Dershowitz: Feds Used Search Warrant to Circumvent Trump's 5th Amendment Rights
The FBI raided former President Donald Trump's Mar-a-Lago residence as opposed to issuing a subpoena, because they wanted to circumvent Trump's Fifth Amendment rights – and seize anything they wanted – according to legal expert Alan Dershowitz on
Newsmax.
"I think I've figure it out; I think I know why they gave a search warrant rather than a subpoena," Dershowitz told Tuesday's "
The Record with Greta Van Susteren."
"Had they just subpoenaed any classified material, Trump could have claimed a Fifth Amendment, not as to the content of the material but the act of production – act of production, Fifth Amendment privilege.
"The government would have had to give him production immunity, but if they went in and did a search, then there's no Fifth Amendment because they just took the material. The material itself is not covered by the Fifth Amendment. It's only the act of production. Since he's a 1,000 miles away he had nothing to do with the production.
"So that's the excuse that they're going to give. They were circumventing the Fifth Amendment rights of Donald Trump."
Dershowitz, who has called a raid a last-resort option for the FBI, added to Van Susteren a search warrant is easily obtained through a judge, who signs off on them without much justification.
"For a search warrant, you go to Santa Claus and you say, 'Santa, it's Christmas, give me presents,'" Dershowitz said. "Every judge grants almost every search warrant request, and there is no judicial oversight to speak of for search warrants."
Dershowitz's remarks appear to stamp out allegations from the likes of House Speaker Nancy Pelosi, D-Calif., who suggested the FBI must have had "justification" to raid Trump's private residence. Dershowitz argued a search warrant has a very low bar.
"I've been doing this for 60 years, Greta: I don't remember a case where a judge turned down a search warrant," Dershowitz continued. "There must have been some, but not in my experience.
"And, if a judge turns down a search warrant, you just go to another judge and another judge and another judge. You can get to the eighth judge, if seven have been denied, you still get your search warrant."
Dershowitz doubled back to the Justice Department's reasoning for raiding Trump instead of issuing a subpoena.
"Search warrants are much more permissive than subpoenas," he continued. "Subpoena, you have to argue for something specific. Whereas, in a search warrant, anything in plain view – we know how FBI agents and police officers understand plain view: They'll search threw a drawer and see a document; they'll say that's in plain view and they'll seize it."
Ultimately, the FBI opened up the potential to use this raid to dig up further dirt on Trump for other potential case pursuits.
"They can use a search warrant designed to get only about classified information to get information about Jan. 6 as well," Dershowitz warned.
"I don't think they were looking for anything but trying to get Donald Trump."
Search of Trump's Florida Home Was 'by the Book,' Ex-prosecutors Say
The Justice Department's silence about its search of former President Donald Trump's Florida home is a sign of an investigation being run "by the book," former federal prosecutors insisted on Tuesday.
Trump disclosed on Monday that FBI agents were at his Mar-a-Lago resort in Palm Beach.
The search was part of the Justice Department's investigation into Trump's removal of presidential records considered official government property from the White House at the end of his term in January 2021. The department was notified this year that Trump had taken classified material after the National Archives, the agency tasked with preserving government records, revealed it had recovered 15 boxes of records from Mar-a-Lago, some marked as classified national security information.
The Justice Department and Attorney General Merrick Garland have said nothing about the search, not even confirming that federal agents were at Trump's property. Former federal prosecutors said that by remaining silent, the department is playing by rules intended to ensure fair treatment for targets of investigations.
"Their job is to conduct investigations in accordance with the law and to not prejudice the rights of the people they are investigating while they do it," said Kristy Parker, a former federal prosecutor now working with the advocacy group Protect Democracy. "What we are seeing is a by-the-book process, and that is a good sign that we have an independent Department of Justice."
President Joe Biden was not given advance warning of the search, according to a White House official.
Much is still unknown about the search warrant, which remains under seal, or the sworn statement that an FBI agent had to present to a magistrate judge to win court approval to search a former president's home.
"It's such an enormous, unprecedented thing to search a former president's home that I am confident they wouldn't do it unless they felt they had a pretty compelling reason," said former prosecutor Randall Eliason, who said he believes the Justice Department is wise to remain mum.
"They are not going to do this for some nickel-or-dime case involving a guest list from a state dinner that got improperly removed from the White House," Eliason said.
Trump's Republican allies in Congress have accused prosecutors of political foul play, with House Minority Leader Kevin McCarthy saying the Justice Department has "reached an intolerable state of weaponized politicization."
Garland has also received criticism from the left, with some Democrats calling for his department to be more aggressive in investigating Trump and the Jan. 6, 2021, attack on the Capitol by Trump supporters.
"I remain very concerned that Garland and (Deputy Attorney General) Lisa Monaco are not doing enough to hold the Jan. 6 higher-ups accountable," said Richard Signorelli, a former federal prosecutor who said he views Garland as an "extreme minimalist and cautious institutionalist."
"I do believe they dropped the ball," Signorelli added.
Former U.S. government attorneys with national security expertise said that a case involving Trump's removal of classified records could be a relatively simple one for the government to bring, compared with the greater legal challenges of trying to prove that Trump knowingly attempted to overturn the 2020 election and provoke the Capitol assault.
As one former government lawyer put it: "He has either got the top secret documents or he doesn't."
thehill.com
