Tuesday, September 06, 2022

Trump’s Fourth Amendment Arguments and the Mar-a-Lago Search

by Matthew Tokson

Following the FBI’s search of Former President Trump’s Florida estate, most attention has focused on Trump’s call for a special master to review the seized documents. Trump filed a complaint in federal court asking for the appointment of an external party to review each of the documents to filter out those that implicate executive or attorney-client privilege. As fate would have it, his case was assigned to Judge Aileen Cannon, a Trump appointee. Before the government's response brief was submitted, Cannon issued a preliminary order indicating her intention to appoint a special master. On Labor Day morning, she granted the request for a special master and and enjoined the DOJ from further reviewing any seized documents. At the least, Trump has succeeded in delaying the investigation and obtaining a thorough privilege review.

Ultimately, however, Trump's complaint is largely premised on Fourth Amendment claims rather than privilege claims. His strategic goals appear to involve scrutinizing the warrant affidavit, having the documents returned to him on the basis of a Fourth Amendment claim, and/or suppressing the documents in a subsequent prosecution. Trump says that, following the special master’s privilege determinations, he “will establish standing to contest the unconstitutional search.” This post evaluates the Fourth Amendment arguments that are the basis of Trump’s motion. 

The very first argument in Trump’s motion is that the search warrant obtained by the FBI for his estate was “facially overbroad” under the Fourth Amendment. This turns out to be an oddly narrow objection. Trump notes that the warrant permitted the seizure of, among other things, “Any physical documents with classification markings, along with any containers/boxes…in which such documents are located, as well as any other containers/boxes that are collectively stored or found together with the aforementioned documents and containers/boxes.” In other words, if agents found a classified document, they could seize the box that it was located in, plus any boxes stored along with that box. Trump objects to this last part, arguing that it makes the warrant too broad. He would limit the FBI to only those boxes containing obviously classified documents. 

The specificity of search warrants is not a frequently litigated issue, for several reasons. The particularity requirement is generally not rigorous, and countless courts have noted that it must be applied with a “practical margin of flexibility.” For example, in a complex investigation, extensive searches may reasonably be conducted in order to piece together the “puzzle” of criminal activity. And even sweeping statements in a warrant are generally not invalidated as overbroad; instead they are typically construed to allow the seizure of any documents relating to the crimes listed in the warrant.

Ultimately, the merits of Trump’s overbreadth claim come down to whether there was probable cause to believe that evidence of the suspected crimes would be found in boxes adjacent to boxes containing obviously classified documents. It’s very likely that there would be. First, the DOJ reported that it found 48 empty folders marked classified, indicating there are at least 48 loose classified documents floating around in Trump’s stored materials. It’s reasonably probable that some of these documents would be found in boxes adjacent to boxes containing the empty folders. This is especially so in light of the particular facts of the document storage at Mar-a-Lago, where “documents marked as classified were stored haphazardly, mixed with everyday items.” 

Second, the DOJ does not actually need to show that there was probable cause to believe that classified documents would be found in adjacent boxes. It only needs probable cause to believe that any government or presidential records that are evidence of the suspected crimes would be found in those boxes. For example, one of the suspected crimes was 18 USC § 2071, the willful concealment, removal, or mutilation of any government property. Any government document not belonging to Trump would be evidence of this crime, and there is very likely probable cause to believe that a box stored adjacent to a box of classified government records would contain additional government records. 

In any event, even if the warrant is ultimately determined to be overbroad, persons searched pursuant to a seemingly valid warrant can generally obtain no relief. The Supreme Court has established the “good faith exception,” which establishes that the government may introduce unlawfully obtained evidence if the police relied in good faith on legal authority such as a warrant or statute. So long as a warrant is not obviously facially deficient, police reliance on it will be deemed reasonable and the evidence will be introduced. A similar standard applies to claims like those contemplated by Trump, who states that he plans to file a motion for the return of unlawfully seized evidence under Federal Rule of Criminal Procedure 41(g). That rule was amended in 1989 to allow the United States to retain evidence seized in good faith reliance on a warrant. And the warrant at issue here was not obviously facially deficient—on the contrary, it would be somewhat shocking if a judge were to find it invalid. Even if Trump were to prevail on his overbreadth claim, he would have no remedy. 

Trump makes a few additional Fourth Amendment arguments. In passing, his brief invokes an old, long-since-overturned Fourth Amendment doctrine known as the “mere evidence rule.” This rule once prohibited the police from seizing evidence that was not contraband, an instrumentality of the crime, or fruits of the crime itself. Created in the 1886 case Boyd v. United States, it was formally abandoned in the 1967 case Warden v. Hayden, following decades of general disuse. Trump attempts to rely on this defunct doctrine, stating that “boxes of personal documents, photographs, and items such as clothing are by definition not contraband and thus may not be lawfully seized.” The court is likely to have little appetite for reviving this long-dead rule, which, among other things, would prohibit the police from obtaining search warrants for evidence of murders. There’s no legal problem with the police seizing “mere evidence” under a warrant. And personal items intermingled with classified documents may be useful evidence of record mishandling, because they establish who took the documents and how they’ve been handled.

Finally, Trump raises several vague questions about the validity of the search warrant and its underlying affidavit. He would really like to see this affidavit, which is likely to reveal witnesses and other sources of information that the FBI used to learn about the documents in his estate. His complaint suggests that the affidavit was probably riddled with material omissions and/or false statements, and if only he could see it, he could verify this. This actually raises an interesting question about how long the government can withhold an affidavit from the subject of an investigation who wishes to examine it and potentially challenge a warranted search. In general, affidavits are rarely disclosed before the government files charges, as doing so may compromise “the integrity and security of an ongoing criminal investigation.” And here, the case for delaying the disclosure of the affidavit while the investigation continues is strong. The unredacted affidavit would reveal the identities of several witnesses who could be subject to potential intimidation or retaliation. It also includes information about investigative techniques that could provide a roadmap for ways to obstruct the investigation. This may be important given that one of the crimes for which the warrant found probable cause is obstruction of justice. Finally, the unredacted affidavit would give the names of the law enforcement official or officials applying for the warrant. This would likely place those officials in danger, similar to the FBI agents who were publicly identified as carrying out the initial search and who received repeated threats of violence. No judge is likely to order DOJ to disclose the unredacted affidavit at this early stage of the investigation.

In short, regardless of how the special master rules on privilege issues, Trump’s Fourth Amendment arguments are weak, and the likelihood that he’ll succeed in getting the bulk of the documents back is extremely low. Trump may have other strategic reasons for filing this motion, including delay or publicity, but when it comes to the Fourth Amendment, Trump appears to be headed for a loss.