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Proof Fox News Really Doesn’t Understand How The Fourth Amendment Works

Editor’s note: Roughly two hours after Law&Crime‘s article was posted, Fox News corrected Jarrett’s citation mentioned below.

Fox News legal analyst Gregg Jarrett posted an article yesterday which reveals a deeply confused understanding of the Fourth Amendment and the law.

Fox News’ readership is likely to metabolize this erroneous understanding of the law. Whether that’s much of a concern for the conservative media outlet is another question. We’ll deal with the legal issues here.

In his post, Jarrett takes aim at special counsel Robert Mueller on behalf of some upset members of President Donald Trump‘s Presidential Transition Team (“PTT”). Recall, it was recently reported that Mueller and his army of attorneys have obtained “tens of thousands” of emails from the PTT.

Conservatives have been whinging about Mueller’s newly-acquired email cache ever since. Many pro-Trump outlets and figures have tried to paper over their anger and disappointment by making pained attempts at citing to the Fourth Amendment.

None of those attempts have really gone over well, however, Fox News has been leading the charge with its misleading explanations. Invocations of the constitutional provision protecting “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,” are turning serious and powerful legal doctrines into a MAGA partisan pastiche of, well, nonsense.

Jarrett’s piece sets the tone with this interesting error: “Under the law, the only remedy is Mueller’s dismissal from the case.” Jarrett, of course, doesn’t cite to any such law. And later efforts to use the basic skill of citation are appropriately embarrassing.

USA Today law and justice reporter Brad Heath noted this somewhat bizarre chunk of text in Jarrett’s anti-Mueller broadside:

The case of Finn v. Schiller, 72 F.3rd 1182, 1189 spells out the required remedy for this violation of the law: “Courts have frequently used their supervisory authority to disqualify prosecutors for obtaining materials protected by the attorney-client privilege.” 

There are at least three (3) problems with Jarrett’s legal-ish attempt to bolster his case here: (1) Finn V. Schiller is never–ever–cited for Jarrett’ proposition; (2) privilege violations are not typically considered violations of the law–they’re semi-sacred legal principles that the U.S. government frequently frustrates at-will; and (3) Finn V. Schiller doesn’t contain any of the above-cited language.

First of all, Schiller concerns remedies for a prosecutor who disclosed confidential grand jury information–it’s not even a Fourth Amendment case–and has nothing to do with the attorney-client privilege. In other words, it has nothing to do with prosecutorial removal.

Second, both the Fourth Amendment and the attorney-client privilege are considered to work in accordance with the following cliche: they are shields as opposed to swords. Violations of the Fourth Amendment or intrusions upon attorney-client communications can be used to diminish the government’s case–by disqualifying certain evidence from being used against a suspect.

The insulated nature of the American legal system doesn’t provide the tools to seriously challenge its Kafkaesque power. Furthermore, the U.S. approach to law at the federal level is traditionally shadowy and overreaching and this is well understood. In fact, this is pretty fundamental stuff.

Finally, what can really be said about Jarrett citing to non-existent language in a case that never even touched upon the issues he thinks it touched upon in the first place? Par for the course.

[image via screengrab]

Follow Colin Kalmbacher on Twitter: @colinkalmbacher

This is an opinion piece. The views expressed in this article are those of just the author.

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