Trump lawyers claim Mar-a-Lago search done without probable cause as prosecutors slam ‘conspiracy theory'

close

Video

Trump's attorneys argue FBI search warrant was unlawfully issued

Fox News legal editor Kerri Urbahn on the details of the Trump classified documents case, saying it is troubling that Jack Smith is redefining the parameters of free speech in this case.

Attorneys for former President Trump argued that the search of his Mar-a-Lago property in August 2022 was without probable cause and a violation of the presumptive Republican presidential nominee's constitutional rights, while federal prosecutors blasted the defense as a "conspiracy theory." 

Trump attorneys and federal prosecutors appeared in U.S. District Court for the Southern District of Florida Tuesday before Judge Aileen Cannon.

JUDGE UNSEALS FBI FILES IN TRUMP CLASSIFIED DOCUMENTS CASE, INCLUDING DETAILED TIMELINE OF MAR-A-LAGO RAID

Cannon first held a hearing Tuesday morning related to Trump's "Motion for Relief relating to the Mar-a-Lago Raid and Unlawful Piercing of Attorney-Client Privilege."

The hearing took place during a sealed session in order to protect secret grand jury materials. It is also sealed to protect materials in which Trump asserts attorney-client privilege and/or work product protection.

Former President Donald Trump, left, and Special Counsel Jack Smith. Smith is asking the U.S. Supreme Court to hear Trump’s immunity claims in the election interference criminal case against him.  (Getty Images)

Cannon later opened the hearing to the public and the press. The hearing Tuesday focused on the legality of federal agents raiding Trump's Mar-a-Lago property. 

Trump attorney Emil Bove argued that the search was impermissably large, arguing that the Mar-a-Lago property is 58 bedrooms, 33 bathrooms, and that the federal government needed to establish probable cause for a search of the property in its entirety.

Cannon expressed skepticism, asking Bove: "What's your point? It's a property."

Bove reportedly went on to explain areas the FBI agents took photos of — areas he said they were not supposed to search, like former First Lady Melania Trump's bedroom, the gym and Barron Trump's room.

Cannon pressed back, saying: "You can agree though, paperwork is a thing you could find anywhere."

Cannon was essentially suggesting that classified documents could have been found anywhere in the home.

Bove also argued that the government told the magistrate judge, who signed off on the warrant, certain things but did not fully brief FBI agents on where to search during the raid. 

Bove said FBI agents executing the search were in no position to decide unilaterally where to search and what were personal records of Trump and what were not. 

A view of former President Donald TrumpÂs Mar-a-Lago home on Tuesday, Aug. 9, 2022, in Palm Beach, Fla. (Matias J. Ocner/Miami Herald/Tribune News Service via Getty Images)

Bove went on to say there were omissions in the information given to the magistrate judge, arguing that some FBI agents said the search was unnecessary and that Trump should've been given a heads-up.

Bove said the agents were interested in "consent" from Trump. 

The Trump legal team repeatedly asked Cannon to schedule a "Franks hearing," which is a hearing to explore the admission of evidence obtained during a search warrant that was issued after a magistrate judge had been misled. Cannon seemed skeptical but said she would take the motion under advisement.

Special Counsel Jack Smith, who brought the charges against Trump after his months-long classified records investigation, was present in court Tuesday. 

FEDERAL JUDGE POSTPONES TRUMP'S CLASSIFIED RECORDS TRIAL WITH NO NEW DATE

Federal prosecutor David Harbach argued for the special counsel's team and told Cannon that, in this instance, the defense is required to make a "substantial showing" to prove false statements intentionally or a reckless disregard for the truth in the documentation given to the magistrate judge when obtaining the initial search warrant. 

Harbach added that the mandate for such a hearing is that there must be allegations of a "deliberate falsehood," and that must be accompanied by proof. Harbach argued to Cannon that Trump’s team had fallen "woefully" short in their filings to satisfy those requirements.

