Trump’s penchant for talking could pose problems as Mar-a-Lago criminal case moves ahead

KIFI

Published June 20, 2023 1:59 PM

By ERIC TUCKER
Associated Press

WASHINGTON (AP) — Criminal defendants are routinely advised to avoid commenting on pending charges against them. But Donald Trump, the former president and current White House hopeful, is no ordinary defendant.

In his first televised interview since his arraignment last week on federal charges, the former president acknowledged that he delayed turning over boxes of documents despite being asked to do so, drew factually incorrect parallels between his case and classified document probes concerning other politicians, and claimed he didn’t actually have a Pentagon attack plan that the indictment says he boasted about to others.

Those comments — like any remarks made by a defendant about an ongoing case — could complicate his lawyers’ work, potentially precluding defenses they might have otherwise wanted to make or alternately boxing them into certain arguments so as to remain consistent with their clients’ claims. The interview could give the Justice Department compelling, and admissible, insight into Trump’s state of mind as the case moves forward, allowing prosecutors to preemptively attack defenses he might intend to invoke.

“If my client went on TV and said everything that he said, I might have fainted,” said Jeffrey Jacobovitz, a Washington criminal defense lawyer.

The interview with Fox News aired just hours after a federal magistrate judge granted a Justice Department request for a protective order in the case that would prevent the public disclosure of evidence provided to the Trump team through the information-sharing process known as discovery, though nothing said in the interview would seem to have run afoul of that directive.

It’s part of a long-running pattern by Trump, who is also seeking the 2024 Republican presidential nomination, of commenting openly about legal matters. Sometimes those comments have been to his own detriment, including last month when E. Jean Carroll, the advice columnist who won a $5 million sexual abuse and defamation award against Trump, sought at least $10 million more over remarks he made after the verdict.

The stakes are even higher in a criminal case.

“You typically say to your clients, ‘Don’t make any statements. Direct people to me,’” said Richard Serafini, a former Justice Department official and Florida defense lawyer. “Just politely decline to make any comment about the case and let your attorney do any commenting for you.”

A Trump campaign spokesperson did not immediately respond to a question seeking comment about the Fox interview.

The indictment filed by Justice Department special counsel Jack Smith charges Trump with illegally retaining classified documents at Mar-a-Lago and obstructing government efforts to recover them, including by asking an aide to relocate boxes before a visit by investigators and suggesting that his lawyer hide or destroy documents demanded by a grand jury subpoena.

In the interview Monday night, Trump repeatedly denied wrongdoing.

But in so doing, he seemed to undercut potential future arguments from his lawyers that he was not intimately involved in the handling of the boxes, or that he had moved quickly to cooperate with demands to give the records back. He asserted incorrectly that he was entitled under the Presidential Records Act to retain the documents that he took with him from the White House and acknowledged that he delayed giving the boxes over because he wanted to first remove personal belongings that investigators say were commingled with the files — something he suggested he had been too busy to do.

Asked about an allegation in the indictment that he told his lawyer to tell the Justice Department that a subpoena for records had been fully complied with, he said, “Before I send boxes over, I have to take all of my things out. These boxes were interspersed with all sorts of things: golf shirts, clothing, pants, shoes. There were many things.”

“He’s essentially admitting that he knew the documents were there,” Jacobovitz said. “That’s inconsistent with saying, ‘It was planted there.’”

One of Trump’s GOP rivals, former New Jersey Gov. Chris Christie, said the procrastination excuse, in his mind, served as proof of obstruction of justice, given that Trump is alleged to have caused his lawyers to certify to the Justice Department, incorrectly, that the requested classified materials had been returned.

“It appears to me last night, as a former prosecutor, that he admitted obstruction of justice on the air last night,” Christie said. “I can tell you this: His lawyers this morning are jumping out of whatever window they’re near.”

In addition, Trump denied the Justice Department’s characterization of a core allegation in the indictment — that during a 2021 meeting at his golf club in Bedminster, New Jersey, he showed off a Pentagon “plan of attack” and told others that it was “secret” information that he could no longer declassify because he wasn’t president anymore. But Trump, in the interview, denied that he was holding a specific document.

“There was no document. That was a massive amount of papers and everything else, talking about Iran and other things,” Trump told Fox News host Bret Baier. “And it may have been held up or may not, but that was not a document. I didn’t have a document, per se. There was nothing to declassify. These were newspaper stories, magazine stories and articles.”

The episode detailed in the indictment is based on an audio recording obtained by prosecutors, who could also presumably call as witnesses people who were present for the Bedminster encounter to testify abdut the document that’s alleged to have been showed off.

But as is always the case with Trump, the court of public opinion matters too. Well-practiced in legal delay tactics, Trump could hope to drag out the proceeding so long that a trial does not conclude until after the election.

Meanwhile, the judge in the case, Aileen Cannon, on Monday set an initial Aug. 14 trial date, though that will unquestionably slip given the complexities of a criminal case centering on sensitive classified information.