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Why lawyers are ‘giggling’ at Trump’s new Fourth Amendment case

How bad is Team Trump's new court filing? A conservative professor said many actual lawyers “are giggling at Trump’s motion, and how poorly it was done.”


Late last week, Donald Trump used his Twitter-like platform to let us know some kind of legal filing was on the way. “A major motion pertaining to the Fourth Amendment will soon be filed,” the former president wrote, “concerning the illegal Break-In of my home, Mar-a-Lago, right before the ever important Mid-Term Elections.”

Putting aside the Republican’s idiosyncratic approach to grammatical rules, and his unsettling breaks with reality, the missive made it sound as if Trump and his hapless band of lawyers were prepared to make some kind of case against the Justice Department on search-and-seizure grounds. As NBC News reported, that’s what happened yesterday — sort of.

Former President Donald Trump asked a judge Monday to order the appointment of a special master to oversee the handling of the documents seized in the search of his Mar-a-Lago estate two weeks ago. The court filing also asks the judge to require the Justice Department to return materials not covered by the scope of the search warrant, which Trump’s team refers to as “overbroad.” The filing also calls the Justice Department’s decision to search the estate in Palm Beach, Florida, on Aug. 8 a “shockingly aggressive move.”

It might be tempting to scrutinize the filing as if it were a serious legal document, submitted in a credible way. That would be a mistake. Orin Kerr, a conservative law professor at UC Berkeley, noted overnight that many actual lawyers “are giggling at Trump’s motion, and how poorly it was done.”

The chortles are understandable. Team Trump’s court filing is a mess.

Among the many problems is the fact that it’s oddly late. The FBI executed its search warrant on Monday, Aug. 8. At that point, federal law enforcement officials reclaimed classified materials the former president brought to his glorified country club, taking stock of what he improperly took. Two weeks later, Trump’s lawyers went to court, apparently in the hopes that the FBI would stop reviewing the documents.

The idea that the FBI’s search was “shockingly aggressive” is even more difficult to take seriously. The Justice Department tried a series of lesser means, including subpoenas and in-person meetings in the hope of avoiding this step. When Team Trump refused to cooperate, the FBI went to court, obtained a search warrant, and executed it in the least aggressive way possible: The bureau sent plain-clothed agents who coordinated in advance with the Secret Service.

The former president keeps calling it an illegal “break-in” and “raid,” hoping that the public will imagine swarms of agents in tactical gear, pointing assault weapons at scared Mar-a-Lago customers. That’s plainly absurd.

Perhaps most entertaining was an accompanying written statement from Trump, which read in part, “This Mar-a-Lago Break-In, Search, and Seizure was illegal and unconstitutional, and we are taking all actions necessary to get the documents back, which we would have given to them without the necessity of the despicable raid of my home, so that I can give them to the National Archives until they are required for the future Donald J. Trump Presidential Library and Museum.”

Cutting through the thick layers of nonsense, the underlying point seemed to be that Trump, who took classified materials to his property and refused to give then back, wants the FBI to return the documents so that he can then turn them over to the National Archives — the agency that sought the materials in the first place, only to be rebuffed.

It’s hard not to wonder whether the court filing is a genuine legal effort or a political stunt designed for the next fundraising appeal and fodder for conservative media outlets.

That said, misguided court filings sometimes work, and in this instance, the case was assigned to U.S. District Court Judge Aileen Cannon — a Trump-appointed Federalist Society member, who was confirmed after Trump’s 2020 defeat, and who has a reputation as a far-right jurist.

Credible legal observers may be “giggling” at the filing, but Cannon may very well take the matter quite seriously. Watch this space.