed for cause, and even if not removed, he always must worry that his district court will not reappoint him.

Congress, moreover, can reduce his salary. He therefore is not a judge of the court, but merely one of its servants. Like a law clerk or other assistant, he can help a judge understand the issues underlying the decision to issue a search warrant. But he should not issue it.

Anglo-American history is illuminating. An exercise of judicial power, the issuance of a search warrant traditionally had to come from one who enjoyed that power. So, in England, search warrants had to be issued by a judge or a justice of the peace, who enjoyed elements of a judge’s authority. Similarly, in early states, search warrants had to come from a judge or justice of the peace. This already suggests a difficulty for the Mar-a-Lago warrant and any other search warrant issued by a magistrate judge or anyone else who is not really a judge, but merely an assistant or adjunct to a judge.

This problem is evident not merely from history, but from the Constitution’s very text. Whereas the English and state systems let some judicial power be exercised by justices of the peace and other judicial officers who were not judges of the courts, the federal system confined the judicial power of the United States officers to the courts and their judges.

The U.S. Constitution vests the judicial power of the United States in the Supreme Court and such other courts as Congress authorizes. That is, it leaves no room for the judicial power of the United States to be exercised by any other court or any judges except those who sit on such courts. This bodes ill for federal search warrants signed by magistrate judges and other judicial officers who are not judges of the courts.

One might protest that the courts or their judges can delegate their power to subordinates. But at common law—in contrast to civil law—judges have never been able to delegate judicial power. And the Constitution does more than simply vest the judicial power of the United States in the courts, for it says that the judicial power “shall be vested” in the courts. If it had merely vested judicial power in the courts, it might have left the courts free to subdelegate their power.

In contrast, by saying that the judicial power shall be vested in the courts, it not only places judicial power in the courts but also makes that location mandatory. In other words, neither Congress nor the courts can transfer it elsewhere. So a magistrate judge’s exercise of the judicial power in issuing a search warrant cannot be excused on a theory of delegation.

At stake is whose judgment matters. The whole point of having judges nominated by the president and confirmed by the Senate is to ensure that the judgment required for the exercise of judicial power will be the judgment of individuals learned in the law—ones carefully chosen to exercise mere judgment, not will.

Such individuals, moreover, are protected in salary and tenure. They need never worry that they will be removed for cause or not reappointed. So the judgment of a real judge makes a real difference. Any binding judicial act that is not merely ministerial must be an exercise of judgment by an actual judge of the courts, not anyone else.

Whereas the judicial power is very broad and potentially dangerous, the duty of judges to exercise mere judgment in accord with the law is very confining. The breadth of the institutional judicial power is tempered by the narrowness of the individual duty. It therefore is essential that the judicial power of the courts be exercised only by the judges of the courts—individuals chosen for their attachment to law and their duty of judgment. Although not a guarantee against abuses, this is a crucial protection against them.

The Constitution’s vesting of the judicial power in the courts is important for search warrants. It ensures that at least for federal search warrants, the “probable cause” required by the Fourth Amendment will be ascertained by a judge, not anyone else.

Indeed, search warrants from magistrate judges violate not only the vesting of judicial power in the courts but also the Fourth Amendment. In guaranteeing that search warrants must rest on probable cause, that amendment assumes that probable cause will be found by a judge. Moreover, the issuance of a search warrant is unreasonable when it comes from a non-judge, because he lacks salary and tenure protection and has not gone through the same rigorous selection process as a real judge. The guarantees of probable cause and reasonableness are much diminished when a non-judge can make the determination.

Of course, in addition to relying on its own judges, the federal government can work through state officers who have the authority to issue search warrants, and this traditionally has meant both state judges and state justices of the peace. In the District of Columbia or a territory, moreover, the federal government does not exercise the judicial power of the United States, but rather the judicial power of the district or the territory. In such places, justices of the peace and magistrate judges can be authorized to issue search warrants. Congress has even extended this use of non-judges to national parks—a policy that confuses federal parks with federal districts and territories.

Outside federal districts and territories, the federal government exercises the judicial power of the United States. Under that power, lower federal judicial officers, such as commissioners, might take bail and depositions and carry out other ministerial tasks. But they traditionally could not exercise the binding judgment necessary for the issuance of a search warrant.

Although Congress eventually deviated from this principle, it began to do so only after the Civil War and only very narrowly—for revenue fraud and counterfeiting. Congress occasionally added specialized spheres in which non-judges could issue search warrants under the judicial power of the United States. But only in the mid-twentieth century (as explained below) did such search warrants generally come from non-judges. Federal search warrants from magistrate judges thus have no support in early practice and, with few exceptions, are a relatively late, twentieth-century evolution.

