President Donald Trump’s claim that his “passports” were seized in the FBI raid on Mar-a-Lago last week could have major legal implications for any investigation into him: it could mean his Fourth Amendment rights were violated in the search.
As Breitbart News reported earlier Monday, former President Trump announced on Truth Social: “In the raid by the FBI of Mar-a-Lago, they stole my three Passports (one expired), along with everything else. This is an assault on a political opponent at a level never seen before in our Country. Third World!”
The unusual — and perhaps accidental — taking of Trump’s passports could mean that the Department of Justice (DOJ) would be unable to use at least some of the materials seized in the the raid in any prosecution of the former president. Already, it has risked violating his Sixth Amendment rights by seizing materials that may including privileged attorney-client communications, which are meant to be shielded from investigations.
The Fourth Amendment reads:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Typically, an individual’s passport would not be subject to seizure unless there were reason to believe he or she was a flight risk. An order authorizing the seizure of a passport would have to be approved by a court in most circumstances.
The search warrant under which FBI agents conducted the raid, with the approval of Attorney General Merrick Garland, does not list Trump’s passports as within the scope of the search; nor does it list the passports in the property register of seized items.
Trump could make a reasonable case in court that his Fourth Amendment rights have been violated, forcing the return of his passports, at the very least. A finding that the search exceeded the warrant could also affect its future use in court. However, the Department of Justice would still likely try to use information it obtained in the search to guide other investigations. The Trump team, or whoever was targeted in those investigations, would have to convince a court to exclude that subsequent evidence as “fruit of the poisonous tree” — i.e. information that was obtained only as a result of a violation of civil rights.
It is unclear which “passports” Trump has — whether a regular U.S. passport and a diplomatic one, or a foreign passport in addition to his U.S. passport. Trump’s grandfather was born in Germany, theoretically qualifying him for an EU passport.
Update: The DOJ claimed Monday evening that it was not in possession of Trump’s passports:
Trump spokesperson Taylor Budowich pushed back:
Joel B. Pollak is Senior Editor-at-Large at Breitbart News and the host of Breitbart News Sunday on Sirius XM Patriot on Sunday evenings from 7 p.m. to 10 p.m. ET (4 p.m. to 7 p.m. PT). He is the author of the recent e-book, Neither Free nor Fair: The 2020 U.S. Presidential Election. His recent book, RED NOVEMBER, tells the story of the 2020 Democratic presidential primary from a conservative perspective. He is a winner of the 2018 Robert Novak Journalism Alumni Fellowship. Follow him on Twitter at @joelpollak.