I Solved the Mystery: Here's Why Trump Wasn't Just Subpoenaed | Opinion

I know why former President Donald Trump's papers were seized in a search, rather than obtained via subpoena. It was to circumvent his Fifth Amendment rights.

If Trump were subpoenaed to turn over material that may be classified, his lawyers would have the right to claim that the very act of producing these documents would be incriminating. It would constitute an admission that he possessed these contraband documents. This is a common problem in criminal investigations. The Justice Department generally solves the problem by offering the suspect "production immunity." This is a rather complex constitutional mechanism, but it is one that is frequently used. If a defendant is given production immunity, he must turn over the incriminating documents, but the government is precluded from using the fact that it was he who turned them over. The government remains free to introduce the documents for their substantive content—but the government cannot say whence it obtained them, and it cannot use the fact that the source produced them as evidence of the source's guilt.

The Justice Department obviously did not want to give Trump production immunity, so it deliberately circumvented his Fifth Amendment rights by simply seizing them when he was a thousand miles away. Since it was not Trump or his lawyers who turned them over, Trump cannot claim his Fifth Amendment rights were violated. This is very clever, perhaps, but it is also highly questionable.

Obviously, any jury would easily infer where the documents were when they were seized. It really makes little practical difference whether Trump or his lawyers handed them over, or whether they were merely found on his premises. But the courts have decided that this distinction matters.

It didn't always matter. And in the famous trial of Aaron Burr for treason, Burr refused to comply with a subpoena, claiming that the content of the subpoenaed documents was incriminating. Supreme Court Chief Justice John Marshall accepted that argument and quashed the subpoena. But in subsequent cases since, the courts have legally distinguished between the incriminating contents of documents, on the one hand, and the active production itself, on the other hand.

How many angels can dance on the tip of a pin? But on the answer of such questions does the law often make fine distinctions.

The residence of former US President Donald
The residence of former US President Donald Trump at Mar-A-Lago in Palm Beach, Florida, on August 9, 2022. GIORGIO VIERA/AFP via Getty Images

If I am right, then the question raised is whether it is proper to use a search to deny a potential defendant his Fifth Amendment right against self-incrimination. Proponents of a search would argue that since he had no legitimate claim of self-incrimination in the contents of the papers themselves, he has lost no Fifth Amendment right by the search. Opponents of a search designed to circumvent the self-incrimination would respond by arguing that the purported content/production distinction is a distinction without a real difference.

Proponents of the search will probably win in court, if the magistrate judge reasonably found that there was probable cause. But they may well lose in the court of public opinion, where this esoteric legal distinction will not be understood or justified.

There may be another reason why a subpoena was not issued, and a search and seizure conducted instead. A subpoena must be for specific documents. A search, by contrast, can be more sweeping and may discover incriminating evidence that was not directly sought by the warrant but is deemed to be in "plain view." The search may also have been designed to send a message that the Justice Department is playing hardball, and that it will use every tactic at its disposal to intimidate Trump and his lawyers.

These issues will ultimately be resolved in a court of law. But if the goal of those employing these tactics is to prevent Trump from running for president again or to negatively affect his chances if he does run, these tactics may well backfire in the court of public opinion.

The administration of justice is not a game. The rules must not only be fair, but they must be perceived by the public as fair. They must also be seen to be applied equally. These tactics were not used against Hillary Clinton or Sandy Berger for comparable violations of the relevant underlying statutes. So even if these tactics can be justified in the abstract, they still may not reflect the equal protection—and equal enforcement—of the law.

Alan M. Dershowitz is the Harvard Law School Felix Frankfurter Professor of Law, emeritus. He is the author, most recently, of The Price of Principle: Why Integrity Is Worth the Consequences. Follow him on Twitter: @AlanDersh. His new podcast, "The Dershow," is available on Spotify, YouTube, and iTunes. Also: Dersh.Substack.com.

The views expressed in this article are the writer's own.