Donald Trump speaks about his legal woes in a way that would make most defense attorneys wince.
A recent sampling: In a March interview on Fox News Channel, the Republican former president said he had “the right to take” classified documents with him to his Florida resort and wouldn’t say he hadn’t looked at the records since leaving office. During a CNN town hall this month, he said he told a Georgia elections official “you owe me” votes in the 2020 election.
At the same town hall on May 10 he insulted a female writer as a “wack job” — only a day after that same woman, E. Jean Carroll, won a $5 million judgment against him in a civil suit alleging defamation and sexual assault. On Monday, Carroll amended a lawsuit to hold him liable for the town hall remarks.
Trump, the leading contender for the 2024 Republican presidential nomination, has never hesitated to offer his opinion or joust with his antagonists. The problem, legal experts say, is that the former president is under intensifying scrutiny from state and federal prosecutors, and those same prosecutors can use the former president’s statements against him in a variety of ways.
“Any utterances by a defendant, whether they are confessions, denials, observations, nonsensical gibberish, or just plain goofy are nothing but pure gold for prosecutors,” said Julieanne Himelstein, a former assistant U.S. attorney in Washington.
Trump has found himself under investigation by prosecutors stretching from New York to Georgia.
He was indicted in March by a Manhattan grand jury on charges related to hush-money payments made on his behalf during the 2016 presidential campaign. On Tuesday, a New York judge set the trial to begin on March 25, in the midst of the primary contests. Trump, appearing via video conference, threw his hands up in frustration at the timing of the trial and glowered at the camera.
A local prosecutor in Georgia is investigating whether the former president and his allies broke the law in seeking to overturn his 2020 election loss. Fulton County District Attorney Fani Willis suggested last week that indictments could come in August. Meanwhile, a Justice Department special counsel is probing the former president’s role in the Jan. 6., 2021, insurrection and the discovery of classified documents at Mar-a-Largo, Trump’s Florida home and resort.
In recent media appearances and during rallies, Trump has made comments that could be seen as incriminating or, at the very least, complicate his legal team’s ability to beat back charges. He seemed to get into particular trouble during a May 10 town hall hosted by CNN.
The former president spent nearly an hour discussing a range of issues while also commenting on the investigations in ways that run counter to generally accepted legal advice. Not only did he re-insult Carroll and provide Fulton County’s prosecutor more fodder for her probe, but he also gave the Justice Department an opening by claiming he couldn’t recall whether he had shown classified documents to anyone.
Joyce Vance, a law professor who served as a U.S. attorney in Alabama under President Barack Obama, opined on Twitter: “There were prosecutors and agents taking notes tonight.”
Trump also suggested that he was personally involved in taking records to Mar-a-Lago — “I was there and I took what I took and it gets declassified,” he said. That statement is at odds with arguments made by his own lawyers, who as recently as last month suggested in a letter to Congress that the document removal was the “result of haphazard records-keeping and packing” rather than an intentional decision by Trump.
The statements are being made as the documents investigation shows signs of winding down and as Justice Department Special Counsel Jack Smith zeroes in on the question of potential obstruction, drilling into the failure by Trump and his representatives to return the classified records in his possession despite being issued a subpoena to do so.
Trump’s penchant for public statements was on display in the last special counsel investigation he faced. He famously told an interviewer in 2017 that he was thinking of “this Russia thing” when he fired former FBI director James Comey. His lawyers sought to explain away that statement by noting that he had also said that he knew that firing Comey would prolong, rather than shorten, the Russia probe.
Legal scholars said that prosecutors might not be able to use some of Trump’s comments if they are not relevant to the charges or might be deemed prejudicial by a judge.
They also may not need to play them to jurors because other evidence is much stronger. While Trump said on CNN that he told Brad Raffensperger “you owe me” votes, he was also tape recorded asking the Georgia elections official to “find” him more votes. The call came in January 2021 as Trump was desperately trying to overturn Georgia’s election result.
“It’s not inculpatory any more than the fact that we already have a recorded phone call,” said Anthony Michael Kreis, a law professor at Georgia State University. “It might be more damning had we not had the actual recording of the phone call.”
Former prosecutors and defense attorneys say a client’s public comments can hamstring how they present their cases to a jury. It can reveal their strategy and lock them into certain lines of attacking the prosecution’s case. Such comments might also encourage them to do everything they can to keep their client from taking the witness stand.
For example, they said, Trump may have admitted to taking classified documents from the White House but his lawyers wrote, “The purpose of this letter is not to opine about whether these documents are actually classified or have been declassified.”
If Trump were to ever testify, prosecutors could use such contradictory statements to poke holes in his story, making it harder for his defense team to tell the jury a coherent narrative.
“It could well be that what Trump is doing is making it impossible for him to testify because he’d be so damaged were he to testify,” said Richard Klein, a criminal law professor at Touro University in New York.
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