Overall, it is difficult to understand how the Mar-a-Lago search warrant can be reconciled with the Constitution. Not being a judge of one of the courts of the United States, a magistrate judge cannot exercise the judicial power of the United States. He therefore cannot find probable cause or otherwise issue a search warrant.

Not Excused by Contemporary Doctrine
But what about contemporary doctrine? Might that offer some excuse for the warrant?

The initial justification for permitting magistrate judges to exercise judicial power is that they are merely adjuncts to the judges. By locating judicial power in the courts, the Constitution requires judges, not adjuncts, to exercise any binding judgment (this being a distinctive characteristic of their office). Twentieth-century doctrine, however, is more lax. It permits adjuncts to make any decisions as long as the essential attributes of judicial power remain in the judges.

Yet even this flaccid doctrine cannot justify the Mar-a-Lago warrant. A search warrant is a binding judicial order—one that intrudes deeply into personal affairs and papers on the basis of a judgment about probable cause. It therefore is essentially and importantly judicial.

And when a search warrant comes from a magistrate judge, the majority—indeed, the entirety—of the judicial power involved in issuing it is exercised by the magistrate judge. That means the essential attributes of judicial power do not remain in a real judge. So, even under current doctrine, a search warrant cannot be left to a magistrate judge on the theory he is acting merely as an adjunct. Other excuses are necessary.

A second is that, in England and some of the early states, petty offenses (a category including many misdemeanors) could be allocated to justices of the peace who were not regular judges and could not hold jury trials. The Supreme Court has relied on this history to excuse shifting minor offenses to magistrate judges sitting without juries.

But the petty offense exception is entirely unjustified. The Constitution expressly rejected the petty offense exception by guaranteeing a jury trial in all criminal cases and all criminal prosecutions. So, the petty offense argument cannot justify criminal trials by magistrate judges.

Also, with search warrants there is another problem: the Constitution assures all persons that they will get the due process of law—traditionally meaning the due process of the courts. There consequently is a due process right to have a federal search warrant issued by a judge of a court of the United States.

Topping it off, the petty offense excuse is irrelevant to search warrants issued by magistrate judges because they do not confine their warrants to petty offenses. The Mar-a-Lago search warrant, for example, was for offenses that cannot be considered petty. The petty offense explanation is therefore inapplicable here.

Another standard excuse for the criminal jurisdiction of magistrate judges is that defendants sometimes consent. But the Constitution mandates the location of the judicial power in the courts, and this is a structural limit. So it is difficult to understand how consent could justify the exercise of judicial power by persons who are not judges of the courts.

In any case, arrest warrants, including the Mar-a-Lago warrant, obviously are not consensual. Consent is yet another inadequate justification.

A fourth conventional excuse is that the exercise of judicial power by magistrate judges is subject to district court supervision. This may, perhaps, be true when magistrate judges hold trials. It sometimes may even be true (in an informal sense) when they issue search warrants.

For example, the Hon. Bruce Reinhart might have consulted a district court judge about whether to sign the Mar-a-Lago warrant. But any such prior advice by a district court judge could be viewed as an advisory opinion, and there is no reason to believe that Reinhart sought such advice. So if one leaves aside this speculative possibility, the problem is that a search warrant is unlike a trial or a portion of it, such as voir dire (jury selection).

Rather than an evolving proceeding in which the defendant can ask the magistrate judge to pause for an interlocutory appeal to a district court judge, the signing of a search warrant is a single binding act, done in secret, without the defendant’s knowledge. It therefore ordinarily cannot be subject to supervision by a real judge. The only possible supervision is an appeal after the constitutional injury has been ineradicably suffered. The supervision excuse is therefore as inapplicable as the others.

A fifth and final excuse is drawn from administrative law doctrines on neutral adjudicators—not an auspicious foundation. From this perspective, magistrate judges can be trusted to the extent they are “capable of competent and impartial performance” of judicial duties. But they are not independent in the same way as real judges.

Even if mere competence and neutrality could justify displacing the judicial power from where the Constitution says it shall be vested, there remains the difficulty that magistrate judges are institutionally compromised. They are not protected in tenure or salary; they always are vulnerable to the displeasure of Congress or their district court. Especially in criminal cases, let alone high-profile cases, they cannot be unaware of the risks of reaching unpopular decisions. However personally independent they may be, they are institutionally without independence.

These judicial doctrines—whether that magistrate judges are mere adjuncts, that they have consent, that they hear only petty offenses, that they are subject to supervision, or that they are neutral adjudicators—have different implications for trials and search warrants. Although the doctrines depart from the Constitution, they dominate judicial thinking, and according to the judges, they justify at least some of the trials held by magistrate judges. But the doctrines condemn search warrants from magistrate judges. Indeed, the Supreme Court has never upheld such warrants against the constitutional or doctrinal objections.

