Trump prosecution has a 'heavy burden': Brett Tolman
Former federal prosecutor Brett Tolman discusses jury instructions in NY v. Trump on 'America Reports.'
It would certainly shock any American to hear that "use of deadly force" was authorized against you and your family, just as it did Tuesday for former President Donald Trump. As a former U.S. Attorney, I can tell you that it is Standard Operating Procedure(SOP) in a felony search warrant for the FBI to be authorized to use deadly force, but it’s downright frightening to imagine what could have happened at Mar-a-Lago in August of 2022 when a team of SWAT officers raided the residence of a U.S. President in the dead of night.
At the time, Trump was in New York, and luckily no one took up arms, but can anyone justify that this was acceptable protocol to apply the SOP of "use of deadly force" to a U.S. President who has active legal counsel as well as 24/7 Secret Service protection? What is and what isn’t SOP is one thing. Discretion and awareness are another. The Department of Justice (DOJ) and the Federal Bureau of Investigation (FBI) had the autonomy to execute the search warrant when they knew President Trump was out of town. They also had discretion to give notice and conduct the search without using "raid" tactics dictating the "use of deadly force" SOP.
So why did they not exercise such discretion to conduct the search as they often do through coordination with the target and their lawyers?
TRUMP HIGHLIGHTS BIDEN ADMIN AUTHORIZING ‘DEADLY USE OF FORCE’ IN MAR-A-LAGO RAID
President Trump plead not guilty to the 37-count indictment, but the ongoing investigation and court filings for the postponed trial brought the "deadly force" language to everyone’s attention. I’ve held TS/SCI security clearance and both prosecuted and defended federal cases involving national security issues—including unlawful retention of classified documents cases, and while my cases were on a smaller political scale, I can tell you that raids like these rarely happen when the target is represented and in communication with DOJ. In fact, the DOJ preference historically has been to avoid such raids when cooperation is occurring, as raids can be chaotic and unpredictably dangerous.
A view of former President Donald TrumpÂs Mar-a-Lago home on Tuesday, Aug. 9, 2022, in Palm Beach, Fla. The FBI conducted a search of Donald Trump's Mar-a-Lago estate on Monday, August 21, 2022. (Matias J. Ocner/Miami Herald/Tribune News Service via Getty Images)
Despite all of this, Attorney General Merrick Garland personally authorized the DOJ and FBI to wrangle a felony search warrant in response to the National Archives alleging that classified documents were not returned by Trump. Whether this warrant was a fishing expedition or political theater, the optics were clearly meant to tarnish President Trump.
We should all be questioning the DOJ and FBI on why the ‘use of deadly force’ is standard operating procedure in this case when it is so infrequently utilized in most, if not all, white-collar investigations.
The DOJ and FBI should have coordinated with Trump’s attorneys, conducted their search and avoided the raid. Even O.J. Simpson was afforded the professional courtesy through his attorney when it came time for Simpson to turn himself over to the authorities for murder charges. That kind of coordination with attorneys is not unprecedented, particularly not for high-profile individuals, and President Trump is arguably the most high-profile person in our country, if not the world.
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Steven D’Antuono, the assistant director-in-charge of the FBI’s Washington Field Office testified to this point before the House Judiciary Committee, expressing concern about executing the search warrant without the consent of one of Trump’s lawyers. Such protocol would have dialed down the temperature, removed the perception (or reality) of a politically tinged investigation, and almost certainly avoided the use of inappropriate and inflammatory "deadly use of force" language.
The felony warrant SOP and the entire raid on Mar-a-Lago is the definition of the political weaponization of our criminal justice system. While it’s absurd for anyone to think this was an assassination attempt against the president, I do think the inclusion of "deadly force" language in the search warrant was inappropriate and a massive oversight that highlights how much power we provide federal law enforcement.
What’s more troubling, and indicative that the DOJ and FBI can choose when to weaponize their power, is that the search warrant was for the residence of a known non-violent former U.S. president accused of a known record-keeping, non-violent offense. Why should SOP even allow for the use of deadly force in such an instance? All the police and criminal justice reform advocates should be up in arms at the abuse of power on display in this case. But it’s crickets.
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We should all be questioning the DOJ and FBI on why the "use of deadly force" is standard operating procedure in this case when it is so infrequently utilized in most, if not all, white-collar investigations. It’s concerning and easy to imagine what could have gone wrong in the Mar-a-Lago raid. We are giving our law enforcement too much deadly discretion -- especially in this heated political climate where law enforcement has incredible pressure to investigate and prosecute political opponents.
President Trump has been and will continue to be a target of political persecution, and if history tells us anything, it will continue to trail him indefinitely. The rank-and-file members of the FBI are servants and good men and women. But it is the leadership of the DOJ and FBI that failed here. They chose when to exercise discretion and when to hide behind the guise of "standard operating procedures." Nothing about this case, the charges, or the target are standard.