Today’s release of the affidavit, in redacted form, filed to support the search-warrant for Mar-a-Lago may both clarify and complicate debate over the legitimacy of the search. Team Trump has more information with which to work. But so does the mainstream media. The DOJ and Trump versions involve highly contested matters of fact and law that can only be resolved by a neutral and detached fact-finder—that is, a judge or jury.
The mixture of fact and law and its uncertainty may be exemplified with regard to the Magistrate Judge who approved the search warrant. A significant fact raises the possibility that he may not have been “neutral and detached” as the law requires. As previously noted and widely discussed by Trump’s lawyers and others, the Magistrate Judge had earlier recused himself in a lawsuit by Trump against Hilary Clinton, the Democratic National Committee, and others. Trump’s lawyers would naturally wonder whether the reason for the Magistrate Judge’s earlier recusal was that he felt he could not be neutral and detached. If so, they would also wonder what distinguishes that situation from the search warrant request.
In order to simplify matters for non-lawyers, this article focuses only on what we believe are the dispositive legal issues related to the warrant. Regardless of the affidavit, it appears that the search was illegal for two fundamental reasons: 1. On its face, the warrant itself (not the affidavit) fails the Fourth Amendment’s specificity requirement for issuing a search warrant; and 2) the Presidential Records Act should have barred the search. Thereafter, we provide some background and commentary.
The warrant itself seems to fly in the face of the Fourth Amendment, which requires that a warrant “particularly describe” the “things to be seized.” (emphasis added)
Though the Mar-a-Lago warrant states that the property to be seized includes “documents with classification markings”, it also allows federal agents to seize all of the contents of any boxes containing those classified materials regardless of what those other contents might be; together with any other boxes of documents located near any box with classified material; as well as “information” (whatever that might be) related to national defense or classified material. The warrant also allows agents to seize “any government records” and any “presidential records” (however they make that determination) and “any evidence” of the knowing “alteration, destruction, or concealment of” government records, Presidential records or classified documents.
A fishing expedition warrant such as this one—seeking the unknown contents of boxes, “information” related to something, and “any evidence” of something—would seem clearly to violate the Fourth Amendment. Overly broad warrants have been consistently struck down by federal courts.
David Rivkin and Lee Casey, former DOJ and White House lawyers during previous Republican presidencies, flatly state in the title of their Wall St. Journal (Aug. 22, 2022) Op-ed that “The Trump Warrant Had No Legal Basis.” As they explain in extensive detail, the Presidential Records Act (PRA) (effective since 1981) “explicitly guarantees a former president continuing access to his papers.” They are emphatic: “Nothing in the PRA suggests that the former president’s physical custody of his records can be considered unlawful under the statutes on which the Mar-a-Lago warrant is based.”
The PRA affords former presidents statutory rights in addition to their constitutional rights as citizens. Both DOJ and Team Trump apparently have overlooked the PRA, at least until the Rivkin-Casey article.
Team Trump is attempting to challenge DOJ’s actions prior to a possible indictment. Normally, a potential criminal defendant does not challenge a search as being unconstitutional unless and until after the person who was subjected to the search is indicted. Actions challenging warrants in such cases are traditionally brought as motions to suppress the evidence obtained through execution of the warrant.
Trump’s successful attempt to gain access to the affidavit used to obtain the search warrant as well as the motion to have the court appoint a special master are proactive efforts to undercut the natural advantages DOJ enjoys in pursuing its prey.
In special circumstances, federal courts may, and sometimes do, appoint a special master as a neutral party to sort through complicated matters on behalf of the court. Neither of us is aware of such an appointment in matters pertaining to law enforcement searches. But if special masters have been appointed to sort through law-enforcement searches, the process has been used extremely rarely, if at all.
Without having read the memorandum put forward by Trump’s lawyers, we don’t know their exact arguments. But Rule 41(g) of the Federal Rules of Criminal Procedure does provide a motion for return of property wrongfully seized. It is worth
noting that motions to suppress evidence in criminal cases grew out of motions seeking the return of private property improperly seized. That is, the Fourth Amendment originally focused on protecting private property.
Thanks to Progressives on the Supreme Court (notably Justice Brandeis), challenges to unconstitutional search and seizures morphed into a protection of a “right to privacy.” As a result, a drug dealer who cannot claim a “property right” in illegal drugs can nevertheless get courts to suppress (exclude) evidence of drugs seized in an unconstitutional search.
If it turns out that DOJ and the FBI engaged in an illegal search because their agents violated the PRA, the Fourth Amendment, or even just that they conducted an abusive search, two little known criminal statutes may be applicable to the federal agents. They are Sections 2234 and 2235 Title 18 of the U.S. Code. The first provides that “Whoever in executing a search warrant, willfully exceeds his authority or exercises it with unnecessary severity, shall be fined under this title or imprisoned not more than one year, or both.” (emphasis added). The second provides that “Whoever maliciously and without probable cause procures a search warrant to be issued and executed, shall be fined under this title or imprisoned not more than one year, or both.” (emphasis added).
These criminal penalties have rarely, if ever, been used. The Trump Administration potentially could have used, but did not use, the second statute when the Russia-collusion, FISA warrants were shown to have been fraudulently obtained. After executing its unprecedented search of the former President’s residence, DOJ better be able to establish beyond any doubt that the search was justified and, more particularly that the search did not run afoul of Sections 2234 or 2235. Those responsible could possibly be prosecuted under the president to be elected in 2024 because the statute of limitations for both offenses is five years.
In America, all government officials are expected to conduct themselves in accord with the Rule of Law. The impartial and equal application of the law, however, is an ideal that is never fully achieved. Nevertheless, what we have witnessed in recent years is the Left pursuing power politics in ways that have increased the gap between the actual application of law and the rule-of-law ideal.
Nevertheless, Trump supporters and others angered by the search must resist any temptation to respond in a spirit of revenge. Many of our country’s Founders recognized that our form of government depends on public morality. Like them, we should work and pray to prevent descending into a lawless chaos that has come to characterize certain third-world countries which pretend to be democracies.
NOTE: John S. Baker produces a short video podcast about constitutional issues,
explained for non-lawyers, “The Baker Brief,“ available on YouTube and Rumble.
John S. Baker, Jr., Ph.D., Professor Emeritus, LSU Law School
Former Assistant District Attorney, New Orleans
Peter M. Thomson, of Stone Pigman Walther Wittman, New Orleans,
Former Assistant U.S. Attorney, New Orleans.