The Mar-a-Lago search warrant thus seems to collide with both the Constitution and contemporary doctrine. Such a warrant could not constitutionally be issued by Reinhart. He may be honorable, but he is not a judge.

On his behalf, one might observe that, not being a regular judge, he may hesitate to hold the current system unconstitutional. Similarly, he may reasonably worry about holding against his authority to issue search warrants—inasmuch as the district court (which can decline to reappoint him) gave him this authority and expects him to exercise it.

But all of this just confirms the point. It is extraordinarily dangerous to hand over the power to issue search warrants to persons who savor being called “honorable” and “judge,” but who are not really judges and who cannot constitutionally or safely exercise the judicial power of the United States.

Judicial Complacency
Notwithstanding that judicial doctrine confirms the unconstitutionality of search warrants issued by magistrate judges, most judges assume that such warrants are unobjectionable. This is not reassuring. Indeed, it is worrisome. Far from merely acquiescing to magistrate judges and their power to issue search warrants, the judges themselves have helped to legitimize this dubious experiment on the liberties of Americans.

One might have thought judges would be cautious about predetermining the lawfulness of any question—especially a threat to civil liberties, especially in criminal law, and especially when they have an institutional interest in the outcome. Nonetheless, they have blithely assumed the constitutionality of search warrants issued by magistrate judges.

For example, after Congress authorized the Supreme Court to promulgate the Rules of Criminal Procedure for the District Courts of the United States, the Supreme Court, in 1944, in Rule 41(a), provided that a search warrant may be issued “by a United States commissioner within the district wherein the property sought is located.” What were commissioners are now called “magistrate judges.”

Even today, Congress itself does not generally authorize magistrate judges to issue search warrants, but merely authorizes district courts to assign “additional duties” to these subordinates. It thus leaves each district court to decide whether its magistrate judges can issue search warrants, and district court judges generally take this opportunity.

Why have judges been so willing to assume and even predetermine the lawfulness of search warrants from magistrate judges? One answer is their workload. As the Supreme Court puts it, without magistrate judges, “the work of the federal court system would grind nearly to a halt.” There is some truth to this, but not because of search warrants. They are only part of the burden alleviated by magistrate judges, and it would not crash the system to leave such warrants to real judges.

The workload of district courts is, at least in part, a judicially created problem. Through their own doctrines, judges have sometimes unnecessarily crowded their schedules. To this extent, it befits them to suggest that the judicial workload requires them to subject Americans to search warrants issued by magistrate judges.

For decades, the judges—the real judges—have shut their eyes to the dangers of handing off parts of the judicial power of the United States to subordinates. The judges have been all too willing to believe that some elements of their constitutional duties are beneath them. Also, of course, their co-conspirators have been the members of the bar who yearn to serve as “judges” and be addressed as “Your Honor.” Convenience and self-indulgence have swept aside concerns about constitutionality.

The Living Constitution?
Of course, government evolves, and it may be thought that the evolution of search warrants issued by magistrate judges is justified by the living constitution. But not all evolution is desirable.

This evolution erodes our freedom and our safety. It is no small matter to let a non-judge find probable cause and sign a warrant. It therefore should not be permitted by a living constitution.

One may believe the living constitution must be alive to the need for governmental efficiency, but that is just an excuse for cutting corners—other people’s corners. One may reasonably assume that federal agents will never knock on your door with a search warrant, let alone barge in without a knock. But the Constitution should be alive to the injuries suffered by all Americans, regardless of their circumstances.

At Mar-a-Lago, the risks for all Americans have become painfully apparent. One danger is that a search warrant will be issued without the sort of dispassionate judgment, knowledge, or discernment one would expect from a real judge. Another peril is that magistrate judges may be too ready to comply with government requests—whether by finding probable cause, permitting overly broad searches, or allowing “no knock” searches. Finally, even if a warrant is entirely justified, it will and should be viewed as constitutionally tainted when it comes from someone who is not quite a judge.

So, think about it. How do you want your criminal rights served up: By the judges or just cafeteria-style? Straight or watered down?

Not Politics or Personalities, But the Constitution
Undoubtedly, some readers will respond to this argument on the basis of their feelings for or against former President Trump. But the question rises far above politics and personalities.

The violation of the former president’s freedom illuminates the damage done to the many thousands of other Americans who have been subjected to unconstitutionally issued search warrants. Although it is widely assumed that warrants issued by magistrate judges are lawful, the Constitution and even current doctrines suggest otherwise.

Such warrants are unlawful and dangerous. And the unconstitutionality is as serious for each of us as for the former president.

Philip Hamburger is the Maurice and Hilda Friedman professor of law at Columbia Law School, and the president of the New Civil Liberties Alliance.