Is the FBI Using the Patriot Act vs Donald Trump?

In the ongoing J6 trial of the Oath Keepers, a striking admission has come up.

The government has obtained, and of course leaked, a list of 38,000 members of the Oath Keepers. Only around 500 of these are current police, law enforcement, or politicians -- and that includes aspiring politicians. (A politician who kept his oath would be rara avis indeed.) Their lawyer was arrested this week in Texas, but will be prosecuted in D.C. in accord with the standard practice for all of this J6 business.

Of greater interest is that the warrant to search her phone was obtained via the Patriot Act, which allows the DOJ to seek such warrants from magistrates anywhere in the country, which in this case also means in DC.

Federal investigators probing the extremist group Oath Keepers on charges of seditious conspiracy last year invoked the provision that permits the government to obtain a search warrant from a U.S. magistrate judge anywhere in the country rather than one located where the search is to be executed in a domestic terrorism investigation, according to the newly unsealed court records.

The 18-page opinion revealed that in July 2021, prosecutors asked a U.S. magistrate judge in D.C., rather than one in Texas, to approve a court-authorized search of a cellphone owned by a person who appears to match the description of an attorney for the Oath Keepers, Kellye SoRelle. The lawyer was arrested last week in Texas and was with the group’s founder, Stewart Rhodes, outside the Capitol on Jan. 6, 2021.

Emphasis added. Now one of the subjects of significant commentary since the Mar-a-Lago raid was the use of a magistrate rather than an Article III Federal judge to obtain a search warrant. The Federalist says such magistrate-issued warrants are a late 20th century practice, without support in most of American history.

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 Patriot Act does state that magistrates -- and anywhere -- can issue search warrants, and those warrants can be quite broad like the one the FBI executed here. That raises the question of whether the investigation into Trump is a "domestic terror" investigation, as the Oath Keepers are being treated as domestic terrorists and seditious conspirators. 

Trump's fundraising arm has recently received several subpoenas, indicating that the DOJ is looking into his whole organization as conspirators of some sort or other. Ty Cobb, who served under Trump, thinks the whole investigation is ultimately about January 6th (and, it should be noted, thinks Trump is guilty and should be disqualified under the 14th Amendment from seeking the Presidency). This is also coherent with Andy McCarthy's general theory that the M-a-L raid was a J6 fishing expedition. 

That's swinging for the fences, though. I guess if you hate a guy enough to impeach him twice after failing to get him with a Special Counsel, the Patriot Act and the 14th Amendment are not unthinkable escalations. Trying your political opponents as domestic terrorists is new, but as the Alien & Sedition Acts show, treating your opponents as more-or-less traitors is almost as old as the Republic.