If you texted John Eastman, in the past week or two, you may be waiting a while for a response. On Friday, US District Judge Robert C. Brack denied the Trump coup lawyer a temporary restraining order mandating the return of his iPhone after the FBI seized it on June 22 pursuant to a warrant.
If you were unfamiliar with Eastman’s oeuvre, you might expect a former ConLaw professor to appreciate that the odds are pretty good that the government is going to win a Fourth Amendment seizure case — particularly when they showed up with a signed warrant. But considering that Eastman was the main driver of a plan to allow the Vice President to unilaterally decide the winner of an election, it seems pretty on-brand. We are, after all, talking about a guy under federal, state, and congressional investigation, who nonetheless went on Tucker Carlson’s show to encourage the routine spoliation of evidence.
On July 8, Eastman’s counsel asked the court to issue a temporary restraining order to force the government to give back his phone and delete any copies of his hard drive, based on various First, Fourth, Fifth, and Sixth Amendment claims. Unlike in his original complaint, Eastman acknowledged this go ’round that the warrant clearly contemplates putting a filter team in place to shield any attorney-client documents.
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.
Nonetheless, he accuses the government of “rummaging” through the device and blithely asserts that “[t]he complete absence of any proposal from the government for protecting privileged information makes this an open and shut case for likelihood of success.”
Well, perhaps not.
“Because there is no evidence that the Government has searched the phone or plans to search it without the benefit of a Filter Team, and because the warrant specifies that no search of the phone will occur until further order of the court, Eastman fails to show a likelihood of success on his claim under the Sixth Amendment,” wrote Judge Brack, the senior judge in the District Court of New Mexico.
Eastman similarly failed to persuade the court that the warrant was defective because inter alia the supporting affidavit wasn’t attached, the agents were allowed to unlock it by holding it up to his face (OpSec FTW!), or because a warrant for “any electronic or digital devices—including cell phones, USB devices, iPads, and computers identified in the affidavit— and all information in such devices” is somehow not specific enough to cover the seizure of his cell phone and all the information in it.
The court rendered no opinion on Eastman’s bold claim that, if only the officers had allowed him to see the warrant before demanding that he hand over the phone, “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.”
But the court failed to be persuaded by Eastman’s argument that it was illegal for the officers to take the phone first and give him the warrant second. Ditto for his position that the lack of reference to a specific crime in the warrant makes it defective.
“Finally, Eastman contends that the warrant is facially invalid because it does not mention any particular crime for which the evidence was sought” Judge Brack writes, noting dryly, “He does not cite any authority on point.”
The court set a briefing schedule on a possible preliminary injunction which puts the parties back in court on September 6. So if you want to be in touch with the Coups 4 Dummies lawyer before then, shoot him an email. But maybe don’t put anything too personal in it — there’s always the outside chance that some agency or other might wind up reading it.
Eastman v. US [Docket via Court Listener]
Liz Dye lives in Baltimore where she writes about law and politics.