Trump Brings Out the Worst in His Enemies, as He Undermines Himself

I f the Mar-a-Lago investigation is not the Trump classic — destroying himself while bringing out the worst in his opposition — I don’t know what is.

In yesterday’s column, I noted in passing that the FBI snapped a photo of some of the classified documents seized in Trump’s Florida estate. I don’t know who thought this was a good idea. I’d have guessed it must have been some over-exuberant young agents . . . except this was the search of a former president’s home, in an effort to seize what the Justice Department suspected would be some of the nation’s most closely guarded defense secrets. I have to assume that the FBI sent the A-Team, not the clown car, to run this operation.

It had to be high-ranking, experienced agents who decided to stage the photo. God knows what they were thinking but, obviously, the Justice Department must have thought this was swell, too: Government lawyers (including Jay Bratt, a section chief from the National Security Division) included the photograph in their court filing (see here, “Attachment F”). The point, patently, was to stick it to Trump. Certainly, the district judge in Florida did not need a staged photograph in order to understand the government’s very straightforward (and well argued) legal claims.

It is appropriate for the FBI to take photographs during the execution of a search warrant. The proper purpose is to memorialize the condition in which agents found things. The picture-taking is not for public consumption. It is to assist the testimony that agents who executed the search may be asked to provide months or (sometimes) even years after the search took place.

It is also a law-enforcement practice in some high-profile investigations to array evidence seized by search warrant in public displays, for media coverage, photographing, etc. Regardless of how routine the practice has become over the years, it is unsavory — even when what is displayed is patently criminal evidence (commonly, it is photos of drugs, illegal guns, cash clearly generated by drug sales, and so on).

At the time a search warrant is executed, no one has been convicted of anything. The seized items are not yet public-record information. Such items are also someone’s private property (and bear in mind that much of what is seized in a search tends not to be ostensibly criminal). Displaying the evidence so the law-enforcement agencies can take a victory lap is not just cheap theatrics. It undermines the presumption of innocence that the Justice Department is supposed to uphold.

In the specific case of the Mar-a-Lago search, moreover, the principal crime under investigation is the careless, irresponsible mishandling of government intelligence. How does it promote the careful, responsible handling of government intelligence for FBI agents to dump classified documents on the floor so they can orchestrate a photograph of them? Not only does it suggest that they were cavalier in the way they went about their work (and I hope they weren’t, and that this was just a momentary lapse); it had to be obvious to anyone with an IQ over eleven that Trump would race out and proclaim that the FBI smeared him — that they schemed to make his actions and the conditions under which he maintained files look worse than they actually were. Given that the FBI has already given Trump supporters plenty of reason to believe they smear him as a matter of course, why play into that?

Of course, we’re talking about jackassery here, so the former president was not to be outdone. He put out a statement yesterday on his social-media site that has to be read to be believed:

There seems to be confusion as to the “picture” where documents were sloppily thrown on the floor and then released photographically for the world to see, as if that’s what the FBI found when they broke into my home. Wrong! They took them out of cartons and spread them around on the carpet, making it look like a big “find” for them. They dropped them, not me — Very deceiving. . . . And remember, we could have NO representative, including lawyers, present during the Raid. They were told to wait outside.

This illustrates one of the main reasons why Trump is reportedly having trouble finding good lawyers willing to represent him.

I’m sure it was cathartic to take public shots at the FBI, which Trump regards as his arch nemesis — the shock troops of the corrupt Deep State, which he hopes to portray as the rationale for his 2024 presidential campaign. But at the moment, Trump is in serious legal jeopardy. On that score, the statement is a damaging admission, which may very well be used against him in court.

In essence, Trump’s post says that he possessed classified documents, which he kept in cartons. This, despite his representatives’ having two months earlier told the grand jury, under oath, that he had surrendered all documents that were responsive to a May 11 subpoena demanding that he surrender any classified documents — a sworn statement provided in the course of giving the FBI 38 classified documents (which, of course, did not include what Trump now says he was keeping in cartons, among other places from which the FBI seized them on August 8).

What’s more, this seems like Trump’s zillionth version of events. He didn’t have classified documents. Then he had them, but he declassified them pursuant to a standing order that no one has produced and that some senior Trump security officials said didn’t exist. Then they were declassified because he could just pronounce them declassified, or even imagine them into declassified status . . . notwithstanding that, when he’d gotten a grand-jury subpoena demanding the production of classified documents, he surrendered what were represented to be 38 classified documents — he never said, “I already declassified them, so I do not possess any classified documents responsive to the subpoena.” Then, more recently, he suggested that if damning evidence had been found at Mar-a-Lago, such as classified documents that should not have been there, it must have been because the FBI planted them. Now, it turns out that the FBI did not plant them — they pulled them out of the cartons in which Trump stored them.

It is dizzying to try to keep track of the shifting, internally contradictory explanations. But an experienced defense lawyer would try to get through to the former president that this is what often happens in false-statements cases that the government wins. When people are telling the truth, their story tends not to change; by contrast, many shady people, who fear that they’ve been caught in misconduct, keep floating new and different stories as previously nonpublic facts get disclosed, hoping they’ll finally stumble on a story that works. Frequently, that exercise itself becomes the best evidence against them.

It’s tough to be a politician under criminal investigation. It is in the pol’s interest to be public and combative; it is in the suspect’s interest to pipe down and let his lawyers do the talking. In this perilous moment, former president Trump should put the politics aside. He won’t, of course, but he should.