Cannon did ask the prosecution about the Trump team’s allegation that there was dissension within the FBI about whether to give former President Trump a chance at "consent" of the search — in other words, to let him know a search was coming and negotiate the terms of turning over documents. 

Former president Donald Trump's Mar-a-Lago resort in Palm Beach, Florida.  (Charles Trainor Jr./Miami Herald/Tribune News Service via Getty Images)

"Would that have made a difference?" Cannon asked.

Harbach replied, "Definitely not," and added that was not something that the magistrate judge would have considered in connection with probable cause. Harbach also called that argument from the Trump team a "conspiracy theory."

Harbach said the defense team did not meet their burden of proof for this motion and argued they should not be allowed to trigger an additional evidentiary hearing. They hoped to be able to bring in FBI agents to ask about their "mental state" on the day of the Mar-a-Lago raid.

With regard to Trump's argument that the search of Mar-a-Lago was overbroad, Harbach argued that the former president had access to his wife's quarters as well as his son's, and said the FBI's search of those rooms was "plainly within the scope of the warrant."

Harbach also defended the search, saying there was no "rummaging" through rooms, and maintained that the agents carried out their duties "professionally and expeditiously." 

Harbach argued that there was "reason to believe" that classified documents were at Mar-a-Lago, and that the documents had been moved at Trump’s direction. Harbach said coupled together, those two things were sufficient reason to search the entire property.

Meanwhile, Trump's lawyers raised issue with the fact that other documents were seized during the raid beyond classified records, including personal documents like medical and tax records. 

Cannon asked why a medical record "would need to be seized?" 

Harbach answered that was because the warrant "authorized the seizure of the box… the boxes contained all kinds of things." 

Harbach also added that the medical records and the passport were returned to Trump. 

Trump’s team had also argued that the FBI had carried out the raid in an egregious fashion, but Harbach told Judge Cannon that was "false."

The Trump team also has said there was no reason for the FBI to bring firearms to Mar-a-Lago, the property of a former president protected by Secret Service.

Federal Judge Aileen Cannon. (US Courts )

Harbach told Cannon that FBI agents carry firearms as a matter of course and that’s just "part of protocol."

Bove delivered a rebuttal, where he again urged Cannon to schedule a hearing to explore issues surrounding the magistrate judge’s issuing of the search warrant and the FBI’s execution of the search warrant.

"He says there was no rummaging," said Bove, referring to Harbach, "Says who?"

TRUMP CLASSIFIED DOCS JUDGE TO WEIGH ALLEGED 'UNLAWFUL' APPOINTMENT OF SPECIAL COUNSEL JACK SMITH

Bove added that’s why this situation "requires a hearing."

"Your challenge is a particularity challenge," Cannon said. "I don't see what else should have been [in the attachments given to the magistrate judge.]" 

Meanwhile, Harbach accused Trump defense attorneys of attempting to "hijack the hearing."

Cannon replied that there was no hijacking, that rather the hearing was coming to an end.

Harbach then said he wanted to make a "factual point about the tactics of the defense," and accused them of repeated attempts to use this hearing to import other allegations.

There, Cannon cut him off and said she would take the motion under advisement.

The hearing comes after Cannon indefinitely postponed Trump's trial due to the "myriad and interconnected pre-trial" issues "remaining and forthcoming." She said it would be "imprudent and inconsistent with the Court's duty to fully and fairly consider the various pending pre-trial motions."

Cannon did not schedule a new trial date.

CLICK HERE TO GET THE FOX NEWS APP

Trump was charged out of Smith’s investigation into his retention of classified materials. Trump pleaded not guilty to all 37 felony charges from Smith’s probe, including willful retention of national defense information, conspiracy to obstruct justice, and false statements.

Trump was also charged with an additional three counts as part of a superseding indictment out of the investigation: an additional count of willful retention of national defense information and two additional obstruction counts.

Trump pleaded not guilty.

Fox News' Jake Gibson contributed to this report.