Trump lawyers attack legality of Mar-a-Lago search warrant in classified documents case, but judge appears unconvinced

FORT PIERCE, Florida — U.S. District Judge Aileen Cannon deflected defense arguments on Tuesday that a warrant authorizing an FBI search of Donald Trump’s estate for classified documents was deficient and is grounds for dismissing the government’s criminal case against the former president.

“I have a hard time seeing what more needed to be included,” Cannon said, referring to the warrant’s description of where agents could search the estate and what documents could be seized.

Lawyers appeared Tuesday in Cannon’s courtroom for the last of a three-day stretch of hearings on defense dismissal motions in the documents case, including one attempting to quash evidence gathered in the FBI search on Aug. 8, 2022, of Trump’s sprawling Palm Beach home.

Trump’s lawyers attacked the search warrant and the application authorizing it as too broad and lacking specifics. The lawyers outlined a laundry list of factors that purportedly made the Justice Department’s application supporting the search warrant deficient. They included purported omissions of key facts about what items were being sought and where they could be found at the estate.

Trump is under indictment for allegedly retaining sensitive government materials after he left office in 2021. Trump and two employee co-defendants, Waltine Nauta and Carlos De Oliveira. have pleaded not guilty. None of them has been in court while their lawyers argued for the case’s dismissal on a variety of grounds which Cannon has been weighing in hearings since last Friday.

But Special Counsel Jack Smith has been in Cannon’s court as a spectator seated behind the government lawyers’ table for all of the hearings.

Addressing the FBI search on Tuesday, defense attorney Emil Bove asserted the warrant permitted an overly expansive search of the sprawling estate, which occupies 17 acres and has 53 bedrooms.

Bove complained the search spilled into the bedroom of former First Lady Melania Trump, as well as the bedroom of the Trumps’ teenage son, Baron. Bove asked the judge for a so-called Franks hearing to gather evidence on how the search was conducted and among other things ascertain the mindsets of the agents who conducted it.

“The overbreadth of that search violated President Trump’s rights,” Bove said.

But prosecutor David Harbach, who clashed with the judge Monday about the legality of the authorization of funds for Smith’s office, said there was no overreach and no violations of the protocols used by the FBI to conduct the search.

“There’s nothing about it that remotely even touches on whether there was probable cause in this case,” Harbach said.

He said it was reasonable that agents conducted a broad sweep of Mar-a-Lago because the documents had been moved around to various locations, including a bathroom.

Toward the end of Tuesday afternoon’s hearing, Cannon suggested she considered the warrant sufficient in outlining which items FBI agents could seize in Palm Beach. She said omissions the defense considered fatal for the warrant’s approval made no difference on the existence of probable cause to conduct the search.

Earlier, Cannon also suggested there was a high bar for the defense to show the warrant’s supporting affidavit contained false statements.

She also questioned the relevance of evidence offered by Trump’s lawyers that an FBI agent omitted the fact that some top FBI officials preferred a consensual search of Mar-a-Lago.

“Why would it have changed the magistrate judge’s determination of probable cause?” Cannon asked Bove.

“It just seems like you’re making policy arguments,” she added after Bove complained agents were never briefed about how to proceed “on the ground” at Mar-a-Lago. “It seems far afield from whether the affidavit reached the probable cause standard. I’m unclear what you think should have been included.”

Despite the judge’s observations that appeared to lean in the government’s favor, another flashpoint involving Harbach marked the end of the hearing.

As Cannon sought to close out the proceedings, Harbach jumped to his feet to complain that the defense has been making repeated unsupported allegations in “an attempt to hijack the hearing.”

“It’s not fair,” he said.

But Cannon cut off Harbach, telling the prosecutor, ” there is no hijacking.”

As of the end of Tuesday, Cannon had not ruled on any of the items presented in her courtroom over the three days of hearings.

Shifting documents

Late Monday, the prosecution released a new batch of photographs showing overturned boxes and spilled contents to counter a defense motion alleging that the boxes of papers and other items seized by agents were out of the order in which they were originally found.

The government said there has been no “spoliation” of evidence as Trump’s lawyers claimed.

“Against this backdrop of the haphazard manner in which Trump chose to maintain his boxes, he now claims that the precise order of the items within the boxes when they left the White House was critical to his defense, and, what’s more, that FBI agents executing the search warrant in August 2022 should have known that,” Smith wrote in the filing. “But because the overall contents of each box have not changed, Trump can argue both of those things and has everything he needs to do so. Nothing has been lost, much less destroyed, and there has been no bad faith.”

In May, Smith’s prosecutors acknowledged some boxes contained documents that were not in the same order as when they were found during the FBI’s search. But they said the shifting of the contents was inconsequential.

They said Trump had mixed in a variety of personal items with classified documents in his 2021 move from Washington to South Florida.

“Trump personally chose to keep documents containing some of the nation’s most highly guarded secrets in cardboard boxes along with a collection of other personally chosen keepsakes of various sizes and shapes from his presidency,” prosecutors said in court papers.

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