Constitutional and Practical Risks of ICE Use

This week, Scott sat down with his Lawfare colleagues Molly Roberts, Michael Feinberg, and Troy Edwards to talk through the week’s big warrant-related national security news, including:

• “Tulsi Went Down to Georgia, She Was Looking for a Vote to Steal.” This past week, the FBI executed a warrant to search Fulton County’s election center for ballots and equipment related to the 2020 election, with the help of an unlikely senior administration official: Director of National Intelligence Tulsi Gabbard, who was reportedly there in-person at the order of President Trump. Observers are concerned that the search is the beginning of a broader effort to relitigate the 2020 election—especially as Trump calls for Republicans in Congress to “nationalize elections” in advance of the November mid-terms. What do we know about the legal basis for this search? And what does it tell us about what the Trump administration has planned for November?
• “I Hear the Jury’s Still Out on the Fourth Amendment.” Over the past week, whistleblowers have revealed that ICE has issued a series of internal memos to agents advising that they do not need judicial warrants to detain or search the homes of people suspected of being undocumented immigrants. Instead, ICE has attempted to side-step the regular judicial process by suggesting that agents only need an administrative warrant, a controversial move that will almost certainly be challenged in court. What do we think of ICE’s decision to shift to such a legally dubious policy, and where do we expect it to go from here?
• “Ex Post Justification.” Last month, the FBI conducted a search on the home of Washington Post reporter Hannah Natanson as part of an investigation into alleged leaks by a Defense Department contractor. During the search, agents seized Natanson’s personal and professional devices, which drew concern from media outlets and civil liberty groups over potential First Amendment and privacy violations. A magistrate judge has now ordered that the FBI cannot access Natanson’s materials at least for now, while some of these issues are litigated. How should federal law enforcement balance the need to conduct leak investigations with press freedoms? And is this case on the right side of the line?

In object lessons, sometimes all you can do is cry: Molly is remembering better days for the Washington Post and mourning the fall of a once-great paper. Sometimes all you can do is get lost in the music: Mike is celebrating the still-great Miles Davis with the long-awaited release of The Complete Miles Davis Live at the Plugged Nickel 1965 on vinyl. Sometimes all you can do is laugh: Scott is delighting in his former State Department colleague’s new Substack, Ridiculocracy. And sometimes, all you can do is wear something fabulous: Troy is modeling the new wardrobe must-have for the “Government in Exile.”

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