Sunday Commentary: Trump Better Make a Move and Plead the Fifth Because He Can’t Plead the Fourth

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By David M. Greenwald
Executive Editor

Sometimes you just have to laugh in politics, and the idea that former President Trump is somehow going to make a “major motion” involving the Fourth Amendment over the FBI search of his home in Mar-a-Lago and get out of this legal mess is farcical but also ironic.

“My rights, together with the rights of all Americans, have been violated at a level rarely seen before in our country,” he posted on Friday.  Apparently he has not paid much attention to what rights have been violated over the last 50 to 60 years, often with a huge assist from the fellow conservatives that he has helped to stock on the courts.

Meanwhile, most legal experts scoffed at the possibility of any success with this so called “major motion.”

Former U.S. Attorney Harry Litman speculated in a Twitter post that Trump was likely referring to a motion to suppress evidence, which he noted, “people file once charged… but not before.”  He added, “He’ll surely lose.”

University of Texas law professor Steve Vladeck tweeted, “Wait until he finds out that #SCOTUS has made it virtually impossible to sue federal law enforcement officers for even egregious violations of the Fourth Amendment…”

University of California, Berkeley, law professor Orin Kerr quipped that he’s “hearing if Trump files a major motion, DOJ is planning a super mega opposition to the motion.”

George Gonway pointed out that the Fourth Amendment said search “warrants shall issue… upon probable cause.”

“It’s not your friend,” he tweeted.  “You’re better off sticking with the Fifth.”

How ironic that now that Trump is in legal hot water, he wants his Fourth Amendment rights—the very Fourth Amendment he has been helping to crush with his judicial appointees.

In fairness, this process began long before Trump was ever in the picture.

As Radley Balko pointed out in his book Rise of the Warrior Cop, from the 1960s on, Congress and the courts, often cheered on and abetted by conservatives, “have gutted due process protections, destroying the Castle Doctrine and virtually erasing the distinction between cops and soldiers.”

In his book, Balko argues that the Fourth Amendment ban on unreasonable searches and seizures is basically meaningless.

He writes, “In many jurisdictions, search warrants can be approved by magistrates who needn’t even have any legal training. A 1984 study of the warrant process in seven U.S. cities by the National Center for State Courts found that magistrates spend an average of two minutes and forty-eight seconds reviewing affidavits before (almost always) approving the warrant.”

We see no-knock raids on the wrong home, based on unreliable evidence and lies of law enforcement.  None of which of course happened in Donald Trump’s case.

In case after case since the 1960s, the courts have gutted the rights for protection from government misconduct.

For instance, in 2016, before Trump took office, the Supreme Court ruled in a 5 to 3 decision that evidence found by police officers after illegal stops may be used in court if the officers conducted their searches after learning that the defendants had outstanding arrest warrants.

Of course Trump wasn’t particularly worried about that.

Judge Thomas’ opinion drew a fiery dissent from Justice Sonia Sotomayor, who said that “it is no secret that people of color are disproportionate victims of this type of scrutiny.

“This case tells everyone, white and black, guilty and innocent, that an officer can verify your legal status at any time,” she wrote. “It says that your body is subject to invasion while courts excuse the violation of your rights. It implies that you are not a citizen of a democracy but the subject of a carceral state, just waiting to be cataloged.”

As one observer wrote, “If evidence can be used against you that is the result of an illegal stop by police, what’s to keep police from stopping you illegally?”  Or perhaps search your home illegally?

Suddenly, when Trump is on the short end of the stick, he’s worried about an overreaching government—but the courts have been eroding these protections for years and, if anything, the judges appointed by Trump exacerbated the problem.

That’s the real problem—the courts have so gutted the Fourth Amendment that it is of no protection when the government really does act with impunity.  In this case, the government likely went an extra mile to make sure they crossed all of the t’s and dotted the i’s.  That’s because they knew they were going to go after with someone with resources to fight to suppress any evidence and they knew there would be huge blowback if they got it wrong.

Experienced attorneys are running away from this case.

