How candidate Trump’s claims boost legal risks for defendant Trump

As prosecutors and lawyers for Donald Trump spar over the former president’s public statements, Trump the candidate keeps saying things that could hurt Trump the defendant’s chances in court.

In the span of about six months, Trump has been charged in four separate indictments while simultaneously running for president. On the campaign trail, the former president has attacked the prosecutors, witnesses and alleged evidence against him in ways that seem to have only strengthened his wide lead atop the GOP field.

Some of Trump’s public statements have already gotten him in legal hot water, with a partial gag order issued in a civil business fraud trial that is underway in New York, and a hearing Monday on a broader possible gag order in Trump’s D.C. criminal case.

But the bombastic diatribes are also giving prosecutors new material that could be used at trial to prove elements of the criminal charges against the former president. If special counsel Jack Smith succeeds in his quest for a gag order on Trump, prosecutors could lose one of their best sources of incriminating information — Trump’s mouth.

Smith has charged Trump with dozens of felonies for allegedly hoarding national security secrets after his presidency, and trying to obstruct government efforts to recover those documents. Trump has pleaded not guilty. Yet at a Wednesday night rally in Florida, Trump boasted anew about information that he suggested might be classified, and he repeated past claims that he was justified in keeping sensitive documents at his Mar-a-Lago home and private club.

“I don’t think this has ever been told,” he said to the rally hosted by Club 47, a group trying to get him reelected. “They’ll say, ‘Oh, it’s classified information.’ Maybe it is, but I don’t think so.”

The former president then proceeded to tell a story about a U.S. operation in 2020 that killed Gen. Qasem Soleimani, the head of Iran’s Quds Force. Trump claimed that Israel was an important partner in the effort but backed out at the last minute. “We had everything all set to go, and the night before it happened, I got a call that Israel would not be participating in this attack,” Trump said. “Nobody’s heard this story before, but I’d like to tell it to Club 47 because you’ve been so loyal and so beautiful.”

One former intelligence official who served during the Trump administration reacted with dismay when told of Trump’s remarks. The official, who spoke on the condition of anonymity to discuss sensitive material, said that what the former president discussed was classified information when the former official was in government.

In his speech, Trump went on to defend himself against the charges in the classified documents case, declaring: “I can do whatever I want, but I did nothing wrong.”

It was far from the first time Trump has made such claims, sometimes asserting that the Presidential Records Act protects him from prosecution — a claim that has been called false by multiple national security lawyers.

Whether Trump’s Soleimani story is true or not, the comments could easily be used by prosecutors at trial to show Trump’s intentions and state of mind, and argue to a jury that even after his indictment, the former president shows a willful disregard for protecting national security secrets.

“Trump’s public statements erode his defenses enormously,” said Ty Cobb, who served as a White House lawyer in the Trump administration but has become an outspoken public critic of the former president. “Flip-flopping between ‘I had the power’ with the classified documents and “there was a process” — both acknowledge the possession of the classified documents.”

Cobb also pointed to a particularly self-destructive claim made by Trump not long after his indictment. He said an alleged incident involving a classified document about Iran never happened — only to have a recording of the conversation come to light and a criminal charge about that specific document added to his indictment.

“Lying about it is compelling evidence as to consciousness of guilt,” Cobb said. “The prosecutors can play that snippet every day if they want, and they will play that and other interviews at will. He has confessed publicly, though perhaps unknowing, to virtually every element of the Mar a Lago case. ... Every unscripted thing he says hurts him.”

Asked for comment, Trump spokesman Steven Cheung said he and his lawyers “are fighting together — in the courtroom and in the court of public opinion” against what they charge are leaks by the Biden administration and politically motivated prosecutions.

Trump also regularly makes declarations about the 2020 election that may be used against him someday in court.

In the federal obstruction case charged in Washington, Trump is accused of knowingly lying about the 2020 vote counts, even after being told his claims of massive fraud were false, and using those lies to try to stop Joe Biden from becoming president.

