“This was just a misuse of the search and seizure power. Initially, it was turned down; now it was approved, both by a judge and by the attorney general of the United States, so it wasn’t lawless action, but I believe that they acted inconsistently with both the spirit and the letter of the Constitution and that there should be remedies for it,” Dershowitz said on Newsmax on Saturday.
“It should be done through subpoena, and that is the constitutional route to getting evidence,” he added.
A search warrant being executed points to officials believing the subject would destroy evidence if the search was not carried out. But the lawyer knew that he was being investigated for months, so there’s no basis for a search unless a subpoena was obtained, Dershowitz argued.
“The 4th Amendment demands a subpoena in these situations, not a search warrant. What they did in this case was unconstitutional,” he said.
Agents obtaining information that is covered by attorney-client privilege would taint prosecutors who may try to prosecute Giuliani, Dershowitz added, saying that he has advised Giuliani’s lawyers on a pro-bono basis to move to get the material back, have the government subjected to subpoena analysis, and force anybody who goes over the material to be from outside the prosecutor’s office, such as a judge.
The FBI did not immediately respond to a request for comment.
Federal agents searched Giuliani’s home because of accusations he failed to register with the Department of Justice, which includes the FBI, according to the former New York City mayor. He disputed the allegation, saying he never represented a Ukrainian national or any foreign national.
Dershowitz sees the allegation as a way for investigators to continue to try to obtain damaging information against Trump.
“I don’t think they have anything on this registration because, really, Giuliani was representing an American; he was representing the president. He was doing investigations in the Ukraine to see if it can help his president,” he said on Newsmax.
The White House has said it is not involved in the situation. The Department of Justice “is independent now” and “they’re going to make their own decisions,” White House press secretary Jen Psaki said.
Trump lamented the raid on Fox Business, calling it “very unfair.”