The Mayor of Oakland has an FBI Problem

The FBI Raids and their Aftermath

(Jessica Christian/San Francisco Chronicle via Getty Images)

American politics is at a crisis point, teetering on the verge of some form of disaster.  Everyone with eyes can see.  This crisis of authority is most acute at the national level, where lies, conspiracy theories, and propaganda all live freely.  Corruption, both the perfectly legal appearance of corruption and self-dealing that the current system of campaign finance demands, and illegal bribery are like a growing dark cloud over America’s institutions.  I was disappointed recently to learn that this national example may have rubbed off on Sheng Thao, the Mayor of Oakland, California as well.

In my writing here, I will always seek to be non-partisan.  I want to write from an objective place, based solely on the facts, the law, and the way the system works and doesn’t work for society at large.  But I will point out individual politicians who I believe need to do better as I see them emerge.  And in the case of Oakland, a city I have lived and worked in and around for years, one doesn’t have to look very far.  

On June 20th, the Federal Bureau of Investigation, Internal Revenue Agents, and US Postal Service executed a search warrant at the Mayor’s home.  On the same day, the FBI also raided the homes and business of the Duong family, prominent Oakland political donors and the owners of the city’s garbage and waste disposal contractor (https://www.kron4.com/news/bay-area/oakland-mayor-thao-questions-motives-behind-fbi-raid/). 

The FBI and Department of Justice have not commented publicly on the nature and focus of their ongoing investigation.  By all accounts though, the warrants executed by the FBI at the Mayor’s home were lawful and signed by a federal magistrate judge.  It seems that the investigation may relate to alleged illegal third-party straw donations funneled by the Duong family to local politicians in an attempt to get around individual political  contribution limits, wire fraud, and mail fraud (https://oaklandside.org/2024/06/20/fbi-search-oakland-mayor-sheng-thao-andy-duong/). 

After the warrants were executed, the Mayor scheduled a press conference at City Hall.  At this point, the Mayor had a few choices.  She could use the press conference to publicly state that she would cooperate with the ongoing criminal investigation and then turn the focus back to Oakland and the quality of life issues that residents elected her to address.  Or, the Mayor could turn in another direction towards grievance and conspiracy in the vein of many right and left-wing politicians, in anger, in weakness, for whatever reason.  The Mayor chose the latter option. 

In her press conference, the Mayor stated that she is not the target of the federal investigation and castigated the FBI for failing to ‘give her the courtesy of a conversation’ and “notice” of the search warrant before it was executed (Thao's Speech).  She implied that the rich somehow are entitled to more notice of federal investigations than she is because she was “born poor” (Id.)  She implied that the FBI had not proven to her that they had probable cause to search her home and to seize property (Id.). But this was the least of it. 

The Mayor then strung together a vast series of implications into the makings of a conspiracy to oust her.  She said that an unnamed “handful of billionaires” from Piedmont and San Francisco, out of town, who had allegedly funded a recall campaign against her were now influencing the timing of the FBI’s raid of her home.  Stating that the recall campaign was certified only one day before the FBI’s search, and that local news cameras, Fox News and Breitbart somehow knew from inside sources that the raid was coming, she implied that the FBI was involved in and coordinated with a right-wing conspiracy to undermine and oust her as Mayor.  She plied for sympathy throughout her speech, casting herself as the victim.  She railed against law enforcement doing its job, although she herself oversees one of the largest police departments in the Bay Area and as a public official is entrusted to enforce and abide by the law at all times.  She generally decried the ‘injustice’ committed against her, but offered no evidence to prove any of her claims.  

