Like, most Americans, I’ve followed the controversy attendant to the F.B.I.’s Raid on former President Trump’s home.  Adult responsible conduct seems to be lacking on all sides. Both before the execution of the Search Warrant and afterwards.  However, from the first reports, I’ve questioned why on Earth was the warrant issued by a Magistrate rather than a Judge and why is this low-level official allowed to continue to manage a fraught legal situation with such profound consequences for the nation.

Let’s be clear here.  Even though commentators and columnist continue to refer to this person as a Judge, he is not a Judge.  There are severe Constitutional questions concerning his power to act at all and I’ve included a recent article published in the Federalist that does an adequate job of highlighting the issues.

But the bottom line is that a Magistrate is not appointed by the President, he is not confirmed by the Senate, he does not meet the minimum qualifications required to act under Article III of the United States Constitution.     

A Magistrate is hired by and employed by Judges.  He is their employee.  In short, they may not delegate their Constitutional functions to a mere functionary.  A Federal Magistrate is simply the equivalent of a Traffic Court commissioner hired by Superior Court Judges in the State Court system to handle low level matters they are either too busy or too lazy or too arrogant to handle themselves.  Whatever the reason, you don’t turn over a major case to them.

Which brings up the other important point.  What kind of a Judge at the District Court level, would allow a low-level magistrate to handle this matter? Where is that Judge’s sense of responsibility?  What must he think about the importance of his or her role in the Justice system?   Is that person dumping off his or her responsibility to avoid controversy?  And, beyond that, what was the thinking of the Department of Justice lawyers who allowed the F.B.I. to take that warrant to a Magistrate rather than a real Judge?  One wonders.

Here is the article:  I have edited the article for length, but the full article can be found at the Federalist web site.  The Author is Phillip Hamburger.

“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. 

“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. 

“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?

“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.”

Indeed.