The court filing is here,
Shall we read it together?
Recall that on June 22, FBI agents searched the home of Jeffrey Clark, a former Justice Department official, in connection with the DOJ’s investigation into January 6. (We learned this on June 23.)
“Clark infamously tried to help Trump overthrow DOJ leadership and overturn the election, resulting in his taking the Fifth Amendment over 100 times in his deposition before the committee. Both the raid on his premises and the content of Thursday’s hearing suggested he had good reason.”
Also on June 22, federal authorities seized the cell phone of John Eastman, the former attorney for Donald Trump at the center of the House committee’s investigation into the Jan. 6 Capitol attack.
Eastman was the former law professor who wrote the memo on how Pence could overturn the election.
Well, John Eastman didn’t like having his phone seized, so he asked the court to order the government to give him back his phone or alternatively grant a TRO (temporary restraining order) preventing the government from doing anything with his phone until the court can hear his issues.
To get a TRO, he has to establish these four things, including that he is likely to succeed on the merits, a defendant has to show:
(1) A likelihood of success on the merits;
(2) a likelihood that [he] will suffer irreparable harm if the injunction is not granted;
(3) the balance of equities is in [his] favor; and
(4) the preliminary injunction is in the public interest.”
The idea is that if the phone was improperly seized, the harm can be minimized.
The court found he is not likely to succeed on the merits. (Yeah, that’s bad for Eastman).
First, Eastman claimed that his First Amendment rights would be violated by this search because it will reveal his political associations. But courts have found that his associations can be revealed if the government has a “sufficiently good governmental interest,” and there is. The court found that, “The Government’s interest in investigating the January 6 attacks on the Capitol is substantial.”
In other words, the government’s interest in investigating the insurrection outweighs Eastman’s right to hide his political associations. Next, he raised a Fourth Amendment defense.
First, he argued that the warrant violated his Fourth Amendment rights because it did not “describe the items to be seized with particularity,” (a requirement under the Fourth Amendment.)
The court said no, the warrant was specific enough because it authorized officers to seize only electronic and digital devices found on Eastman’s person and the area within his immediate control.
He also said that the items described were “overbroad.”
Aaaaand he lost on that one too.
Finally, he lost claimed that the warrant should have listed a partiular crime.
Now, that one (as the court pointed out) makes no sense. If the officers could only seize electronic devices that had evidence of a particular crime, the officers would first have to search to figure out what crimes were committed.
Next, he raised a Fifth Amendment defense. This was an interesting one. The warrant required him to open the device with biometric access (thumbprint or facial recognition) but didn’t require Eastman to furnish a password.
Well, Eastman did not like having to open his devices for the officers.
The court said there is a split of authority on that one, and he isn’t like to prevail, so no TRO on his Fifth Amendment claim.
Finally, he said that the phone contains privileged information. One more . . . sorry charlie you lose again. He didn’t do any of the things he was supposed to do to show that items were privileged. In particular, he was supposed to show what in particular was privileged, and why. (However, because Eastman is a lawyer, we can expect a filter team to review documents to make sure there actually is a privilege (preview: there isn’t.)
He also failed to show that he would suffer irreparable harm. That means he failed to show two out of four, and he needed to show all four, so he lost.
Now remember, this was all to get a temporary restraining order, which would prevent the feds from taking any actions concerning his phone, or to get his phone back immediately.
But . . . the court did find there is a possibility he might succeed on one of these claims, so the court will do fuller briefings. In other words, he doesn’t have a LIKELIHOOD of success on any claims, but there’s a POSSIBILITY of success on something. (Eastman is not happy about this).
From the conclusion:
“Although there is a possibility that Eastman may succeed on one of his constitutional claims, he fails to carry his burden to show the likelihood of success on the merits. Nor has he shown a clear and unequivocal right to relief from an immediate, irreparable harm. Consequently, the Court finds that the motion for TRO should be denied.”
Before people get mad about all the delays here, I can assure you that if law enforcement ever grabs your phone, you’ll be glad there is a way to make sure your rights were not violated.
Also, to state the obvious: Eastman (and Jeffrey Clark) are very close to Trump.
Remember all the trouble Eastman went through to keep his stuff from the Select Committee? Well, in waltzes the feds with search warrants (which require showing a judge that there is probable cause that the materials contain evidence of a crime) and they grab it all.
Over the past 24 hours, lots of people told me there is no evidence of a DOJ investigation reaching into Trump’s inner circle or getting close to Trump.
Tomorrow, people will again tell me there is no evidence of a DOJ investigation. 🤷♂️
