DOJ pushes back against Eastman effort to reclaim his cellphone

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The filing is the latest salvo in the department’s increasingly public effort to criminally investigate efforts by Trump and his allies to disrupt the transfer of power and overturn the 2020 election. It’s also the latest indication that the Justice Department considers the Eastman matter a high priority — it has dispatched its top investigators in matters connected to Trump, including Assistant U.S. Attorney Thomas Windom — to litigate the matter. Last month, Windom revealed that the department had obtained a second search warrant for Eastman’s phone to govern matters that might be covered by attorney-client privilege.

Eastman’s demand that the government give his phone back and destroy all any information copied from it would be a “complete purge of the documents from the Government’s investigatory files,” according to the Justice Department, and “would cause substantial detriment to the investigation, as well as seriously impede any grand jury’s use of the seized material in a future charging decision. The law does not support such action.”

Among Eastman’s complaints: The seizure of his phone, for which a search warrant was obtained, was effectuated by the Justice Department’s inspector general, which typically investigates wrongdoing by department employees. Eastman, on the other hand, is a private attorney. But the department said his argument was simply incorrect. The inspector general has authority to pursue evidence from private parties if it relates to potential “criminal wrongdoing that adversely affects the Department.”

“As a matter of common sense, he is incorrect: an investigation of wrongdoing by one individual routinely involves obtaining evidence from others, particularly in cases involving conspiracies,” Dohrmann writes.

Eastman had also alleged his Fifth Amendment rights were violated when the FBI agents made him unlock his phone with facial recognition, but the Justice Department said the warrant had permitted agents to “obtain a physical characteristic of the movant,” like Eastman’s face, “using their independent knowledge as to what characteristic would be relevant for accessing the seized device.”

The department’s most pointed retort to Eastman came over his complaint that he was not presented with the search warrant prior to having his phone seized.

“In the movant’s professorial view, he should have been provided a copy of the warrant prior to its execution, and then apparently given time (minutes? hours?) to read and analyze it so that he ‘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,’” DOJ noted, “all while agents stood in a parking lot, in an open-carry state, knowing that the movant was authorized to carry a concealed weapon.”

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