01:14 - Source: CNN
Trump may ask FBI to review policies after Stone raid

Editor’s Note: James A. Gagliano is a CNN law enforcement analyst and a retired FBI supervisory special agent. He also is an adjunct assistant professor at St. John’s University in Queens, New York. Follow him on Twitter: @JamesAGagliano. The views expressed in this commentary are his own. View more opinion on CNN.

CNN —  

The FBI’s predawn Friday raid at the home of former consultant to the Trump campaign, Roger Stone, has come under unwarranted fire. Acting under the direction of the special counsel’s office, the bureau was directed to safely apprehend Stone, and then carry out a search warrant for material items relevant to the ongoing investigation into potential ties between the Trump campaign and the Kremlin during the 2016 presidential election.

Sadly, Stone is attempting to spin a false narrative surrounding the raid. After his release on $250,000 bond, Stone charged that the raid had unnecessarily “terrorized” his wife and two dogs, and then in a later statement outside his Fort Lauderdale home, he doubled down, outrageously claiming the raid was executed with “a greater force than was used to take down bin Laden or El Chapo or Pablo Escobar.”

James Gagliano
James Ferrara
James Gagliano

The wild hyperbole served as expected catnip for President Donald Trump. In a wide-ranging Oval Office interview with The Daily Caller, Trump was asked his thoughts on FBI arrest protocols, and described it as “very unusual” and “very sad.”

Senate Judiciary Committee Chairman Lindsey Graham, R-South Carolina, also tweeted out a two-page letter to FBI Director Christopher Wray, seeking “justification for the tactics and timing” of Stone’s arrest. Graham charged that “the American public has had enough of the media circus that surrounds the special counsel’s investigation.” He further described the arrest as a “spectacle,” and laid out five questions for the FBI director, in advance of a scheduled FBI briefing on the operation to the committee on February 5.

I have served as a US Army officer, tasked to respond to numerous “congressional inquiries,” like Graham’s, and also retired as a 25-year FBI veteran who was appointed a SWAT senior team leader, responsible for planning and executing innumerable arrest operations. At the end of my career, I also oversaw the public affairs and media relations operations of the FBI’s New York office. With these as my bona fides, and absent any insider information, I voluntarily offer to respond to Graham’s five questions.

Why was it necessary to arrest Mr. Stone at his home in the early morning hours rather than working through his attorneys to permit him to surrender voluntarily?

Because federal arrests typically occur at 6 a.m. local time. In other words, this is the usual course of action – what our criminal justice system considers a reasonable hour, and designed to rouse groggy suspects who are less prepared to resist arrest. Furthermore, the arrest warrant for Stone was executed via a “knock and announce” tactic, which allows the subject a reasonable amount of time to respond to orders to open the door.

A few of the FBI agents could be seen in possession of mechanical breaching equipment – sledge hammers, Halligan tools, hydraulic door-jamb spreaders – related to the search warrant. Why? This may be due to concern that material evidence in the probe might be destroyed. Evidentiary items that interested the prosecution team may also have been withheld from the indictment in order not to tip off other potential defendants. This may also be another reason why the arrest team employed speed, surprise and a failsafe breach – prudent in similar cases where it is deemed necessary to ensure preservation of potential evidence.

And finally, “surrender voluntarily” is the exception – not the rule. Stone was charged in a seven-count felony indictment. His celebrity status affords him no special treatment. The only exception would be if the accused has acted in good faith, and his attorney has negotiated a peaceful surrender with the prosecutor.

Was the manner of Mr. Stone’s arrest consistent with the procedures, and procedures for the arrests of, similarly charged individuals?

Yes. Stone was charged with obstruction, making false statements and witness tampering. More specifically, he allegedly said, “Prepare to die (expletive),” and I will “take that dog away from you” to a potential witness.

As I explain in my Washington Examiner piece, much has also been made of the unnecessary adjective – “armed” – when describing FBI agents accused of “brandishing weapons.” FBI agents were granted arrest powers and congressional authorization to carry firearms in 1934, after the murder of an agent during the Kansas City Massacre of 1933. Weapons are necessary tools for a dangerous job – depriving the accused of their liberty and bringing them forward to face justice.

Some have argued that 29 agents were “too many” for this type of apprehension. They have described Stone as a “white-collar criminal” and questioned why the robust law enforcement presence for one 66-year-old man. Arrests are complex operations that require anticipating any and every possible outcome and establishing a contingency action for it.

Here’s the general rule of thumb: Arrest one, bring 10. Arrest 10, bring 100. Overwhelming numbers remove the fight-or-flight instincts in the cornered or desperate. This keeps the target, as well as the arrest team, safe. For this exercise, I conducted a tactical assessment for the Stone operation, using my experience as a critical incident commander as the baseline. I quickly saw how easy it is for personnel ranks to swell, considering the following “rough estimate” needs here: onscene command (1-2), arrest team (5-7), breach team (2-3), outer perimeter (4-5), surveillance team (2-4), crisis negotiator (1-2), log keeper (1), evidence response (crime scene) team members (4-5), evidence photographer (1), public affairs (1) and subject transport team (3). With Stone’s residence positioned along a canal, yes, maritime assets (2) would have been stationed there, as well.

These are not luxuries; they are a necessity. And for those who scoff that these types of arrests are not “dangerous,” it has been my experience that arrests of “benign” figures – white-collar fraudsters, corrupt politicians, even clergymen accused in a sex scandal – are often the ones with the most to lose, the ones who pose the biggest threat to themselves or others. Stone fit this category, especially in light of his alleged threats to a witness.

Were usual procedures for obtaining and executing arrest and search warrants followed with regard to Stone?

Yes. I served under Robert S. Mueller III for all 12 years of his FBI director tenure. He never cut corners or circumvented established Justice Department processes and protocols. Speculation that he or his team would skirt the judicial process – with the eyes of the world squarely affixed on their proceedings – is ludicrous.

Did the special counsel’s office issue a press release and provide the indictment to the media prior to informing Stone’s attorneys of the arrest?

If true, I am unsure if it would violate any department regulations or guidelines, but would be considered bad form regarding the professional working relationships between prosecutors and defense attorneys in the criminal justice system.

Did anyone at the FBI, DOJ or the special counsel’s office alert CNN, any other media outlet, or anyone outside of law enforcement that the arrest was going to occur on the morning of January 25, 2019?

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Speaking only for the FBI, I can unequivocally state that if what you ask occurred, it would be a serious breach of the agency’s clearly stated regulations regarding press engagement. If any evidence arises to indicate any FBI employee was responsible for an unauthorized disclosure, the Office of Professional Responsibility will investigate thoroughly, and if appropriate, refer the matter to the Inspector General’s Office for further action. As you know, the IG is currently reviewing charges of leaks from FBI headquarters and from within the New York office during 2016 and 2017. These allegations are always taken seriously.

CNN has released details regarding the positioning of a camera team outside Stone’s residence on Friday morning. They highlighted that their reporters assigned to the special counsel grand jury proceedings sensed “unusual grand jury activity” in the days leading up to the takedown. Having dealt with the rhythmic, systematic, methodical machinations of numerous grand jury proceedings, I concur that they are often fraught with predictable course direction and activity.