Trump’s ignoring legitimate legal recourse — that speaks volumes
Former President Donald Trump has characteristically growled, yapped and roared against the FBI’s execution of a warrant issued by an independent federal judge authorizing a particularized search for evidence of crimes in his Mar-a-Logo residence — potentially destruction of presidential records or unauthorized sharing of classified information. Trump’s appointee, FBI Director Christopher Wray, who was confirmed by a 92-5 Senate majority with only Democrats in opposition, supervised the search.
Actions speak louder than words. Trump has scampered away from available immediate legal challenges to the FBI search — a tacit concession that his semi-hysterical histrionics are sound and fury signifying nothing.
Rule 41 (g) of the Federal Rules of Criminal Procedure authorizes Trump to file suit demanding a return of all materials seized by the FBI at Mar-a-Lago by proof that the search warrant or its execution was legally defective. The text is clear to persons unschooled in the law: “A person aggrieved by an unlawful search and seizure of property or by the deprivation of property may move for the property’s return…The court must receive evidence on any factual issue necessary to decide the motion. If it grants the motion, the court must return the property to the movant.” None among the former president’s long roster of lawyers has questioned the legality of the search under Rule 41 (g).
A valid search warrant requires the issuing judge to be neutral, and that probable cause exists to believe that evidence of a crime will be discovered in the places to be searched. Fishing expeditions or raids are unconstitutional. The Fourth Amendment requires warrants to “particularly [describe] the place to be searched and the persons or things to be seized.”
Furthermore, under Criminal Rule 41 (f), the FBI must prepare an inventory of the property seized and the “officer executing the warrant must give a copy of the warrant and a receipt of the property taken to the person from whom, or from whose premises the property was taken.” On Thursday via social media, Trump requested the release of documents related to his search warrant — after Attorney General Merrick Garland announced the Justice Department had petitioned courts to unseal the documents.
Additionally, under the decision of the United States Supreme Court in Bivens v. Six Unknown Agents (1971), Trump could sue FBI agents for damages for violation of his Fourth Amendment rights either in executing the search warrant or intentionally lying to establish probable cause.
It speaks volumes that Trump has balked at seeking an adjudication of the legality of the Mar-a-Lago search either under Rule 41 or in a Fourth Amendment damages suit. Maybe he learned something from losing more than 60 lawsuits challenging the 2020 presidential elections.
Contrary to uninformed caterwauling by Trump and his echo chambers, he has been treated with kid gloves compared with President Richard Nixon.
In February 1974, Nixon was named by a federal grand jury as an unindicted co-conspirator in the cover-up of the Watergate burglary. Subpoenas were issued for presidential tapes, including for a critical, allegedly incriminating, conversation on June 20, 1974. But the tape contained an 18 and a-half-minute gap, which chief of staff Alexander Haig attributed to an anonymous “sinister force.”
Considering this history, it would have been prosecutorial malpractice to have issued a subpoena for Trump’s boxes of presidential papers in lieu of a search warrant — especially because of Trump’s notoriety for flushing presidential documents down the toilet.
After resigning, Nixon remained vulnerable to prosecution until President Gerald Ford’s pardon on Sept. 8, 1974. But that did not end Nixon’s Watergate travails. In 1975, Nixon testified under oath for 11 hours before a federal grand jury, questioned by the special Watergate prosecution force.
Trump’s signature fact-free and law-free defenses — witch hunts and a Democratic Gestapo — was recently rejected by a 3-0 panel of the United States Court of Appeals for the District of Columbia Circuit in Committee on Ways and Means v. Trump. The court sustained the constitutionality of the committee’s statutory right of access to Trump’s tax returns.
Even if Trump’s treatment has been unique, so has been his frontal assault on the Constitution. He proclaimed in the manner of Napoleon’s self-coronation, “Then I have Article II, where I have the right to do anything I want as president.” With that said, Trump routinely flouted the law. According to his national security advisor John Bolton, “The pattern [of Mr. Trump’s actions] looked like obstruction of justice as a way of life.” Like the Supreme Court’s conclusion in Nixon v Administrator of General Services, sustaining the Presidential Recordings and Materials Preservation Act expressly targeting former President Nixon, Trump constitutes a “legitimate class of one.”
America fought a revolution to make the rule of law king, not to make a king the ruler of law. Trump is orchestrating a counterrevolution against that hallowed success. As Benjamin Franklin noted at the conclusion of the constitutional convention, the delegates gave us a Republic, but it is up to us to keep it.
Bruce Fein was associate deputy attorney general under President Reagan and is the author of “Constitutional Peril: The Life and Death Struggle for Our Constitution and Democracy.”