The New York Times recently reported that the FBI had an undercover informant amid the mob that entered the U.S. Capitol on Jan. 6 who had related to them his knowledge of the demonstrators' plans beforehand and his observations of events in the building in real time. The informant was a genuine member of the Proud Boys, one of the groups the feds are trying to charge with conspiracy to overthrow the government.
According to the Times, the informant told the FBI in advance that there was no plan by his colleagues to disrupt the government. He also reported violence and destruction in the Capitol to his FBI handler as it was happening, and the FBI did nothing timely to stop it.
The presence of the informant as a de facto federal agent at the scene before, during and after the commission of what the government considers to be serious felonies raises serious constitutional questions about the FBI's behavior. The feds have not revealed the existence or identity of this informant; rather, the Times' reporters found out about him and found another person to corroborate what they learned that he did.
Can the government insert a person into a group under criminal investigation — or "flip" a person who is already in the group — and use him for surveillance without a search warrant? And, when they do this, must prosecutors tell defense attorneys about their informant, particularly if his knowledge and observations are inconsistent with the government's version of events?
Here is the backstory.
The Fourth Amendment to the Constitution was written to protect the quintessentially American right to be left alone. It was enacted in the aftermath of egregious violations of colonial privacy by British soldiers and agents.
The typical violation of privacy came in the form of British soldiers knocking on the door of a colonial home — or breaking it down — bearing a general warrant. A general warrant, issued by a secret court in London or by colonial courts here whose judges were loyal to the king, permitted the bearer to search wherever he wished and seize whatever he found.
The Fourth Amendment was ratified to force the government to focus its searches on evidence of crimes for which the government had probable cause, and to protect the privacy and security of "persons, houses, papers, and effects" by requiring search warrants before the government could invade any of them.
The warrants must be issued by a neutral judge, must be based on probable cause of crime sworn to under oath, and must specifically describe the place to be searched and the person or things to be seized.
In the early 1960s, the Supreme Court realized that the use of electronic surveillance was just as much a search as a physical search, and it required search warrants for the government to be able to use at trial whatever it learned from the surveillance.
This is universally accepted today as the contemporary understanding of the Fourth Amendment. Yet, it applies only to searches by government agents or their use of evidence obtained from electronic surveillance. It does not pertain to informants.
Stated differently, the feds and the states need search warrants to bug your bedroom, your office or your cellphone, but they do not need a search warrant to threaten, bribe or employ your neighbor or colleague or brother-in-law to engage you in a conversation about personal behavior and then report the contents of that conversation to them.
The government's argument is that you have waived your right to privacy by trusting the person to whom you were speaking, and that waiver obviates the need for a search warrant.
But the use of an informant can be as invasive as the use of a wiretap. Because the informant is usually capable of getting in the face of the person being surveilled, his presence is a direct violation of the Fourth Amendment's protection of "persons."
Since the informant can often prod the person to say what he might not say if unprodded, the use of informants is arguably more invasive of privacy — and hence more violative of the Fourth Amendment — than a wiretap silently recording a conversation.
Now back to Jan. 6 at the Capitol. The Department of Justice requires approval by FBI management before an agent can engage an informant.
Thus, senior FBI personnel knew that a trusted member of the Proud Boys — trusted by the Proud Boys and by the FBI — had advised one of their agents that the group had no plans for violence or disruption of a governmental function. We also know that senior FBI personnel knew that personal injury and property damage were happening at the Capitol and they did nothing to stop it.
The Times reporters promised anonymity to their sources. But their identity is now of paramount importance to some of the folks whom the FBI has arrested and whom federal prosecutors have charged with felonies. If the feds have an eyewitness who works for them — even though his presence at the scene was unconstitutional — and whose testimony contradicts the prosecutors' narrative, the feds have a moral and legal obligation to reveal all this to defense counsel.
Who knows what the FBI knew of Jan. 6 ahead of time — and did nothing — or why it conveniently looked the other way during the events in the Capitol? We do know that every FBI agent and federal prosecutor has taken an oath to uphold the Constitution, whether convenient or not.
The Fourth Amendment is the framers' value judgment that the privacy of all persons is a greater moral good than the government's convenience. It is an intentional obstacle to law enforcement to keep it respectful of our rights.
Why do we hire the FBI to protect our safety but permit it to invade our liberty?
Judge Andrew P. Napolitano, a graduate of Princeton University and the University of Notre Dame Law School, was the youngest life-tenured Superior Court judge in the history of New Jersey. He is the author of five books on the U.S. Constitution. Read Judge Andrew P. Napolitano's Reports — More Here.