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.”

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