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While many are calling for the release of the affidavit in the hope that it would show whether or not the search - and possibly the tactics related to the search - were lawful, it will in no way solve the problem of having a clearly biased prosecutor, nor whether the warrant and the search tactics, even if legally supported by the affidavit, would have been employed by a prosecutor who did not have a clear conflict of interest, argues Banzhaf.
Many lawyers and even laymen know that there is much truth in the old saying that a prosecutor can indict a ham sandwich. While it's not quite as easy to obtain a search warrant, it would not be difficult for a Justice Department lawyer to provide a barely legally valid basis in an affidavit to justify this search.
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But that doesn't begin to address the question of whether an investigation headed by someone with a bias against his boss' major political rival and presumed challenger for reelection, would have used a search warrant rather than, for example, first issuing another more specific subpoena, continuing to negotiate for voluntary release longer, etc. - which are matters of judgment rather than mere questions of law and legal sufficiency.
But assuming that the affidavit did meet the legal requirements for the issuance of a search warrant, its release will not even begin to answer whether an impartial prosecutor would have, for example, permitted Trump's attorneys to witness the search, to raise timely objections if any materials being seized might be protected by attorney-client or executive privilege, etc.
Even belatedly appointing an independent special counsel now would go a long way towards dispelling growing distrust over the incident because he would have the power to return all or some of the documents to Trump if appropriate and to make an impartial judgment, free of conflict of interest, as to whether any documents uncovered by the search would - as a matter of judgment as well as strictly legal requirements - warrant seeking an indictment against Trump.
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Moreover,appointing a counsel now would help to insure far broader support and less objection to any further actions taken as part of the investigation, including but not limited to any charges, offers to plea bargain, etc. which might result from the search or otherwise.
http://banzhaf.net/ jbanzhaf3ATgmail.com @profbanzhaf
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