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How have legal scholars argued that presidential actions could implicate the Fourth or Fifth Amendments in cases involving Donald Trump?
Executive summary
Legal scholars and courts have tied presidential (and post‑presidential) actions to Fourth Amendment claims when they involve searches, surveillance or warrantless government queries, and to Fifth Amendment issues mainly around the right against self‑incrimination and due‑process challenges to executive actions; courts and commentators have both upheld and rejected those theories depending on context (e.g., a judge found administration actions likely violated the Fourth Amendment in one recent case) [1] [2]. Scholarship and litigation over the 14th Amendment’s Disqualification Clause—while not the Fourth or Fifth—show how academics press constitutional hooks against a president’s conduct in contested circumstances, but many such suits have been dismissed in lower courts [3] [4] [5].
1. How scholars tie searches and surveillance to the Fourth Amendment
Legal commentators and judges have argued that presidential or administration actions can implicate the Fourth Amendment when they authorize or implement searches, seizures, or warrantless queries that lack neutral magistrate oversight or probable cause; for example, a district judge found that certain administration actions likely violated the Fourth Amendment’s protection against unreasonable searches and seizures [1]. Civil‑liberties groups and filings in litigation have similarly framed mass surveillance programs and warrantless Section 702 or Executive Order‑driven queries as Fourth Amendment “searches,” and courts recently ruled that some warrantless Section 702 queries violated the Fourth Amendment even while denying suppression on other grounds [2] [6]. Conservative and liberal legal critics alike have used these doctrines to challenge executive orders and operational programs when plaintiffs say there was no particularized warrant or when queries exceeded statutory limits [2] [6].
2. Suing agents and Bivens claims after executive actions
Some legal analysts note that individuals—including public figures—may seek damages from federal agents under Bivens or similar theories when agents execute unconstitutional searches or fabricate probable cause in warrants; opinion columns have pointed to Bivens as a route to sue FBI agents for violations of Fourth Amendment rights tied to searches [7]. That is a contested, fact‑specific pathway: Bivens remedies have been narrowed over decades, and courts weigh policy and separation‑of‑powers concerns before allowing damages against federal officers, so scholars stress both potential remedies and legal hurdles [7].
3. The Fifth Amendment as invoked by targets and as a check on executive power
The Fifth Amendment appears in two related scholarly and practical strands. First, defendants and witnesses routinely invoke the Fifth right against self‑incrimination in civil and criminal settings—Donald Trump invoked it many times in New York civil deposition proceedings, and scholars have explained the legal reasons and the difference between civil and criminal contexts [8] [9]. Second, commentators frame certain executive actions as Fifth‑Amendment due‑process or equal‑protection problems when the government attempts to punish, target, or strip rights without fair procedures (for instance, critics argued that specific executive orders violated the Fifth Amendment’s guarantees of due process and equal protection) [10]. Scholars emphasize distinct remedies: invocation of the testimonial Fifth shields individuals from compelled self‑incrimination, while due‑process claims challenge the administration’s use of power affecting liberty or property [9] [10].
4. Competing viewpoints and litigation outcomes
There is clear disagreement in the literature and courts. Some scholars and courts have accepted Fourth or Fifth Amendment claims against executive acts in specific contexts (e.g., Section 702 rulings; a district judge’s finding about likely Fourth Amendment violations) [2] [1]. Other courts and legal actors push back: for example, many 14th Amendment–based efforts to bar Trump from ballots were dismissed in lower courts, and the question of which branch decides eligibility has produced divergent rulings—demonstrating that constitutional claims against presidential conduct can succeed in some forums and fail in others [5] [4]. The 14th Amendment litigation—while different in text—illustrates how constitutional theory can be mobilized against a president but run into procedural and doctrinal limits [3] [4].
5. What the sources do not settle and legal limits to scholarly claims
Available sources do not mention a single, uniform scholarly consensus that presidential actions routinely violate the Fourth or Fifth Amendments; instead they show case‑by‑case theories and mixed judicial results [1] [2] [10]. Scholars flag institutional limits—separation‑of‑powers, qualified immunity, and statutory regimes like FISA—that constrain remedies and outcomes, and courts often balance those policy concerns against constitutional protections [7] [2]. Where commentators urge novel remedies (e.g., broad Bivens recoveries or secretaries of state independently enforcing constitutional disqualifications), courts have sometimes rejected or limited those routes [7] [5] [3].
6. Bottom line for readers
Legal scholarship provides multiple plausible routes to argue that presidential actions implicate the Fourth or Fifth Amendments: challenge searches/surveillance as unreasonable Fourth Amendment intrusions; invoke the Fifth to resist testimony or to press due‑process claims against punitive executive measures; and pursue damages or injunctions through established (but narrow) doctrines like Bivens and APA/due‑process litigation. Whether those theories succeed depends on the precise facts, statutory frameworks (e.g., FISA/Section 702), and courts’ willingness to open remedies—outcomes the current reporting shows have been mixed [2] [10] [7].