Donald Trump is so aggrieved by the massive infringement on his Fourth Amendment rights that he’s come out guns blazing, promising a “major motion” addressing this egregious abuse, the atrocious action, the punitive acts, and all other BAD words, soon. As is typical, Trump continues to violate the rule regarding under-promising and over-delivering. On this one, he might shatter a record for “not delivering.”
The government uses warrants to collect evidence in most criminal cases. It is how the government is designed. The Fourth Amendment protects us against “unreasonable searches and seizures.” A judge determines whether the prosecutor’s facts and rationale are reasonable or unreasonable. But, given that law enforcement is key to an orderly society, prosecutors are awfully good at getting these warrants by now, having done it a couple of hundred years.
For an experienced prosecutor working with good honest police officers (and most are), it is harder to mess up an affidavit for a warrant than it is to do it competently. Most could do one at 2:00 a.m. if dragged out of bed, which happens occasionally. Unfortunately for Donald Trump, the affidavit for this warrant wasn’t put together at 2:00 a.m. by a new prosecutor. The affidavit for this warrant was likely put together in pieces over a month, based upon some of the best FBI agents available, then crafted by some of the best federal prosecutors in the government, and then checked over by Merrick Garland himself, a former prosecutor and former chief appellate court judge of the DC Circuit. If there was ever an affidavit more perfectly tailored to survive a staunch test, this is surely it. The federal magistrate, who obviously knew that he held in his hands what might be the most consequential affidavit in history, decided that, yes – he would put his name on the most consequential warrant in history, even as he had to know it would threaten his life.
And yet, here is Trump – ever confident and full of bluster, believing he can win this case in the media using his political strength. Unfortunately, the bluster may win him the war in the end (and it will take a war), but it’s not going to help him with the court or the coming filings:
A major motion pertaining to the Fourth Amendment will soon be filed concerning the illegal Break-In of my home, Mar-a-Lago, right before the ever important Mid-Term Elections. My rights, together with the rights of all Americans, have been violated at a level rarely seen before in our Country. Remember, they even spied on my campaign. The greatest Witch Hunt in USA history has been going on for six years, with no consequences to the scammers. It should not be allowed to continue!
George Floyd has his rights violated at a level rarely seen before, not Donald Trump. Just sayin’.
The very fact that the FBI had a warrant means that the “break in” wasn’t a “break in”; it was a search, and the fact that the FBI had a warrant means it wasn’t “illegal.” It could be found to be “unconstitutional” (highly, highly, unlikely), but it will never be “illegal.”
There are only two things that Trump could file in response to the search. If Trump is actually going to file a “motion,” then he has to file the “motion” in the criminal case against him. Unfortunately for Trump, one usually doesn’t file motions to quash warrants until he or she is charged with a crime. Until then, there is no evidence to quash under the search warrant. If and when charges are filed, then – yes, he will certainly file a motion to dismiss it based on a problem with the search. But again, prosecutors are really good at surviving inevitable motions to quash. This one is going to make it through. The FBI found the documents they said they’d find. They had very very good and corroborated reasons to know they were there, or they wouldn’t have asked for the warrant. Regardless, even if Trump’s “major motion” is filed, it won’t be until down the road.
The other thing Trump could do is file a lawsuit against the agents and FBI under the Federal Tort Claims Act and what’s called a “Bivens” action. Unfortunately for Trump, the mighty SCOTUS that Trump largely put together just ruled (In June, no less) that these are all but impossible to win. For those interested in just how hard it can be, and will be for Trump, this is taken from the case linked:
But that does not bear on the relevant point: Permitting
suit against a Border Patrol agent presents national security concerns
that foreclose Bivens relief. Further, the Court of Appeals’ analysis
betrays the pitfalls of applying the special-factors analysis at too granular a level. A court should not inquire whether Bivens relief is appropriate in light of the balance of circumstances in the “particular case.”
United States v. Stanley, 483 U. S. 669, 683. Rather, it should ask
“[m]ore broadly” whether there is any reason to think that “judicial
intrusion” into a given field might be “harmful” or “inappropriate,” id.,
It is very, very hard to win any Bivens case, but given that there is NO way to win one if the government can implicate “National Security Concerns,” it would seem as though the fact that the FBI walked out with f’ing Top-Secret/SCI documents pertaining to nuclear weapons (!!!!), Trump is not only set-up perfectly – literally – to lose; he might lose better than anyone has ever lost a federal tort claim action. Hey, Trump always wants to be the best, and this could easily be construed as the single best loss in history. If filed…
No, Trump sent out the tweet (It cannot be called a “truth”) for one reason, and that is to scream and threaten. He does this because the one way Trump can win is the same way he always wins. He makes it so politically impossible to hold him accountable that no one will do it.
Unfortunately for Trump, the government almost has to indict him this time, and it is, in fact, time to hold him accountable, hard as it might be, violent as it might be. As discussed in another article on this site, “Not Prosecuting Trump” hasn’t worked a single time. It is worth trying a different tactic. If they won’t? They might as well cede the nation. including the nuclear weapons, over to the MAGA army.
Meanwhile, let him file whatever he wants. Any lawyer that signs something, though, best remember Rule 11… which is a whole other post.
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