(Author’s Note: Two days after the publication of this article, U.S. District Judge Aileen Cannon issued an order denying former President Trump’s request for a so-called Franks hearing, rejecting his attorneys’ claims that the search warrant contained “material false statements or omissions.” She did, however, grant Trump an evidentiary hearing on two aspects of his challenge. Trump’s attorneys can continue to question whether another federal judge inappropriately pierce his attorney-client privilege under the crime-fraud exception, during the grand jury investigation, and they can press arguments that the warrant did not have enough “particularity” for the FBI agents who executed the search of Mar-a-Lago.)

Nearly two years after the FBI’s search of Mar-a-Lago, former President Donald Trump’s effort to suppress the evidence that agents found inside his personal residence and social club appeared to fall flat on Tuesday.

Trump’s attorney, Emil Bove, argued that the search warrant was not detailed enough to survive Fourth Amendment scrutiny. 

U.S. District Judge Aileen Cannon pointedly disagreed: “It seems like it is, based on the caselaw that’s been submitted,” she said, minutes before court adjourned. 

Though Cannon did not immediately issue a ruling, Trump’s challenge hinges on the “particularity” of the warrant, and her remarks throughout the proceedings left little doubt as to her leanings.

“It’s clearly delineated there to search for documents with classification markings,” she remarked toward the start of the hearing.  

After holding a sealed session to discuss issues of attorney-client privilege, Cannon considered several aspects of Trump’s bid to suppress evidence about the classified documents that the FBI seized from Mar-a-Lago on Aug. 8, 2022. Trump’s defense team sought an evidentiary hearing to determine whether FBI agents misled a federal magistrate to sign off on the search warrant authorizing it.

Bove, who also represented Trump in his falsifying business records case in New York, argued that the warrant was too broad. 

When asked what language the defense believed the warrant should have had, Bove argued that it should have instructed agents on definitions of national defense information (NDI), “government records,” and “presidential records.” But Cannon replied that the defense seemed to have been arguing that the “equivalent of a legal brief” was necessary. 

The warrant authorized the FBI to search any part of Mar-a-Lago “used or available to be used by FPOTUS [Former President of the United States] or his staff” where boxes or documents could be stored.

“It does not include areas currently […] being occupied, rented, or used by third parties (such as Mar-a-Lago members) and not otherwise used or available to be used by FPOTUS and his staff, such as private guest suites,” the FBI’s affidavit instructed in an attachment.

Bove argued that the warrant still swung too broadly, allowing the FBI to search areas like the rooms used by former First Lady Melania Trump and the former president’s youngest son. He also believed that the federal magistrate should have been told that Trump received classified briefings while in the White House, but Cannon told him that was an “undisputed and obvious point.”

Cannon also pushed back on the difference between Trump’s possession of classified documents while in office and as a private citizen in 2022. 

“Right, post-presidency,” she shot back.

Special Counsel Jack Smith’s assistant David Harbach underscored her point later in the hearing.

“Whatever authorization [Trump] had while he was president doesn’t matter post-presidency,” Harbach said. 

As he had on Monday, Smith sat behind the prosecution table during the proceedings.

When asked why the FBI searched the rooms of family members, Harbach noted that the boxes were moved throughout the sprawling 17-acre property. 

“At one point, the boxes were in a shower in a bathroom,” Harbach said, adding later that the agents “carried out their duties professionally and expeditiously.” 

During his rebuttal, Bove said that he disagreed. He argued that further investigation was necessary to uncover political animus that he claimed, without evidence, to have been motivating the FBI’s conduct.

That line of argument appeared to anger Harbach, who asked for another 30 seconds to reply to accuse the defense of “hijacking the hearing” with “allegations that have nothing to do with the defense.”

Cannon, turning impatient, cut off the prosecutor’s speech.

“There’s no hijacking,” she said, adding the hearing was “about to end.”

After the FBI’s search of Mar-a-Lago nearly two years ago, Cannon controversially ordered the appointment of a special master to conduct review for both executive and attorney-client privileges. She also limited investigators’ access to certain classified evidence as that review was underway. The 11th Circuit overturned both of those orders, noting that such challenges about the search take place after an indictment is issued. 

Now that the issue has been fully briefed, Cannon did not issue an immediate ruling on the matter, as the three-day session of Trump’s pre-trial proceedings drew to a close. She did not indicate when she would decide the matters argued before her.

IMAGE: The seal of the Federal Bureau of Investigation is seen outside of its headquarters in Washington, D.C., on Aug. 15, 2022.   (Photo by MANDEL NGAN/AFP via Getty Images)