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(Photo by Win McNamee/Getty Images)
Donald Trump’s crackerjack legal team has finally filed its promised “major motion pertaining to the Fourth Amendment.” In fact, it’s pretty light on “Fourth Amendment,” as well as discernible legal standards and facts. But no matter, because any lack of legal sufficiency is more than made up for in sheer, brazen batshittery. As per usual.
For two weeks after the FBI executed a search warrant on his Mar-a-Lago golf club, Trump’s lawyers sat on their hands as media and conservative outlets successfully sued to unseal the warrant and inventory, and maybe even parts of the underlying affidavit. To be fair, they didn’t sit — they ran to every conservative microphone in the country to accuse the FBI of planting evidence as part of a witch hunt to get Donald Trump. But they’ve kept up their record of not participating in the case before US Magistrate Judge Bruce Reinhart, instead filing a document yesterday styled as a “Motion for Judicial Oversight and Additional Relief” which was assigned to Judge Aileen Cannon, a Trump appointee.
This document is not a motion under Rule 41 for return of property. Nor is it a motion for a Franks hearing. It appears to be demand for a special master to sort through the evidence seized, as well as a grab-bag of requests designed to make the FBI tip its hand about the ongoing investigation, undergirded by the obligatory inveighing against Trump’s enemies and baseless accusations of a Deep State Witch Hunt.
The basis for these requests is a generalized complaint that the FBI doesn’t like Trump — there is actually a subheading that reads “The Government Has Long Treated President Donald J. Trump Unfairly” — and thus he is entitled to more oversight by the court than anyone else suspected of breaking the law. Pointing to the FBI investigation of his campaign back in 2017, Trump says that he is entitled to access the underlying affidavit, including information about witnesses and law enforcement officials involved. Despite the fact that FBI agents involved in the case have been doxxed and harassed, with the apparent support of Trump’s own counsel, he demands details of the ongoing investigation “to assess whether any FBI agents involved in the Russia defamation matter are participating with [the National Security Division] in the current situation.”
His lawyers also make the fairly bizarre claims that the former president has a right to assert executive privilege over documents which are the property of the National Archives and to block the Justice Department from accessing them as part of a criminal investigation. In fact, Trump already lost his bid to assert executive privilege and prevent Congress from accessing documents held by the Archives. But good luck convincing a court that the DOJ, which is a part of the executive branch, can’t see that stuff as part of a criminal inquiry.
There are no exhibits or supporting affidavits attached to this document. Which is good, in its way, because it’s full of patently false statements which no one should swear to. Such as “All facts laid out herein show that there was complete cooperation between President Trump, his team, and the appropriate agencies.” In reality, Trump spent a year refusing to hand documents over to the Archives and defied a grand jury subpoena in June for the return of all government property.
Similarly, Trump’s lawyers claim that the Justice Department was brought in “because the 15 [Archives] Boxes contained documents from his Administration that were protected by executive privilege.” As a May 10, 2022, letter from the National Archives to Trump’s attorney Evan Corcoran confirms, the DOJ got involved because the documents retrieved from Mar-a-Lago in February contained a significant quantity of classified material, including Sensitive Compartmented Information and Special Access Program documents. And Trump continued to retain such materials, which is why the FBI found more of them two weeks ago in that closet by the pool where Trump was stashing wrongly retained government property.
Other claims could charitably be described as “misleading,” such as the allegation that “the Government has refused to provide President Trump with any reason for the unprecedented, general search of his home.” In fact, he got a warrant which told him exactly which statutes he was suspected of violating, and we’ve all seen it, which is how we know he’s suspected of violating the Espionage Act. And it’s pretty ballsy to accuse Attorney General Merrick Garland of playing politics by releasing the warrant and inventory when Trump himself called for the DOJ to do just that, and, when given an opportunity to object to the unsealing, did not.
And while a demand for a special master to sort through the evidence seized isn’t totally crazy, the time to make that demand has probably passed, since the government’s filter team has probably already gone through whatever they took. Although mad props to Trump’s lawyer Alina Habba, who has camped out at the Newsmax studios all week long, and said that the delay was due to Trump’s well-known habit of being “so careful to try and respect the government and the systems which he once led.”
LOL.
In any event, after a couple of botched pro hac vice attempts, Judge Cannon appeared to be confused about the relief sought, and/or the basis for Trump’s demands. In an order posted to the docket this afternoon, she wrote:
The Court is in receipt of 1 Plaintiff’s Motion for Judicial Oversight and Additional Relief. To facilitate appropriate resolution, on or before August 26, 2022, Plaintiff shall file a supplement to the Motion further elaborating on the following: (1) the asserted basis for the exercise of this Court’s jurisdiction, whether legal, equitable/anomalous, or both; (2) the framework applicable to the exercise of such jurisdiction; (3) the precise relief sought, including any request for injunctive relief pending resolution of the Motion; (4) the effect, if any, of the proceeding before Magistrate Judge Bruce E. Reinhart; and (5) the status of Plaintiff’s efforts to perfect service on Defendant.
Turns out a federal judge, even one appointed by Trump, needs more than “Merrick Garland is mean!” before she’ll order the government to do something. Go know!
Trump v. United States [Docket via Court Listener]
United States v. Sealed Search Warrant [Docket via Court Listener]
Liz Dye lives in Baltimore where she writes about law and politics.
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