Trump attorney says 'unconstitutional' raid should never have been approved by Garland, Wray
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EXCLUSIVE: Former President Donald Trump is set to sue the Justice Department for $100 million in damages over the government’s unprecedented 2022 raid on his Mar-a-Lago property in Palm Beach, Florida, with lawyers arguing it was done with "clear intent to engage in political persecution."
Fox News has obtained Trump’s memo claiming "tortious conduct by the United States against President Trump."
Republican presidential candidate former President Donald Trump is surrounded by U.S. Secret Service agents at a campaign rally. (AP Photo/Evan Vucci)
Trump and his legal team intend to sue the Justice Department for its conduct during the FBI’s raid on Mar-a-Lago on Aug. 8, 2022, amid the federal investigation into his alleged improper retention of classified records.
JUDGE DISMISSES TRUMP'S FLORIDA CLASSIFIED DOCUMENTS CASE
After the raid, Special Counsel Jack Smith was appointed to investigate. Smith ultimately brought 37 felony counts against Trump, including willful retention of national defense information, conspiracy to obstruct justice, and false statements. Trump pleaded not guilty to all counts.
Police standby at the approach to Mar-a-Lago in Palm Beach on Aug. 9, 2022, as supporters of former President Donald Trump turn out after an FBI raid of the former president’s residence earlier in the day. (Nicholas Nehamas/Miami Herald/Tribune News Service via Getty Images)
But U.S. District Judge Aileen Cannon, last month, dismissed Smith’s case against Trump altogether. Cannon ruled that Smith was unlawfully appointed and funded, citing the Appointments Clause in the Constitution.
Trump attorney Daniel Epstein filed the notice to sue the Justice Department. The Justice Department has 180 days from the date of receipt to respond to Epstein's notice and come to a resolution. If no resolution is made, Trump's case will move to federal court in the Southern District of Florida.
"What President Trump is doing here is not just standing up for himself – he is standing up for all Americans who believe in the rule of law and believe that you should hold the government accountable when it wrongs you," Trump attorney Daniel Epstein told Fox Business' Lydia Hu.
Former president Donald Trump's Mar-a-Lago resort in Palm Beach, Florida. (Charles Trainor Jr./Miami Herald/Tribune News Service via Getty Images)
Epstein's filing states that the "tortious acts against the president are rooted in intrusion upon seclusion, malicious prosecution, and abuse of process resulting from the August 8, 2022 raid of his and his family’s home at Mar-a-Lago in Palm Beach Florida." Epstein added that the decisions made by the DOJ and FBI regarding that raid were "inconsistent with protocols requiring the consent of an investigative target, disclosure to that individual’s attorneys, and the use of the local U.S. Attorney’s Office."
Epstein argues the decisions made by Attorney General Merrick Garland and FBI Director Christopher Wray were not grounded in "social, economic, and political policy" but instead, in "clear dereliction of constitutional principles, inconsistent standards as applied to" Trump and a "clear intent to engage in political persecution – not to advance good law enforcement practices."
Attorney General Merrick Garland speaks with reporters during a news conference at the Department of Justice on Dec. 6, 2023, in Washington, as Secretary of Homeland Security Alejandro Mayorkas, right, looks on. (AP Photo/Mark Schiefelbein)
"Garland and Wray should have never approved a raid and subsequent indictment of President Trump because the well-established protocol with former U.S. presidents is to use non-enforcement means to obtain records of the United States," Epstein wrote. "But notwithstanding the fact that the raid should have never occurred, Garland and Wray should have ensured their agents sought consent from President Trump, notified his lawyers, and sought cooperation."
Epstein added: "Garland and Wray decided to stray from established protocol to injure President Trump."
TRUMP IMMUNITY CASE: SUPREME COURT RULES EX-PRESIDENTS HAVE SUBSTANTIAL PROTECTION FROM PROSECUTION
Epstein argued that the DOJ violated Florida law, intrusion upon seclusion, which is recognized as a form of invasion of privacy. Intrusion upon seclusion includes "an intentional intrusion, physically or otherwise, into the private quarters of another person" and the intrusion "must occur in a manner that a reasonable person would find highly offensive."
FBI Director Christopher Wray listens during a news conference at the Department of Justice in Washington, D.C., on, Jan. 27, 2023. (AP Photo/Carolyn Kaster)
"The FBI’s demonstrated activity was inconsistent with protocols used in routine searches of an investigative target’s premises," Epstein wrote, adding that Trump "had a clear expectation of privacy at Mar-a-Lago. Worse, the FBI’s conduct in the raid – where established protocol was violated – constitutes a severe and unacceptable intrusion that is highly offensive to a reasonable person."
Next, Epstein argued "malicious prosecution." He wrote that the Justice Department and the special counsel’s office "brought a lawless criminal indictment" against Trump. Epstein pointed to the Supreme Court’s ruling that a president has immunity from prosecution for official acts.
Special Counsel Jack Smith delivers remarks on a recently unsealed indictment including four felony counts against former President Donald Trump at the Justice Department on Aug. 1, 2023, in Washington, D.C. Trump was indicted on four felony counts for his alleged efforts to overturn the 2020 election. (Alex Wong/Getty Images)
"As such, given the Supreme Court’s immunity decision and Judge Cannon’s dismissal of the prosecution on grounds that the Special Counsel’s appointment violated the appointments clause and his office was funded through an improper appropriation, there was no constitutional basis for the search or the subsequent indictment," Epstein writes.
Republican presidential nominee, former President Donald Trump speaks at a rally at the Brick Breeden Fieldhouse at Montana State University on Aug. 9, 2024, in Bozeman, Montana. (Michael Ciaglo/Getty Images)
Epstein also argued there was an "abuse of process," saying the process used against Trump was "unconstitutional and aimed at politically persecuting the former President, which led to extensive legal costs and negative consequences for him."
Epstein also argued the DOJ’s "malicious prosecution and abuse of process cause President Trump to incur, upon information and belief, $15 million in actual harm due to his legal costs" in defending himself in Smith’s case before Cannon.
Epstein is also planning to sue for punitive damages.
"For these harms to President Trump, the respondents must pay punitive damages of $100 million," Epstein wrote.
Attached with the memo is a certification signed by Trump that Epstein is his legal representative for the notice to the Justice Department.
The Justice Department declined to comment.
"You have clear evidence that the FBI failed to follow protocols, and the failure to follow protocols shows that there was an improper purpose," Epstein told Fox Business. "If the government is able to say, well, we don't like someone, we can raid their home, we can violate their privacy, we can breach protocols when we decide to prosecute them, we can use the process to advance our personal motive--not a motive of justice--if someone doesn't stand against that in a very public way and seek to obtain and protect their rights, then the government will have a mandate to roughshod over every American."
Epstein added that the case is "very accurate and precise election interference."
"The entire special counsel investigation was about interfering with his ability to get elected," Epstein said.
Brooke Singman is a political correspondent and reporter for Fox News Digital, Fox News Channel and FOX Business.
