Trump’s Mar-a-Lago trial highlights how hard search warrants are to challenge — by a criminal suspect or an ex-president — until charges are laid

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Clark D. Cunningham, Georgia State University

(THE CONVERSATION) Some observers say the lawsuit filed by former President Donald Trump on August 22, 2022, challenging the recent FBI search of his Mar-a-Lago estate is “filled with explosive complaints” and will “explode in its Face.”.

I am a legal scholar who is an expert on the various Trump investigations and constitutional protections against unwarranted searches.

I think it’s important to recognize that the Trump lawsuit raises a very serious point: current federal law does not provide proper procedures to protect the rights of those subject to a search warrant.

The limits of the federal research law

The Constitution protects “the right of persons to the security of their homes and papers” and requires that search warrants must “particularly describe” the place to be searched and the items to be seized.

Trump’s lawsuit argues that these constitutional protections were violated both by the broad language of the search warrant and by the manner in which it was executed by the FBI.

Trump’s lawsuit asks a judge to halt the FBI’s review of what he seized at Mar-a-Lago and appoint an independent judicial officer to conduct the review instead.

Trump is also asking for a more detailed receipt of what the FBI took and for the agency to return any items not properly seized.

Granting these requests could be both fair to Trump and also in the public interest, bolstering public confidence in the management of the search, which has been criticized by Trump and his supporters as politically motivated, intrusive and overbroad.

However, as a similar lawsuit recently filed by one of Trump’s former attorneys, John Eastman, shows, those subject to a federal search have limited ability to challenge its legality.

Eastman’s cellphone was taken by federal agents as he left a restaurant in June 2022, amid a federal investigation into his alleged attempt to overturn the 2020 election results.

The search warrant authorized the seizure of “all electronic or digital devices and all information contained in such devices” without identifying the crime being investigated. Eastman challenged the warrant on the same grounds as Trump’s lawsuit, saying it allowed too broad a search of anything stored on his phone.

Eastman tried to get federal court to suspend the FBI’s examination of his phone by citing a federal rule of criminal procedure, or rule 41, which states that “a person aggrieved by a search and illegal seizure” may request the return of the seized property. In response, the government told the court that Eastman could only use Rule 41 to recover property for which he could demonstrate an urgent need. Eastman cannot use Rule 41 to challenge the constitutionality of the FBI’s seizure of his phone or to prevent law enforcement from reading attorney-client communications stored on the phone, the government said.

Trump’s trial faces the same problem. Outside of Rule 41, there is currently no clear way under federal law to challenge the validity of a search unless and until criminal charges are filed.

An often overlooked omission

This gap in federal law — and U.S. law generally — means that court cases involving searches almost always take place in the context of criminal prosecutions.

Since those who defend rights against unreasonable searches in court are usually accused or convicted criminals, the general public has paid little attention to the fact that search warrant proceedings constitute an exception to a fundamental principle of law. that people have the right to participate in legal proceedings concerning their rights.

As the government pointed out in opposing the disclosure of the FBI affidavit used to obtain the Mar-a-Lago warrant, federal courts routinely allow investigative records to be sealed to both the subjects of the investigation and to the public. A judge’s initial decision to issue a search warrant is almost always based solely on a unilateral government submission.

Not only do people who are the subject of a warrant sought have no chance to present their version to the judge, they are not even aware of the warrant process until the government is at the door, warrant in hand. And then, as Trump’s lawsuit claims, that secrecy continues after the search as the government examines what it seized.

Trump’s request for a “special teacher”

The FBI now uses a “contamination team” to search and seize classified documents at Mar-a-Lago. This is a special group of officers assigned to do an initial examination of seized materials.

These screeners then decide which documents can be handed over for further examination by FBI agents in charge of the actual criminal investigation. In Trump’s case, however, the standards for such a review are not public, and there is no evidence in the court record that any standards for review were submitted for court approval.

Although the criteria for review are clearly defined, the practice of using FBI agents for screening has been criticized by some courts as providing insufficient protection against the misuse of items seized in a search.

For example, a federal appeals court described filing crews as putting the fox in charge of guarding the henhouse. Even on the defilement team, FBI agents may still have a “prosecuting interest” that could lead them to hand over documents to investigators that should be shielded from government view.

This type of action, whether maliciously, negligently, or simply by honest mistake, can take place before the persons being searched have an opportunity to seek court protection for their records.

This court did what the Trump lawsuit is now asking – it ordered a temporary court officer, called a “special master”, to take over the initial review, to exclude documents that should not be seen by the government. .

There are other examples of commissioning someone to do such work. In 2018, for example, when federal agents executed search warrants against Trump’s former personal attorney, Michael D. Cohen, a retired federal judge was appointed special master to screen whatever was seized before that it cannot be handed over to prosecutors.

The rationale for placing an independent judicial officer between the FBI and the trove of documents seized at Mar-a-Lago is underscored by the general manner in which the search warrant was drafted.

The warrant not only authorized the FBI to seize classified documents, but it also allowed the FBI to seize “any other containers/boxes” that were “stored or found with” boxes containing classified documents.

This means that it is possible that some of the 26 boxes listed on the FBI property receipt were seized not because they contained evidence of a crime, but simply because they were stored in the same place as classified documents. Without something like the protections of a special master process, FBI agents could end up reading thousands of pages taken from Trump’s home that bear no relation to the alleged crimes listed in the warrant.

Perhaps now that the one-sided nature of search warrant proceedings is being challenged by a former president, this issue will receive new attention.

This article is republished from The Conversation under a Creative Commons license. Read the original article here: https://theconversation.com/trumps-mar-a-lago-lawsuit-spotlights-how-difficult-search-warrants-are-to-challenge-by-a-criminal-suspect-or – a-former-president-until-indicted-189271.

Robert M. Larson