Old but important article on search warrants!
Trump’s Mar-A-Lago Lawsuit Spotlights How Difficult Search Warrants Are To Challenge – By A Criminal Suspect Or An Ex-President – Until Charges Are Brought
Aug. 24, 2022.1/2
Some observers say that the lawsuit filed by former President Donald Trump on Aug. 22, 2022, challenging the FBI’s recent search of his Mar-a-Lago estate is “filled with bombastic complaints” and will “blow up in his face.”.
I am a legal scholar who is an expert on the various Trump investigations and the constitutional protections against wrongful searches.
I think it is important to recognize that Trump’s lawsuit raises a very serious point: Current federal law does not provide good procedures to protect the rights of people subjected to a search warrant.
Federal law’s limits on searches
The Constitution protects “the right of the people to be secure in their houses and papers” and requires that searchwarrants must “particularly describe” the place to be searched and the things to be seized.
Trump’s lawsuit asserts that these Constitutional protections were violated both by the broad language of the search warrant and the way it has been carried out by the FBI.
Trump’s lawsuit asks for a judge to halt the FBI’s review of what it seized from Mar-a-Lago and the appointment of an independent judicial officer to conduct the review instead.
Trump also asks for a more detailed receipt of what the FBI took, and for the agency to return all of the items not properly seized.
__Granting these requests might both be fair to Trump and also in the public interest___, by bolstering public confidence in the handling of the search, which has been criticized by Trump and his supporters as politically motivated, intrusive and overbroad.
However, as shown by a similar lawsuit recently filed by one of Trump’s former lawyers, John Eastman, people who are subjected to a federal search have limited ability to challenge its legality. Eastman’s cellphone was taken by federal agents as he was leaving a restaurant in June 2022, amid a federal investigation into his alleged attempt to overturn the 2020 election results.
The search warrant authorized seizing “any and all electronic or digital devices and all information in such devices”without identifying what crime was being investigated. Eastman challenged the warrant on the same grounds as Trump’s lawsuit, claiming it authorized an overbroad search of everything stored on his phone.
Eastman tried to get a federal court to halt FBI examination of his phone by invoking a Federal Rule of Criminal Procedure, or Rule 41, which says“a person aggrieved by an unlawful search and seizure” may seek return of the seized property. In response, the government told the court that Eastman can only use Rule 41 to recover property for which he can show an urgent need. Eastman cannot use Rule 41 to challenge the constitutionality of the FBI seizing his phone or toprevent the law enforcement agencyfrom reading attorney-client communications stored on the phone, the government said.
Trump’s lawsuit faces the same problem. Apart from Rule 41, there iscurrently no clear way under federal lawto challenge the validity of a search unless and until criminal charges are filed.
An often overlooked omission
This loophole in federal law– and American law generally– means that court cases about searches are almost always in the context of criminal prosecution.
Because those making court arguments for rights against improper searches are usually accused or convicted criminals, the general public has paid little attention to the fact thatsearch warrant procedures are an exceptionto a fundamental principle of American law, which is thatpeople have the right to participate in judicialproceedings regarding their rights….
https://cobbcountycourier.com/2022/08/trumps-mar-a-lago-lawsuit-spotlights-how-difficult-search-warrants-are-to-challenge-by-a-criminal-suspect-or-an-ex-president-until-charges-are-brought/