Alan Dershowitz is an attorney, professor at Harvard Law School, and author of ‘Get Trump: The Threat to Civil Liberties, Due Process, and Our Constitutional Rule of Law’
This interview with has been edited for length and clarity.
DailyMail.com: How do you assess the strength of the federal indictment against Donald Trump?
dershowitz: This accusation is stronger than I anticipated in one respect and in one respect only.
It has the text of a conversation between former President Trump and a writer in which Trump says: Look, I know that these documents in my hand are secret. I could have declassified them. I didn’t. Here, I’ll show them to you to prove my point.
That seems to be evidence that there were at least some documents that President Trump knew weren’t unclassified. He had them in his power.
Whether the documents were actually given to an unauthorized person to read or simply flashed before their eyes, as part of typical Trump bravado, the government will have to prove it.
DailyMail.com: Do you think Donald Trump will go to prison?
Dershowitz: I would think that he probably wouldn’t go to prison, but I would warn him to make sure he doesn’t say anything else. That increases those chances.
Someone I know once gave him a gift of a fish that had been caught and stuffed and put on a plate. And the plaque said, ‘If I’d just kept my mouth shut, I’d still be swimming.’
Alan Dershowitz is an attorney, professor at Harvard Law School, and author of ‘Get Trump: The Threat to Civil Liberties, Due Process, and Our Constitutional Rule of Law’
President Trump will have to look in the mirror and say, ‘Why did I allow myself to be recorded in conversation with a writer when I knew I was being recorded?’
Trump obviously has a history and a reputation for talking too much and getting into trouble. This may be the worst sentence he has ever handed down in terms of his own protection from criminal prosecution.
It’s the only page of the indictment that I think stands up to scrutiny.
DailyMail.com: Do you dismiss the obstruction of justice charges?
Dershowitz: The obstruction charges are extremely weak: moving boxes and suggesting certain things to someone. Those are cases that would never have been brought up if not for President Trump running as the frontrunner against the incumbent president.
But what’s so strong about that recorded phone call is that it’s not based on the credibility of witnesses. He stands out by himself.
So if I were Donald Trump, I’d be losing a little sleep over that page and the absurdity of why he had to say things like that when he knew they were being recorded.
DailyMail.com: There is a named co-conspirator in this case, Donald Trump’s White House valet and personal assistant Waltine Nauta. Analysts say the indictment is designed to convince him to turn on Trump and testify against him. How does that impact Trump’s case?
Dershowitz: Reverse witnesses are not the best witnesses because good lawyers can cross-examine them and present to the jury their motivation to save themselves.
We know that prosecutors can pressure reverse witnesses not only to sing, but sometimes to compose lyrics and music that the witness thinks the prosecutor wants to hear.
Dershowitz: Trump obviously has a history and a reputation for talking too much and getting into trouble. This may be the worst sentence he has ever handed down in terms of his own protection from criminal prosecution.
Dershowitz: Reverse witnesses are not the best witnesses because good lawyers can cross-examine them and present to the jury their motivation to save themselves. (Above) Donald Trump’s White House valet and personal assistant Waltine Nauta
That’s why the tape is so important. You do not need a reverse witness to testify about the conversation that occurred with the writer.
DailyMail.com: The indictment establishes an alleged conspiracy to conceal classified federal government documents. Does that make the obstruction charges more serious?
Dershowitz: If it can be proven that there was an intent to hide classified documents to make sure the federal government never got them, it could be serious. But the fact that Trump didn’t destroy them, however, would undermine that.
It may have been a plan to prevent the documents from becoming the subject of a search warrant. And that would raise an interesting question.
Suppose a lawyer says: look, you are going to be subject to a search warrant and they are only going to search your private offices. Could the lawyer recommend that the boxes be moved to a different area, kept, but moved to a different area, so the search warrant doesn’t cover them? Would that be an obstruction of justice?
Maybe. But it is not so clear.
The easy cases of obstruction of justice are when evidence is destroyed. And there have been many cases like that: Richard Nixon, obviously. He also bribed witnesses.
The Nixon case is the standard for former presidents, current presidents, presidential hopefuls. And I don’t think that standard has been met with this indictment.
DailyMail.com: How much value do you place on Trump’s defense that he had the ability to declassify information?
Dershowitz: His declassification claim is strong because the burden of proof likely falls on the government. They have to prove that he did not declassify. You do not have to prove that you declassified.
That will continue to come up because there are materials that are subject to the defense that they were declassified.
I think the prosecution made a tactical error by overcharging, by including too much questionable stuff.
If I were a prosecutor, I would have had a much shorter indictment centered around that conversation, maybe some conversations with the lawyers.
Dershowitz: The obstruction charges are extremely weak: moving boxes and suggesting certain things to someone. Those are cases that would never have been brought up if not for President Trump running as the frontrunner against the incumbent president.
Dershowitz: I think the prosecution made a tactical error by overcharging, by including too much questionable stuff. (Above) Special Counsel Jack Smith
But it would not have included 32 charges under the Espionage Act. I think that tends to divert the attention of the jurors from the central point.
I have seen many cases lost by prosecutors because they over-charged and over-presented evidence that failed to convince the jury.
And the jury says to itself, oh my gosh, if they plan to go after him on these weak charges, how can we trust them on the strong charges?
Now, what the Justice Department special counsel, Jack Smith, who was very smart, did to try to distinguish this case from cases involving Hillary Clinton, President Biden, and Vice President Pence, did he impeach Trump, didn’t he under the statutes that people usually have? accused, namely negligence or gross negligence in the handling of classified material.
Smith charged Trump under a much higher-level statute, one that requires doggedness. It will be more difficult to prove.
But he will distinguish the Trump case from the Biden case and the Hillary Clinton case, at least in the allegations.
Now, the facts may not be that different between Hillary Clinton and President Trump, but the allegations are different. And that’s clearly an attempt to try to say, look, this is not the same thing that happened to Clinton.
FBI Director James Comey said that never in history has anyone been prosecuted for negligent handling of materials. People have obviously been prosecuted for knowingly transmitting classified material.
