H aving been at the Trump trial in Manhattan for the last couple of days, I cannot say I’m surprised at former president Trump’s inane claim that President Biden authorized the use of lethal force in connection with the FBI’s execution of a court-authorized search warrant at Trump’s Mar-a-Lago estate.
The claim is political red meat for conspiracy theorists.
A search warrant is not a day at the circus (something I can’t say about days spent at the trial). Most are executed without incident; many are not. All of them involve a probable-cause finding that incriminating evidence will be recovered on the premises — which usually are associated with people suspected of crimes. Many of those crimes, though by no means all of them, are violent. Virtually all of them involve situations in which law-enforcement officials have concluded that if evidence is not seized, it might be destroyed or manipulated (in cases of nonviolent crimes involving generally law-abiding people who exhibit cooperation with police and prosecutors, the government usually secures evidence by means less intrusive than a compulsory search).
All search warrants involve the possibility of forced entry. All of them involve police seizures of property, which can subject the personnel involved to legal risks as well as safety risks. The cops or federal agents usually do a good job of identifying themselves during the process of seeking or forcing entry; yet there are tragic instances in which people inside the premises mistakenly believe violent criminals, rather than cops, are trying to get in, resulting in physical confrontations including, sometimes, exchanges of gunfire.
As a result, and as a matter of common sense, the FBI always has an operational plan for carrying out a court-authorized search. That plan customarily involves reminding the search teams of the FBI’s use-of-force policies. Those policies, of course, include a refresher on the conditions under which lethal force may be used. This is to prepare law-enforcement officials for contingencies that are all too familiar, and to protect the agency and agents in the event of later legal claims.
If you don’t instantly grasp why police agencies would perform these prudential steps, you must have been living under a rock for the last decade or so, which has featured no shortage of instances in which allegations of excessive police force have been made (and a thankfully small percentage of instances when excessive force was actually used), with intense scrutiny and occasional rioting in the aftermath.
It would have been surprising if the Mar-a-Lago search hadn’t been conducted in accordance with an operational plan of which use-of-force policies were a component. It was important to do this search by the book — more on that momentarily. But there was never anticipation that force, much less lethal force, would be used, and there was never any threat to the former president. My understanding is that the FBI was reluctant to do the search — it was Justice Department officials who ran out of patience with Trump’s intransigence. The bureau intentionally carried out the search when it was known that Trump was not on the premises.
The lethal-force claim is just stupid. But it’s par for the course. For weeks, we’ve watched a trial in which the former president has a strong defense: namely, that the nondisclosure agreements (NDAs) at issue were entirely legal, so it doesn’t matter — in terms of the criminal law — whether Trump had sex with Stormy Daniels in 2006 or reimbursed Michael Cohen in 2017 for the $130,000 Cohen laid out to buy Stormy’s silence in 2016. Yet Trump has spent weeks denying the tryst and even denying that he reimbursed Cohen, despite the mountain of contrary evidence. Out of one side of their mouths, his lawyers observe that NDAs are legal, but their counterintuitive manner of trying the case is to suggest the NDAs are incriminating by insisting it was all Cohen’s plan and Trump knew little if anything about it.
To be clear, it’s an outrageous case, and if the former president gets convicted it will be primarily due to abuses of power by Manhattan’s elected progressive Democratic district attorney and his cat’s-paw of a judge. But to say that the defense is counterproductive, that — all together now — Trump is his own worst enemy, may be an understatement.
With respect to the Mar-a-Lago search, Trump has strong claims of law-enforcement improprieties. The FBI’s decision to splay classified documents (with their covers marking them as such) so they could be photographed and publicized was abusive. (The purpose of photographing a search is to document the condition in which evidence was initially found, not to intimate that the subject of the investigation carelessly strewed it about.) In stating the crimes that justified the warrant, Justice Department prosecutors attempted to criminalize the Presidential Records Act, a civil-law provision. And in a mind-boggling screw-up, the FBI jumbled the documents seized and special counsel Jack Smith’s staff subsequently misrepresented to the court that the documents were maintained in the condition found — undermining both the integrity of the evidence and the prosecutors’ credibility.
So Trump has some cards to play. But, as ever, he is sapping the strength of his viable government-misconduct claims by falsely accusing the government of galactic misconduct — a nonsensical, utterly irresponsible claim.
’Twas ever thus.