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

Former President Trump’s legal team has argued that the August 2022 search of his Mar-a-Lago resort was unprovoked and violated his constitutional rights as the presumptive Republican presidential nominee, but federal prosecutors have slammed the legal team’s arguments as a “conspiracy theory.”

Trump’s lawyers and federal prosecutors appeared Tuesday before Judge Eileen Cannon of the U.S. District Court for the Southern District of Florida..

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Cannon began his hearing on Tuesday morning with a hearing on President Trump’s “Motion for Relief Relating to the Mar-a-Lago Attack and Unlawful Breach of Attorney-Client Confidentiality.”

The hearings were held behind closed doors to protect the confidential grand jury materials and to protect the materials Trump may claim are protected by attorney-client privilege and work product protections.

Jack Smith and the Cards

At left, former President Donald Trump and special counsel Jack Smith, who is asking the US Supreme Court to hear Trump’s immunity claim in his criminal election interference case. (Getty Images)

Cannon then opened the hearing to the public and reporters. Tuesday’s hearing focused on the legality of the search by federal agents of Trump’s Mar-a-Lago estate.

Trump’s lawyer, Emil Bove, argued that the search was impermissibly large, arguing that the Mar-a-Lago estate has 58 bedrooms and 33 bathrooms and that the federal government must establish probable cause to search the entire property.

Cannon expressed skepticism, asking Bove, “What are you talking about? It’s an asset.”

According to the report, Bove went on to describe the locations where FBI agents took photos, naming former First Lady Melania Trump’s bedroom, the gym and Barron Trump’s room as places they should not have searched.

Cannon countered, “I think we can all agree that documents are available anywhere.”

Cannon was essentially suggesting that classified documents could be found anywhere in the house.

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

Bove said the FBI agents conducting the searches were not in a position to unilaterally decide where to search or what constituted Trump’s personal records and what did not.

Mar-a-Lago's exterior after the FBI raid

A view of former President Donald Trump’s Mar-a-Lago vacation home, Tuesday, Aug. 9, 2022, in Palm Beach, Florida. (Matthias J. Ochner/Miami Herald/Tribune News Service via Getty Images)

Bove also said there were leaks in the information provided to the magistrate judge, and some FBI agents argued the search was unnecessary and that Trump should have been informed beforehand.

Bove said investigators were interested in “consent” from Trump.

Trump’s legal team has repeatedly asked Cannon to hold a “Franks hearing” — a hearing to examine alleged evidence obtained during a search warrant issued after a magistrate judge was misled. Cannon was skeptical but said he would consider the motion.

Special Counsel Jack Smith, who brought charges against Trump after months of reviewing classified records, appeared in court on Tuesday.

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Federal prosecutor David Harbach defended the special counsel team, telling Cannon that in this case the defense would have to present “substantial evidence” to prove there were intentional false statements or disregard for the truth in documents submitted to the magistrate judge in obtaining the initial search warrant.

Harbach added that such a hearing would require “intentionally false” allegations and must be supported by evidence. He argued to Cannon that the Trump campaign’s filings “woefully” fell short of those requirements.

Cannon questioned prosecutors about the Trump campaign’s assertion that there was disagreement within the FBI over whether to give former President Trump an opportunity to “consent” to the search — in other words, to inform him that a search would be conducted and negotiate the terms of the documents being turned over.

Mar-a-Lago exterior

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

“Would that have made a difference?” Cannon asked.

“Absolutely not,” Harbach said, adding that it’s not something a magistrate judge would consider in relation to probable cause. Harbach also called the Trump campaign’s claim a “conspiracy theory.”

Harbach said the defense has not met its burden of proof on the motion and should not be allowed to open additional evidentiary hearings. The defense wants to bring in FBI agents to question the defendants about their “mental state” on the day of the Mar-a-Lago attack.

As for Trump’s claim that the Mar-a-Lago search was too broad, Harbach argued that the former president had access to his wife’s apartment as well as his son’s, and said the FBI’s search of those rooms was “clearly within the scope of the warrant.”

Harbach also defended the search, saying there was no “rummaging” of rooms, and insisted investigators 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 they were moved at the direction of President Trump — two facts he said combined were enough to warrant a search of the entire compound.

Meanwhile, Trump’s legal team took issue with the fact that in addition to the classified documents, other documents were seized during the searches, including personal documents such as medical records and tax records.

Cannon asked why medical records “need to be seized.”

Harbach responded that the warrant “authorized the seizure of the boxes … there was all sorts of stuff in the boxes.”

Harbach added that Trump’s medical records and passport had been returned to him.

Mr Trump’s team also alleged that the FBI ran its investigation in a nefarious manner, but Mr Harbach told Judge Cannon that was “false”.

The Trump campaign also argues that the FBI had no reason to bring firearms to Mar-a-Lago, the former president’s estate, which is protected by the Secret Service.

Judge Eileen Cannon

Federal Judge Eileen Cannon. (US Courts)

Harbach told Cannon that it is natural for FBI agents to carry firearms and that it is just “part of the custom.”

Bove fired back, again calling on Cannon to schedule a hearing to examine issues surrounding the magistrate judge’s issuance of the search warrant and the FBI’s execution of the search warrant.

“He says there was no rummaging,” Bove said, referring to Harbach. “Who said that?”

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Bove added that this is why the situation “needs a public hearing.”

“Your challenge is a challenge to particularity,” Cannon said. “I don’t know what else was required.” [in the attachments given to the magistrate judge.]”

Meanwhile, Harbach accused Trump’s legal team of trying to “hijack the hearing.”

Cannon responded that no hijacking had occurred and that the hearing was nearing its conclusion.

“I want to point out some facts about the defense’s tactics,” Harbach said later, accusing the defense of repeatedly trying to use the hearing to bring up other allegations.

Cannon then interrupted him and said he would consider the motion.

The hearing came after Judge Cannon indefinitely postponed Trump’s trial, citing “myriad unresolved and yet-to-arise interrelated pretrial issues.” He said the delay was “impolite and inconsistent with the Court’s duty to give full and fair consideration to the various pending pretrial motions.”

Cannon did not set a new trial date.

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Trump was removed from Smith’s investigation into his possession of classified material. He has pleaded not guilty to all 37 felony charges brought in the Smith investigation, including knowingly retaining national defense information, conspiracy to obstruct justice and making false statements.

Trump was charged with three counts in a supplemental indictment in the investigation, including willful retention of national defense information and two counts of obstruction.

Trump pleaded. Not guilty.

Fox News’ Jake Gibson contributed to this report.