That’s a lot, and I want to briefly discuss the basis, or lack thereof, for her comments. First, let’s talk about the search warrant.  Generally, federal criminal search warrants are issued to search for and seize (1) evidence of a crime; (2) contraband, fruits of crime, or other items illegally possessed; (3) property designed for use, intended for use, or used in committing a crime (Federal Rule of Criminal Procedure (“FRCP”) Section 41(c).)  If the FBI believes that the Mayor has any of these items in her home, she is likely the target of the investigation or at least implicated or associated in some way in activity that the government is investigating.  After all, if a person has evidence of a crime or contraband in their home, it’s usually because they participated in the underlying activity or at least had knowledge of it.  As stated above, this is likely related to some form of campaign finance fraud or mail or wire fraud. 

Moreover, as unpleasant as the execution of a search warrant always is, the target of the warrant is never entitled to notice of it.  This is for obvious reasons.  Where state or federal law enforcement seeks evidence of human or drug trafficking, for instance, nobody makes a phone call to the suspect to tell him a raid is coming.  If you’re foolish enough to give a heads up, say goodbye to your evidence.  

Finally, a federal search warrant may only be issued on a showing of probable cause by a disinterested and neutral judge (U.S.C.A. 4th Amendment; FRCP 41(d)(1).)  In a much quoted definition of probable cause, the United States Supreme Court stated that probable cause is "facts and circumstances within the police officer's knowledge "and of which they had reasonably trustworthy information…sufficient in themselves to warrant a man of reasonable caution in the belief" that an offense had been or was being committed (Brinegar v United States (1949) 338 US 160, 175–176; Quoting United States v Gosser (1964, CA6 Ohio) 339 F2d 102, cert den 382 US 819.)  

Further, a federal search warrant may only be signed off by a judge based on the presentation of an affidavit and supporting evidence under penalty of perjury that evidence of a crime or contraband is located in a particular place and is subject to seizure (FRCP 41(d).) A judge must issue the warrant if in fact there is probable cause for it (Id.) The person who owns the property subject to the search and seizure is not entitled to a copy of the affidavit underlying the warrant at the time of the search.  But the person whose property is taken is entitled to, and does receive, a copy of the warrant itself which details the items the police are looking for, and an inventory of any items seized (FRCP 41(f).)  After the search, the affidavit and evidence supporting probable cause, the warrant, and the inventory of items seized are each filed with the federal court from which the warrant was issued (Id.)  The judge retains a copy of the warrant and the inventory of property seized (Id.)

The Mayor made serious and conspiratorial accusations of corruption and political bias against federal law enforcement, but did not provide any evidence to back these allegations up.  Further, when pressed on whether she is the target of the investigation in a recent interview, she stated that she was not (Thao's Interview).  It is unclear how she would know this at this stage, only weeks after the raid, as the government tends to refrain from commenting about criminal investigations until they are completed.  It seems that the Mayor knows enough to exonerate herself, but not enough to tell anyone how she did so.

In relation to the warrant itself, the federal warrant process is highly regulated and subject to oversight and controls.  A judge had to review substantial and reliable evidence that there was in fact probable cause to believe that evidence of a crime would be found at the Mayor’s home.  We should all take this fact for what it is; an indication of some broader inquiry involving the Mayor.  By all public appearances the warrant that was executed on the Mayor’s home was lawful, although we have not yet seen a copy of the warrant that the Mayor surely received when it was executed, along with the property inventory.  

If the Mayor believes that something about the process was unlawful, or seeks to prove her allegations of government corruption, she can always seek relief in the courts.  She can file a federal civil rights action for violation of her Fourth Amendment right against unlawful search and seizure, and other tort and civil law claims against the government. 

But the Mayor has thus far chosen not to provide evidence of her claims of a vast right-wing conspiracy against her to the courts or to the public.  Instead, the Mayor has made these accusations without evidence, in the same manner as national conspiracy theorists on both ends of the political spectrum.  If she has any evidence for her claims, she should provide it.  The public is entitled to it.  The public interest demands it.  If she doesn’t have any evidence to support these claims, she should stop making them.

Unfortunately, as far as American politics goes, this is unhappily just more of the same.  Oakland is in dire shape. The City has a budget shortfall and violent crime is a major issue. The Mayor needs to do better, or resign.