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Following the FBI 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. Judge Aileen Cannon, a Trump appointee, granted this request on Monday morning and enjoined the Justice Department 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. What are those claims? And what are the strategic reasons why Trump is raising them in the first place? While his attorneys have been criticized as inept, they raise some fairly novel Fourth Amendment arguments worthy of attention. If successful, these claims could lead to the return of seized documents to Trump or the suppression of all of the documents in a subsequent prosecution. And whatever the weaknesses of the attorneys’ arguments, their approach is well-suited to serve broader strategic goals. Ultimately, a central purpose of the litigation appears to be obtaining “an unredacted copy” of the affidavit that provided support for the search warrant. That affidavit could reveal the Justice Department’s sources of information inside of Trump’s organization and Mar-a-Lago, and its disclosure may compromise the government’s ongoing criminal investigation.
