Can Magistrate Judges Constitutionally Issue Search Warrants Against Trump (Or Anyone Else)?
By: Philip Hamburger
August 26, 2022
The Mar-A-Lago warrant illustrates the long-standing constitutional anomaly of letting magistrate judges sign search warrants.
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 JudgeThe 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.
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https://thefederalist.com/2022/08/26/can-magistrate-judges-constitutionally-issue-search-warrants-against-trump-or-anyone-else/
