The New York Times recently reported that the FBI had an undercover informant amid the protestors that entered the US 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.