The Grayzone
A federal court has granted discovery in Max Blumenthal’s lawsuit against DHS Secretary Markwayne Mullin, and called the seizure of his phones a violation of his constitutional rights. The judge framed the case as part of a wider assault on press freedom by the Trump administration.
This article was adapted from the ADC and includes additional information and analysis by The Grayzone.
Read a full transcript of the hearing here.
On July 29, The Grayzone’s Max Blumenthal had his day in court. Represented by the American Arab Anti-Discrimination Committee (ADC) in Blumenthal v. Mullin, a federal judge took an important step toward justice in a serious constitutional fight over whether the government can access a journalist’s private electronic devices.
U.S. District Judge Leonie Brinkema raised significant concerns about the government’s seizure and attempted forensic search of journalist Max Blumenthal’s two cell phones. Rather than dismissing the case as moot because the government returned the devices after ADC filed its motion, the Court ordered limited discovery to establish what federal officials did with the phones, who handled them, and whether they obtained or retained any information.
The US government seemed determined to prevent the plaintiff from ever learning why the order was given to violate his constitutional rights, or which political forces were responsible for it. After Judge Brinkema granted limited discovery to the plaintiff, Assistant US Attorney Dennis Barghaan complained to her that “this will be treated as if it is an open field to ask any and all questions about why they were interested in Mr. Blumenthal’s phones.”
As The Grayzone reported, Israel-aligned Trump insider Laura Loomer wrote a lengthy post on X calling for the Trump administration administration to arrest Blumenthal on his return to the US. During Blumenthal’s detention, CBP officers asked questions that closely mirrored Loomer’s post. On July 14, after CBP seized his phones, Loomer celebrated the seizure and described him as a national security threat.
In issuing her judgment, Brinkema placed the targeting of Blumenthal in the wider context of the Trump administration’s attack on press freedom, likening it to the Department of Justice’s failed attempt to subpoena New York Times reporters for revealing security flaws in the $400 billion jet gifted to Trump by Qatar.
“I think, given the fact the plaintiff is a reporter,” Brinkema remarked, “this case has particular concern to the court because there’s been so much recently in the ether about attempts by the government to intrude upon a reporter’s right to report. And you know, just recently in the New York Times, we had the issue of the subpoenas that were issued to the New York Times reporters. I don’t think that can be overlooked in this context.”
Blumenthal’s lawyer, ADC President and Legal Director Jenin Younes, stated after the hearing:
“We are gratified that Judge Brinkema recognized the troubling nature of the government’s seizure of journalist Max Blumenthal’s phones, and also expressed concerns about the forensic search, or attempted search, which she indicated violate the Fourth Amendment,
The Court wisely declined to accept a CBP officer’s declaration as adequate proof that the government retained no evidence from Max’s phones and instead ordered further discovery.
We look forward to continuing to work on this case and uncovering the full extent of what the government did with our client’s phones.”
The plaintiff, Blumenthal, declared:
“Judge Brinkema confirmed that the Trump administration violated my Fourth Amendment rights and clearly recognized the unconstitutional seizure of my phones as part of a wider assault on the freedom of the press. This was an important first step. It was also revealing to see the government resist any move toward exposing exactly why the order was given to violate my rights.”
At the outset of the hearing, Judge Brinkema cited the Fourth Circuit’s recent decision in Belmonte Cardozo v. United States, explaining that the court had “quite clearly drawn the line between a routine search of a cell phone at the border and a more intense or advanced search.”
On page 3 of the government’s own filing, it stated that CBP detained the phones to attempt an advanced search in which officers would “connect equipment, wired or wireless, to copy and/or analyze the contents of an electronic device.” Addressing that degree of intrusion, Judge Brinkema stated:
“I believe now under Fourth Circuit case law, a search warrant would be required for that degree of intrusion into a cell phone.”
ADC argued that federal officials cannot use border-search authority as a pretext for an invasive forensic examination where there is no legitimate law enforcement objective grounded in genuine criminal suspicion. When the government asserted that details concerning its attempted access were protected by law-enforcement privilege, Younes told the Court:
“…With respect to the law enforcement privilege, that doesn’t exist where there’s no legitimate law enforcement objective, which there was not here, for the reasons that we’ve stated and you’ve stated.”
The government asked the Court to rely on a CBP officer’s declaration asserting that officials had not accessed or retained information from the phones. Judge Brinkema declined to accept that declaration as sufficient, finding that the record did not establish what efforts officials made or the basis for the declarant’s knowledge:
“My concern is the factual predicate. That is, is there enough in this record to satisfy a neutral, which I am, that, in fact, no information was obtained from those phones.”
The Court continued:
“For example, we don’t know from the declaration what efforts were, in fact, made. We don’t know if somebody ran some password algorithm over the phone and tried to figure out how to get into it.”
Judge Brinkema also recognized the heightened constitutional concerns created by the seizure of a journalist’s devices:
“And I think given the fact that this plaintiff is a reporter, this case has particular concern to the Court because there’s been so much recently in the ether about attempts by the government to intrude upon a reporter’s right to report…I don’t think that can be overlooked in this context.”
At its core, this case seeks to hold the government accountable when it has infringed the Fourth Amendment’s guarantee against unreasonable searches and seizures, particularly when government intrusion interferes with a journalist’s ability to exercise his First Amendment rights. A reporter’s phone can contain an extensive and deeply sensitive record of the newsgathering process, including communications with confidential sources, unpublished reporting, private correspondence, photographs, and notes. An invasive search of that device therefore threatens both personal privacy and the freedom to gather and report news without government interference.
The case will test the limits of federal officials’ power over the private electronic devices of reporters and all Americans. ADC maintains that the government cannot avoid judicial scrutiny by returning a device after litigation begins while leaving unanswered what officials attempted to do with it and whether any information was obtained.
The Court also questioned why the phones were held for nearly a week, stating:
“I am concerned, because, again, of the nature of who the plaintiff is, the fact that these are two cell phones, and even a week is a long time…And, of course, we don’t know, had you all not filed your motion, how much longer they might have been kept.”
Discovery now begins, and with it the government will be required to answer fundamental questions about who handled Blumenthal’s phones, what methods were used, and whether any information was obtained. The answers will bear on a constitutional question with consequences far beyond this case: whether federal officials may use the border as a warrantless gateway into a journalist’s private devices. ADC will continue this fight to protect the Fourth Amendment and the First Amendment freedoms that depend on it, not only for Max Blumenthal, but for every American whose private digital life could be subject to government intrusion.
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