As Donald Trump Plays Candidate and Criminal Defense Lawyer on TV, He Could Risk Losing His Criminal Trial

When it comes to the Mar-a-Lago documents case, Judge Aileen Cannon appears to be in a rush, and President Trump, fresh off an interview with Fox News’s Brett Baier, looks determined to play his own defense lawyer, at least on television. What his own lawyers think of his volubility — he asserted that he has “every right to those boxes” — is another question, though. In his effort to win the presidential primary, Mr. Trump could risk losing his criminal trial. The mogul’s loquaciousness could suggest that he views winning votes as a safer bet than swaying a jury or keeping his prosecutors guessing. Such are the tradeoffs of a presidential candidate doubling as a criminal defendant who rose to real fame as a celebrity television personality.Longtime litigator Harvey Silverglate, in an interview with the Sun, highlights the tension inherent in President Biden — ultimately responsible for all federal prosecutions — bringing a case against his chief political rival. Mr. Silverglate calls it a “terrible display of very bad judgment” and an act of “candidate suppression.” There is “no rush to do this,” he adds, despite the “powerful” evidence against Mr. Trump. Those intertwined legal and political realities snapped into focus after Judge Cannon, sitting at Miami, set a preliminary trial date of August 14 for Special Counsel Jack Smith’s case against the former president. Although that is liable to be pushed back, its imminence suggests that a trial will, in any event, take place well before the presidential election. That came just hours after Mr. Trump sat down — without his lawyers — with Mr. Baier and offered his theory of the case against him. That disquisition coincided with a protective order from the federal magistrate judge working the case, Bruce Reinhart, who last summer signed off on the warrant for the search at Mar-a-Lago.Judge Reinhart’s order, issued at Mr. Smith’s request, prohibits either side from “disclosing the Discovery Materials or their contents directly or indirectly to any person or entity other than persons employed to assist in the defense, persons who are interviewed as potential witnesses, counsel for potential witnesses, and other persons to whom the Court may authorize disclosure.”The order, meant to prevent the dissemination of materials turned over by prosecutors to Mr. Trump’s team, mandated that Mr. Trump and his valet, Waltine Nauta, “shall only have access to Discovery Materials under the direct supervision of Defense Counsel or a member of Defense Counsel’s staff. Defendants shall not retain copies of Discovery Material.”With this fresh regime of restriction on evidence in place, Mr. Trump took to television to provide a gloss on the 37-count indictment against him. The ears of lawyers on both sides likely perked to Mr. Baier’s interrogatory “Why did you have these very sensitive national security defense documents, like the war plans for a strike on Iran?” Investigators recovered hundreds of classified documents from Mr. Trump’s Palm Beach manse. The reference was to an alleged incident at Mr. Trump’s Bedminster golf course, where Mr. Smith reports that the former president references an attack plan against Iran before telling his interlocutors that “this is still secret, highly confidential” and acknowledging that it was unlawfully retained.According to a recording made of the discussion to aid in the preparation of a memoir by a former chief of staff, Mark Meadows, Mr. Trump added that “as president, I could have declassified it. Now I can’t, you know, but this is still a secret.” A transcript of that colloquy from August 2021, though, records Mr. Trump as saying “this is off the record, but — they presented me this.” Yet Mr. Trump told Mr. Baier that there “was a massive amount of papers and everything else talking about Iran and other things. 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.” Mr. Trump added that “these boxes were interspersed with all sorts of things, golf shirts, clothing, pants, shoes, there were many things.”Mr. Trump also offered a more general theory of his custodianship of the documents. When asked by Mr. Baier why he did not return the documents with dispatch, he responded that he wanted “to go through the boxes and get all my personal things out. I don’t want to hand that over to NARA” — The National Archives Administration — “yet, and I was very busy as you have sort of seen.” When pushed on why he delayed acceding to requests that the documents be returned in full, Mr. Trump added that “Before I send boxes over, I have to take all my things out. These boxes were interspersed with all sorts of things.” Mr. Smith’s indictment accused Mr. Trump of being “personally involved” in removing documents from the White House and keeping them away from federal authorities. If they are able to undermine Mr. Trump’s claims by, say, calling as witnesses those who were at Bedminster, Mr. Smith’s attorneys will likely argue that the comments to Mr. Baier are, under the Federal Rules of Evidence, an “admission against interest,” which the Legal Institute defines as “an out-of-court statement made by a party that is against their own pecuniary, proprietary, or penal interest.” While Mr. Trump will certainly be represented by an attorney at trial, the law does allow defendants to represent themselves in court as “pro se” litigants, a Latin term that means “on one’s own behalf.” Chapter 28 U.S.C. § 1654 ordains that in “all courts of the United States the parties may plead and conduct their own cases personally or by counsel.”

As Donald Trump Plays Candidate and Criminal Defense Lawyer on TV, He Could Risk Losing His Criminal Trial

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