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Healthy and General

If Only John Eastman Had Been Able To Deliver A ConLaw

4 min read

(Photo by Alex Wong/Getty Images)

John Eastman has said a lot of crazy things, not least of which was his infamous theory that Vice President Pence could wave a magic wand and grant Trump a second term by rejecting swing state electors. But this doozy from his recent lawsuit against the Justice Department for “illegally” seizing his phone pursuant to a warrant is right up there.

There are no exigent circumstances here that would have precluded the executing officer from providing Movant with a copy of the warrant “at the outset”—before his phone had been seized. And had that been done, Movant would have been able to call the officer’s attention to the several constitutional infirmities evident on the face of the warrant, thus preventing the unconstitutional seizure in the first place.

Of course! If the FBI agents had simply handed him the warrant for his perusal, he would have patiently explained that that the judge was confused. Once apprised of the “constitutional infirmities evident on the face of the warrant,” the officers would have said, “Oh, sorry, sir. Our bad!” and been on their way.

This impressive command of the real world application of Fourth Amendment law is evident throughout the amended complaint, filed after federal agents seized his phone in New Mexico on June 22.

As in his original complaint, Eastman complains that he wasn’t given a copy of the warrant before the FBI patted him down and took his phone; he complains that the supporting affidavit wasn’t attached; he complains that it appears to have been issued pursuant to an investigation initiated by the Justice Department Inspector General, who isn’t his real daddy, since he never worked for the DOJ; he complains that a warrant for his phone and its contents is not specific enough to cover seizure of his phone and its contents; he complains that the warrant allowed the agents to unlock his phone by holding it up to his face; and he complains that the FBI is now pawing through attorney-client communications stored on his phone, even after Judge David Carter ruled that those communications couldn’t be handed over to the January 6 Select Committee.

This last allegation is perhaps the most laughable, since the FBI seems to have been hyper-aware of this possibility and the warrant itself mandates further judicial proceedings before investigators can access anything on the phone.

The investigative team will not review the contents of the device(s) until further order of a court of competent jurisdiction. If a forensic extraction or manual screen capture of the contents of the device(s) occurs during the execution of the search warrant, the contents will not be reviewed by the investigative team until further order of a court of competent jurisdiction.

It’s clear that the government contemplates further court supervision, perhaps including a taint team. Nevertheless, Eastman bemoans the execution of a “general warrant, allowing for an unconstitutional ‘exploratory rummaging’ through movant’s electronic data.”

“The complete absence of any proposal from the government for protecting privileged information makes this an open and shut case for likelihood of success,” he asserts blithely in support of the motion for a temporary restraining order forcing the government to give him back his phone and destroy any copies of data it backed up.

Eastman’s howling about the unconstitutionality of the FBI using his biometric data to unlock the phone — on which this brain genius, the subject of federal, congressional, and state inquiries, failed to even use a numeric password — is similarly disingenuous. His theory is that using his face to unlock his iPhone is “testimonial” in that it establishes his ownership and exclusive control of the device. In support of this, he cites several out-of-circuit cases, most of which deal with premises warrants where, for instance, the agents connected a device containing child pornography to a particular occupant of the premises by using biometric data to unlock it.

Is Eastman’s theory that he was somehow forced to testify that the phone in his pocket belonged to him?

Since he failed to file for emergency relief, the government has until September to answer the complaint. Eastman already managed to make himself a household name after suing the January 6 Select Committee in California to block disclosure of the coup-plotting messages he drafted using his Chapman University email account. No doubt this latest adventure in New Mexico will be equally successful.

Eastman v. US [Docket via Court Listener]


Liz Dye lives in Baltimore where she writes about law and politics.