After the FBI executed a search warrant at Mar-a-Lago on Monday, August 8, Fox News and many other right-wing media outlets were quick to leap to former President Donald Trump's defense — describing the search as government overreach and essentially telling their audience: If the FBI can go after Trump, you're next. Attorney Philip Rotner, in an article published by the conservative website The Bulwark on August 12, describes this type of messaging as "the O.J. Simpson defense."
Although The Bulwark itself is a right-leaning media outlet, the website is overtly anti-Trump and features a who's-who of well-known Never Trump conservatives, including Charlie Sykes, Bill Kristol, Mona Charen, Tim Miller and Amanda Carpenter. The Bulwark has become the go-to website for anti-Trump coverage from the right. And when Rotner describes Trump, his supporters and his allies as invoking the "O.J. Simpson defense," he certainly doesn't mean it in a positive way.
"In 1995," Rotner explains, "football great O.J. Simpson was tried for the murder of his ex-wife Nicole and her boyfriend Ronald Goldman the year before. The case against him looked airtight.… Yet Simpson was acquitted. His defense team turned the tables to portray law enforcement as the culprit and Simpson as the victim. They argued, without a shred of direct evidence, that all of the incriminating forensic evidence was either planted by police officers who were out to get Simpson or mishandled by bumbling investigators."
The attorney continues, "This week, it was Trump preemptively asserting the O.J. defense. By Tuesday morning, one of Trump's lawyers, Christina Bobb, was crying foul, suggesting that the FBI had planted evidence."
While Fox News pundits were trying to paint the FBI and the U.S. Department of Justice as heavy-handed persecutors of Donald Trump and the MAGA movement, mainstream media outlets like CNN, MSNBC, the New York Times and the Washington Post were busy doing actual reporting and really digging into the FBI's reasons for the search. The Post and others reported that the FBI was looking for White House documents that shouldn't be stored on private property such as Mar-a-Lago; under the Presidential Records Act of 1978, official White House and presidential documents must be given to the federal government after a president leaves office — they are government property, not private property. And on August 12, the Post reported that according to sources, the FBI agents who searched Mar-a-Lago were looking for, among other things, "classified documents relating to nuclear weapons."
Rotner stresses that the problem with "preemptively invoking the O.J. defense" is that it "strongly suggests consciousness of guilt."
"The allure of the O.J. defense to Team Trump, of course, is that it erases everything," Rotner argues. "It doesn't matter how incriminating the evidence is against him. Whatever the evidence, if Team Trump can convince people that it was planted, it's toothless as far as the public is concerned. So, it is incumbent on the government to get this right. We can only hope that the FBI agents who conducted the search created a meticulous record of what they found at Mar-a-Lago and where they found it. Without a bulletproof chain of custody, Trump's O.J. defense could work — just like it worked for O.J., no matter what they actually found."
