When President Joe Biden said “journalism is not a crime” last April, federal prosecutors in Tampa, Florida, apparently took that as a challenge. Not a crime yet.

The next month, FBI agents raided the home of journalist Tim Burke. He is scheduled to be arraigned in the coming weeks under the Computer Fraud and Abuse Act (CFAA) and wiretap laws for finding and disseminating unaired Fox News footage of Kanye West’s antisemitic rant to Tucker Carlson. The indictment doesn’t accuse Burke of hacking or deceit. Instead, its theory is that he didn’t have permission to access the video, even though it was at a public, unencrypted URL that he found using publicly posted demo credentials.

But finding things that the powerful don’t want found is essentially the definition of investigative journalism—which, as Biden said, is not criminal in this country.

A recent court filing heightens concerns about whether prosecutors hid from the judge who authorized the raid that Burke was a journalist. By doing so, they may have avoided scrutiny of whether their investigation—and eventual indictment—of Burke complied with the First Amendment, federal law, and the Department of Justice’s own policies.

The case is reminiscent of last year’s alarming raid of the Marion County Record. Authorities there ignored laws like the federal Privacy Protection Act of 1980, or PPA, which largely prohibits rummaging through journalists’ files. But that was a local police department in rural Kansas. Burke’s case involves the FBI and DOJ, who should clearly know better.

Burke’s filing says prosecutors referred to Burke as a “former journalist” in their affidavit to get their warrant. (That document remains sealed from the public; it should be released.) That’s a head-scratcher: After all, the whole case arises from him breaking national news.

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