Fox News and other right-wing media outlets have claimed that the FBI and the Justice Department violated former President Donald Trump's Fourth Amendment rights during the August 8 search of his Mar-a-Lago residence, but legal experts dispute this claim.
On August 8, the FBI executed a judge-approved search warrant as part of ongoing investigations into Trump’s possible mishandling of classified documents and presidential records. Earlier this year, reports surfaced that the National Archives and Records Administration had retrieved 15 boxes of White House records from Mar-a-Lago in January, some of which contained classified materials. After months of back and forth between the FBI and Trump — which included FBI and DOJ investigators visiting Mar-a-Lago and the issuance of a subpoena to Trump in pursuit of documents that federal investigators “believed he had failed to turn over earlier in the year” — the agency finally got a search warrant approved by a Florida judge, which led to the August 8 search.
In response to these events, right-wing media have downplayed the seriousness of Trump’s potential wrongdoing, pushed false claims and baseless conspiracy theories, fearmongered that the Justice Department and the FBI have been weaponized against Trump, and now are claiming that law enforcement violated the former president’s Fourth Amendment rights against unreasonable search and seizure, despite the fact that the FBI had a warrant for the search.
Right-wing media figures and Trump allies have claimed that the search violated his Fourth Amendment rights because the warrant was “too broad”
- On Life, Liberty & Levin, Fox contributor Leo Terrell called the day of the Mar-a-Lago search “one of the darkest days in America's history.” He went on to claim, “The Constitution was trampled upon. The Fourth Amendment was ignored. And I want to make sure people understand this: This is not about the rule of law. This is about political power from the extreme left.” [Fox News, Life, Liberty & Levin, 8/14/22]
- A frequent guest on Steve Bannon’s show, former Trump adviser Boris Epshteyn claimed that the FBI’s seizure of Trump’s passports constitutes a “huge violation of the Fourth Amendment.” When Bannon claimed that the FBI’s search of Mar-a-Lago was “nothing more than a fishing expedition,” Epshteyn replied, “It's been proven beyond any doubt that the DOJ has overstepped in a way that really has never been precedented in American history.” He added, “We've got specific sections of the U.S. Constitution that have been implicated and violated, and the passports prove that further and further and further.” [Real America’s Voice, War Room: Pandemic, 8/15/22]
- On The Ingraham Angle, Trump attorney and former OAN host Christina Bobb accused the FBI of being “flippant” when “Fourth Amendment rights are at stake.” Bobb said of the FBI’s search, “I think this goes to show the level of audacity that they have. If you're going to execute a raid on the primary residence of the president of the United States, you need to do it perfectly.” She added, “I don't give them a pass as this was a simple mistake. I think it goes to show how aggressive they were, how overreaching they were, that they were willing to go past the four corners of the warrant and take whatever they felt was appropriate or they felt that they could take.” [Fox News, The Ingraham Angle, 8/15/22]
- On The Glenn Beck Program, Glenn Beck accused the FBI of using an unconstitutional “general warrant,” comparing it to what “the king was doing” to us before the American Revolution. In a pseudo-history lesson, Beck went on to say “anyway, the king just said, general warrants. And so any cop, anybody could just go, I got a general warrant here from the king. And they could go into your house and take anything they wanted and just say, you're under suspicion. That's why the Fourth Amendment exists. This is what happened to Donald Trump.” [TheBlaze, The Glenn Beck Program, 8/15/22]
- On Fox & Friends, co-host Will Cain suggested the search may have violated the Fourth Amendment and given Trump “claim to an undue search and seizure.” Cain claimed, “A warrant should be narrowly tailored to a specific investigation. You can't go in broadly saying, we'll find what we find and see what it leads to with other criminal investigations. Normally that is not -- that would give President Trump … a Fourth Amendment claim to an undue search and seizure.” [Fox News, Fox & Friends, 8/16/22]
- On Hannity, Fox News Host Mark Levin called the search warrant “extremely broad” and therefore “unconstitutional.” He went on to say, “this language, in and of itself, in this warrant, violates the Fourth Amendment of the Constitution.” He also said that the search was an “unprecedented” act by the “cabal of Stalinist leftists at the Department of Justice that will stop at nothing to destroy this country.” [Fox News, Hannity, 8/17/22]
- On Sunday Morning Futures, former attorney general for the second Bush administration and recurring Fox News guest Michael Mukasey said that the search warrant “was not particular.” He described the warrant as “completely unfocused,” authorizing “the seizure of just about every piece of paper there.” He also said that James Madison, who wrote the Fourth Amendment, “must be twirling in his grave like a pinwheel.” [Fox News, Sunday Morning Futures, 8/14/22]