In an interview with NBC’s “Meet The Press” last month, Trump kneecapped a key defense strategy his lawyers have raised in that case — that he was fighting the election results based on advice from attorneys.

Trump said in the interview that he decided for himself the election was stolen from him. “It was my decision,” the former president said, though he acknowledged he also listened to lawyers. “You know who I listen to? Myself. I saw what happened.”

Such public declarations have frustrated some of Trump’s advisers and lawyers, according to a person familiar with the internal conversations who spoke on the condition of anonymity to discuss them. Some of the lawyers and advisers see the former president as frequently sabotaging his defense, even as he insists he knows how to fight multiple legal battles, this person said.

A person close to Trump said that his legal team has never urged him not to post on social media but conceded that some of the former president’s posts had complicated his legal cases and the ability of lawyers to do their jobs. This person said Trump’s lawyers understood he had to fight back publicly because he is running for president.
 

Trump’s lawyers plan to argue at the hearing that such an action by Chutkan would be a violation of Trump’s constitutional rights, limiting the speech of a presidential candidate.

Far from treating the criminal charges against him as an albatross, Trump has publicly embraced the issue, issuing numerous fundraising pitches that use the indictments as a rallying cry for donations. His advisers say digital pitches that mention the indictments do better than other topics, and Trump has noted how his crowds respond robustly to his speeches when he talks about the prosecutors who are bringing cases against him in D.C., Florida, Georgia and New York.

One adviser, who like others spoke on the condition of anonymity to discuss internal strategy, said that the indictments had helped Trump with a political problem: Small-dollar donors were not giving at levels like they had in the past, and some data showed sagging enthusiasm for his candidacy.

Trump’s political strategy is to attack the prosecutors and portray himself as a victim, while his legal strategy is to delay the trials as long as possible, hopefully until after the election, advisers said. He does not typically seek preapproval from his lawyers for his social media posts, and those lawyers often find out what he’s said at the same time as the rest of the public, according to the advisers.

When lawyers have urged Trump to let them do the fighting, in court, the former president has often argued that there is a need to fight in the court of public opinion. For decades, Trump has conducted his life, in his view successfully, making inflammatory statements and attacking his critics.

One former Trump lawyer said that during the investigation of potential Russian interference in the 2016 election, the president’s attorneys urged him in an Oval Office meeting not to tweet about special counsel Robert S. Mueller III or the probe itself. While they were walking down Executive Drive to leave the White House, their phones buzzed with a Trump tweet defying the lawyers’ request.

A gag order could, in theory, scramble what has so far been a successful campaign strategy for Trump.

But if prosecutors get their wish and successfully muzzle the former president from talking about witnesses, evidence or the courts, they might also suffer, legal experts say.

“I understand why the prosecutors are trying to get a gag order, but they should be a little careful what they wish for, because every time the guy opens his mouth he seems to dig himself a deeper hole,” said Jim Walden, a lawyer and former federal prosecutor in New York, who is skeptical that a gag order on Trump would even work.

In most cases, the mere threat of a gag order would prevent a defendant or their lawyer from making aggressive public comments about the case, in part because judges can jail or fine people who violate court orders.

But in Trump’s situation, his status as a high-profile political candidate and his repeated efforts to try to characterize the criminal charges against him as an unfair punishment for exercising free speech make the issue of a gag order a politically and legally loaded proposition.

“There is no gag order that is going to stop him, no one is really going to put him in jail during this period of time, so a gag order is at best an ineffective tool to keep him quiet,” Walden said.

Cheung, the Trump spokesman, said gag orders would further limit his constitutional rights. “We anticipate further actions to silence President Trump and tilt the scales of justice in their favor as his lead in the polls grows stronger each day. They do not trust the American people to make their own decisions, we do.”

Chutkan has other options besides a gag order with a threat of jail if Trump doesn’t comply. She could summon Trump to court and admonish him directly, subject him to escalating fines with each confirmed violation, or threaten to move up his trial.

It is currently scheduled to start in March, a day before the busiest presidential primary of the year.

Isaac Arnsdorf contributed to this report.