The Washington Post reported, “The former president’s current legal team includes a Florida insurance lawyer who’s never had a federal case, a past general counsel for a parking-garage company and a former host at far-right One America News.”

The Post reported that they have attempted to assemble a team of “respected defense lawyers,” but they keep getting a “no.”

“Everyone is saying no,” said a prominent Republican lawyer.

The article notes, “Longtime confidants and advisers of Trump have grown extremely worried about Trump’s current stable of lawyers, noting that most of them have little to no experience in cases of this type, according to two people familiar with the internal discussions.”

The article notes it may not just be legal issues: “Trump’s search is being hampered by his divisiveness, as well as his reputation for stiffing vendors and ignoring advice.”

“In olden days, he would tell firms representing him was a benefit because they could advertise off it. Today it’s not the same,” said Michael Cohen, a former lawyer for Trump who was convicted of tax evasion, false statements, campaign finance violations and lying to Congress in 2018. “He’s also a very difficult client in that he’s always pushing the envelope, he rarely listens to sound legal advice, and he wants you to do things that are not appropriate, ethically or legally.”

About The Author

David Greenwald is the founder, editor, and executive director of the Davis Vanguard. He founded the Vanguard in 2006. David Greenwald moved to Davis in 1996 to attend Graduate School at UC Davis in Political Science. He lives in South Davis with his wife Cecilia Escamilla Greenwald and three children.

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    1. Tim Keller

      If that was what actually was happening, it would definitely not be okay.

      Fortunatley for our republic, what IS actually happening is that we are proving that nobody is above the law.  That is 100% “okay”.

      garland was a notoriously moderate judge, and the head of the FBI is a bush appointee.   Those characterizing this as a partisan exercise are themselves creating the partisan exercise….  The irony is deep here…

      I would be more worried if the DOJ and FBI decided he couldn’t be investigated because of political optics.

    2. Walter Shwe

      The Honorable Mr. Attorney General Merrick Garland and the FBI are enforcing our nation’s laws. I guess Mr. Olson thinks the traitor Trump is above the law.

    1. Ron Oertel

      It is amazing, isn’t it?

      Somehow, Trump has been able to use stuff like this to his advantage, overall. You’d think that the first ride “down the escalator” (in the first campaign) would have done him in, when he described illegal immigrants in (let’s just say – not a positive manner). Not to mention the “grab them by the (censored)” comment.

      He could probably be sent to prison, and still win (at least among his core constituents). Seems to me that Hillary had a somewhat accurate moniker for (some) of those folks. (Certainly not all of them.)

      Then again, I’m not sure his ego can take losing to Biden, again.  (I’m not sure anyone’s ego can take losing to that guy, at this point.)

      I hope Trump runs, but not because I’m a supporter.  (I just like the chaos and entertainment he brings to a system that is somewhat corrupt.)   “Drain the swamp” (and fill it with your own swamp-monsters, I guess).

      Wondering where Giuliani is, in all of this.  I vaguely recall that he’s experiencing his own problems (other than hair dye running down his forehead).

      Overall  – yawn.  I’m not one to be too wrapped-up in “the raid”.  (I wonder why he allegedly took that stuff home in the first place.)


    2. Bill Marshall

      Reportedly, back in 1931, many friends of Al said, “I wish I had a dollar for every time the FBI folk have claimed they got Capone now.”

      Similar for a guy named Mussolini, who bears a striking resemblance, when scowling…

      As Patrick Henry said, (paraphrasing), “Capone had his Hoover, Mussolini had his public, and Trump… should have learned from their examples”.

      Hopefully, Trump and Melania won’t have the same fate of hanging from a lamppost… thinking more the Capone example…

      Might put your post in ‘con’text… time will tell…

      And, to remind, the FBI Director is a Republican and a Trump appointee… so, “Democrat” conspiracy is either a lie, or Wray has no spine. Take your pick…


  1. Bill Marshall

    Actually, Trump and his attorneys can plead whatever they wish…  doesn’t mean it will be successful…

    Title of article is misleading, as has been the person who is the subject matter…

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