Former President Trump has a near-zero chance of ever winning $100 million in damages from the Department of Justice over the FBI’s 2022 search of Mar-a-Lago — even if U.S. District Judge Aileen Cannon of Florida ends up weighing a potential lawsuit, legal experts told Salon.
Trump’s lawyers filed a notice of claim under the Federal Tort Claims Act, which allows people to seek damages from federal agencies for governmental wrongs. Fox News first reported on the filing, while CNN provided a link to the claim.
“The tortious acts against the President are rooted in intrusion upon seclusion, malicious prosecution, and abuse of process resulting from the August 8, 2022, raid of his and his family’s home at Mar-a-Lago in Palm Beach, Florida,” reads the claim.
Trump’s lawyers claim that FBI protocols require the consent of an investigative target and disclosure to the target’s attorneys. And they’re arguing the raid was conducted unconstitutionally and with “a clear intent to engage in political persecution.”
Columbia Law School professor Jeffrey Fagan called the claim “the epitome of a frivolous” legal filing.
He said such claims have “almost no chance when brought by ordinary criminal defendants.
“There is no standard in caselaw for ‘political persecution,’ unless he’s trying to claim malicious prosecution,” Fagan told Salon.
Fagan said malicious prosecution lawsuits are rarely successful.
“Malicious prosecutions are claimed when there is no evidence of wrongdoing by the plaintiff/victim of government excess,” Fagan said. “They assume bad faith on the part of the government, which clearly isn’t the case here.”
A spokesperson for the DOJ declined to comment.
The DOJ has up to six months to respond before the former president’s team can actually file a lawsuit.
Trump pleaded not guilty last year to charges stemming from the discovery of classified documents at Mar-a-Lago after he left office.
The grand jury’s indictment includes 32 counts of unauthorized possession and retention of national defense documents, along with counts that allege Trump conspired to conceal documents from FBI investigators.
Last month, Cannon, a Trump appointee, dismissed that case and agreed with Trump lawyers who argued the appointment and funding of the special counsel violated the Constitution.
In June, Cannon denied Trump’s request for what’s known as a Franks hearing, which allows defendants to challenge the veracity of a search warrant affidavit.
Cannon said that Trump did not make his case — his lawyers identified four omissions in the warrant, but the judge said those omissions wouldn’t have defeated the finding that probable cause existed for the search.
Cannon also said Trump’s motion didn’t “meaningfully challenge the presence of probable cause in the affidavit.”
Fagan said it’s “unusual” that Trump filed the notice of claim under Florida law, which he said can differ from the federal standard.
He said if Trump ends up filing a lawsuit, it should wind up dismissed.
But he added: Judge Cannon “clearly has some animus toward the government.”
Bennett Gershman, a former New York prosecutor and law professor at Pace University, said it has proved hard to predict how Cannon will rule.
“She has made enough ridiculous rulings in this case that nobody should be surprised if she makes another clinker,” he told Salon. “But the claim is so woefully weak that Cannon will almost certainly rule against Trump.”
Gershman said even if “mistakes were made” in the search, the evidence would “still be valid and usable.”
“Documents can be hidden anywhere as the government claimed in the warrant,” Gershman said. “We know documents were found in the bathroom and the ballroom. There is not a whiff of a suggestion that the government acted in bad faith in getting the warrant and then executing it.”
Vanderbilt University professor Christopher Slobogin said that assuming the warrant was valid, the FBI did not violate the Fourth Amendment’s prohibition on unreasonable searches and seizures.
“There is no abuse of process or malicious prosecution if the warrant was valid, because that would mean a judge found there was probable cause to be believed classified documents would be on the premises,” Slobogin told Salon. “Whether departmental protocols were followed depends on how the FBI carried out the search, but in any event would not warrant damages.”
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UC Davis School of Law professor Gabriel Chin said Trump’s notice of claim is “terribly weak.”
“This notice of claim has the hallmarks of a protective filing made because the statute of limitations is about to run,” Chin told Salon.
Chin said findings of probable cause for a search usually preclude any suit.
“If a lawsuit is filed, it is even more unlikely that any lawsuit would lead to a finding of liability against the United States,” Chin said. “You just don’t see prosecutors being sued successfully for obtaining valid warrants and indictments, even if the cases do not ultimately lead to conviction.”
Chin said punitive damages generally aren’t available under Federal Tort Claims Act cases — and he said most courts hold that attorney fees aren’t available either.
“It is not clear that there are any other damages Trump suffered—this is not a property damage or personal injury matter,” Chin said. “In terms of money damages, this may be a ‘no harm, no foul’ situation.”
Meanwhile, Chin said though underlying criminal case is dismissed, there will be an appeal. If Trump loses, that would preclude any civil victory.
“The dismissal was based on the illegality of the special counsel appointment, but even if that is right—a debatable claim—the DOJ has other lawyers [who] can prosecute the case,” Chin said. “You can’t get damages for wrongful prosecution unless the case terminates in your favor, an event which here has not yet and may never occur.”
National security attorney Bradley Moss called the notice of claim a “total joke.”
“This claim under the Federal Tort Claims Act is a total joke. It was a lawful search warrant that came before Jack Smith was even brought in to run the investigation,” Moss told Salon. “The search warrant properly met the legal requirements, a neutral magistrate judge signed off on it, and no judge has concluded otherwise. Mr. Trump cannot even point to any actual damages to property. He is trying to stretch the idea of ‘money damages’ to encompass his legal fees tied to the subsequent criminal proceedings. It will be laughed out of court.”
Moss called the filing a “political stunt for the most part, with the added benefit that if he wins election in November he can then order the Justice Department to pay the claim.”
“If he loses in November, he will drop the claim rather than risk possibly being deposed in civil discovery,” Moss said.
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