- On Fox & Friends Weekend, former assistant U.S. attorney for the Southern District of New York and Fox News contributor Andrew McCarthy said that it “shouldn’t surprise anyone” that the FBI potentially seized “attorney-client privilege and maybe even executive privilege materials.” McCarthy also said the FBI “did something that's really closer to a general warrant, which allowed them to take every shred of paper that was generated through the four years of the Trump administration.” [Fox News, Fox & Friends Weekend, 8/14/22]
Right-wing media figures and Trump allies have claimed that Trump “should go on offense” and “challenge” the search
- On Fox & Friends Weekend, former Trump White House attorney May Mailman said that if the FBI seized documents protected under attorney-client privilege, Trump “should go on offense” because the search “is a violation of his Fourth Amendment rights.” In response to claims that some of the documents seized by the FBI were covered by attorney-client privilege, Mailman said Trump “has a huge defense and then also offense.” She explained, “So defense, I would say, suppress everything from the search. You can basically invalidate the search and then have a more structured process. And then offense, I would say that this is a violation of his Fourth Amendment rights. This is an unreasonable search and seizure, and he should go on offense there.” [Fox News, Fox & Friends Weekend, 8/14/22]
- Cain said Trump can “challenge” the search as a “violation” of the Fourth Amendment. Cain said on his podcast that he doesn't believe the search “was ever about classified documents” and that he doesn’t believe that anyone is “really concerned about the Espionage Act,” but rather that the search “was a fishing expedition” aimed at finding “anything incriminating” about Trump. He also claimed that because the warrant was “so broad,” that “Trump doesn't just have to play defense, he can possibly play offense. He can challenge this as a violation of a Fourth Amendment.” [Fox News, The Will Cain Podcast, 8/15/22]
- On One America News Network, Trump ally Alan Dershowitz said the search would be unjustified “even if there were nuclear secrets.” Dershowitz argued that the Justice Department should have enforced the outstanding subpoena rather than conduct a federal search, saying, “You can't evade a subpoena. You can challenge parts of it under the Fifth Amendment grounds, on Fourth Amendment grounds, you can challenge it on grounds of privilege, but you know, the purpose of government is not to circumvent the Constitution and get around the Fourth and Fifth and Sixth Amendments by searching, it’s to enforce the Constitution.” [OAN, 8/15/22]
Legal experts have disputed the claim that the Mar-a-Lago search violated the Fourth Amendment
- On Twitter, Berkeley Law professor Orin Kerr explained why claims that the warrant used to search Mar-a-Lago was a general warrant that violates the Fourth Amendment are “incorrect.” According to Kerr, it’s “the norm for the government not to know the exact form of every document they’re looking for.” Citing 1976 Supreme Court case Andresen v. Maryland, he stressed, “limiting the scope of the search by naming a particular form the records might take” doesn’t make the warrant general. [Twitter, 8/14/22]
- On Morning Joe, former U.S. District Attorney Chuck Rosenberg described the FBI’s search as a “very big deal, unprecedented, but done lawfully and properly through a neutral and detached judge in another branch of government.” He explained that the FBI only searched the home of the former president because it had “probable cause to believe a crime had been committed,” calling this “the Fourth Amendment standard.” He has elsewhere said that federal prosecutors “often put in much more detail than the Fourth Amendment would require,” noting that “with a warrant like this, for a search target like Mr. Trump,” he’s “convinced that this would be an exhaustive recitation of facts. Everything the government has.” [MSNBC, Morning Joe, 8/9/22]
- In the Houston Chronicle, former U.S. District Court Magistrate Judge Brian L. Owsley argued that none of Trump’s supporters decrying the search have “pointed to any concrete Fourth Amendment violations in the warrant.” He explained that “if somehow the oversight and review by the FBI and the Department of Justice as well as the magistrate judge’s analysis all failed,” then Trump “could have gone to federal court seeking to quash the search warrant with arguments that it violated the Fourth Amendment.” But he and his legal team “did not choose to have a federal judge immediately review the warrant’s constitutionality, which likely indicates that nothing readily appeared to be unconstitutional.” [Houston Chronicle, 8/12/22]
- In The Hill, legal expert Eliot Tracz affirmed that the FBI and the Department of Justice have addressed “each step required by the Fourth Amendment” in “a clear and intelligible manner.” He called the unsealing of the search warrant a “huge win for the rule of law,” presenting the public with an opportunity to see firsthand how “the procedural requirements of the Fourth Amendment are applied” and providing “a clear view of a justice system working as it is intended to.” [The Hill, 8/16/22]