Trump's 'planted evidence' claim unlikely to stand up in court
Bloomberg August 12, 2022
Donald Trump and his supporters are ratcheting up their claim that Federal Bureau of Investigation agents may have "planted" evidence when they searched his Mar-a-Lago home for missing White House records. But those claims are unlikely to stand up in court.
"Planting information anyone?" Trump said Friday in a social-media post criticizing the FBI for not allowing his lawyers to witness the search. In the post, Trump also denied a Washington Post report that the information sought by the FBI included records related to nuclear weapons.
In an effort to calm the outcry from Trump allies about the Monday search of the Florida compound, U.S. Attorney General Merrick Garland on Thursday asked a judge to unseal the warrant. He also said criticism of the FBI agents was unfounded, without mentioning the conspiracy theory.
Trump on Friday also called for the search warrant to be released and cast doubt on the document by suggesting they were "drawn up by radical left Democrats and possible future political opponents, who have a strong and powerful vested interest in attacking me."
The allegation of planted evidence is being pushed by Trump to fire up "deep state" conspiracy theorists who make up a significant portion of his supporters, says Neama Rahmani, a former federal prosecutor in San Diego.
"It's purely a PR statement with no legal ramifications whatsoever," Rahmani said. "No jury would ever accept that argument."
The claim could theoretically be used in Trump's defense if he were to be charged with any crimes, or he could raise the conspiracy theory in the search-warrant case. A judge ordered the Justice Department to report by 3 p.m. on Friday whether Trump intends to challenge the unsealing request.
Christopher Slobogin, director of the Criminal Justice Program at Vanderbilt University, said the planted-evidence claim is the sign of a "desperate man" and "doesn't make sense."
"It would be very stupid for the FBI to plant evidence," Slobogin said. "There are cameras all over the Mar-a-Lago compound. Plus, agents would have to have evidence to plant, and the whole point of the search is to find documents that are known not to be in possession of the government."
Still, the theory has gained traction with Republican lawmakers, including Rep. Marjorie Taylor Greene and Sen. Rand Paul. They've expressed outrage over the unprecedented search of a former president's home, saying it was politically motivated and designed to destroy Trump's 2024 campaign to win back the White House from President Joe Biden.
"I'm worried they might have planted something," Trump's personal attorney Alina Habba said Tuesday, a day after the search, during an appearance on Fox News. "At this point, who knows? I don't trust the government." Habba didn't immediately respond to a request for comment.
Trump has floated the theory on his social-media app, complaining FBI agents wouldn't let his lawyers "anywhere near the areas that were rummaged and otherwise looked at during the raid on Mar-a-Lago."
"Everyone was asked to leave the premises, they wanted to be left alone, without any witnesses to see what they were doing, taking or, hopefully not, 'planting,'" Trump said in the post.
Garland said he personally approved the request to search the former president's residence, and that the Justice Department asked a judge to unseal the search warrant.
"The department does not take such a decision lightly," Garland said during a press briefing.
The attorney general didn't respond specifically to claims that agents had planted evidence or were motivated by politics, but he did address what he called "unfounded attacks."
Garland said he would "not stand by silently when their integrity is unfairly attacked. The men and women of the FBI and the Justice Department are dedicated, patriotic public servants."
FBI Director Christopher A. Wray said in a statement that "unfounded attacks on the integrity of the FBI erode respect for the rule of law and are a grave disservice to the men and women who sacrifice so much to protect others. Violence and threats against law enforcement, including the FBI, are dangerous and should be deeply concerning to all Americans."
A federal judge signed off on the search warrant after finding there was probable cause that the search would yield evidence of crimes.
Justice Department investigators had already conducted a voluntary search of Mar-a-Lago earlier this year and pinpointed the exact boxes they were looking for, according to a person familiar with the matter. At the time, the investigators left without the boxes and advised Trump's people to add another lock on the door where they were being kept, the person said.
In court, prosecutors are required to prove how it obtained each piece of evidence by having FBI agents testify, said former federal prosecutor Barbara McQuade. "They keep a chain of custody by putting items into marked containers that they sign with their initials and date. Another agent then verifies it."
This isn't the only technical problem with the conspiracy theory.
The allegation of planted evidence "couldn't possibly be based on anything legitimate because there has been no evidence released about what was found in the search," said former federal prosecutor Jennifer Rodgers.
The move by Garland to unseal the warrant "calls Trump's bluff and puts him on the defensive," Rodgers said. "He now has to decide whether to object to release of the warrant or not, and if he does, that will look pretty strange given that he's claimed there is no basis for the action."
Bloomberg's Zoe Tillman contributed to this report.