Alan Dershowitz is a lawyer, 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 rate the strength of Donald Trump’s federal indictment?
Dershowitz: This indictment is stronger than I anticipated in one way and one way only.
It contains the text of a conversation between former President Trump and a writer in which Trump says: Listen, I know these documents I have in my hands are secret. I could have declassified them. I did not do it. Here I will show them to you to prove my point.
This appears to be proof that there were at least some documents that President Trump knew were not unclassified. He had them in his possession.
Whether the documents were actually given to an unauthorized person to read or were simply displayed before his eyes, in typical Trump bravado, the government will have to prove.
DailyMail.com: Do you think Donald Trump is going to jail?
Dershowitz: I would think he probably wouldn’t go to jail, but I would warn him to make sure he doesn’t say anything more. This increases those chances.
Once, someone I know gave him a gift of a fish that had been caught, stuffed and put on a plate. And the plaque said, ‘If I had only kept my mouth shut, I’d still be swimming.’
Alan Dershowitz is a lawyer, 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 is going to have to look in the mirror and say, “Why did I let myself be recorded in a conversation with a writer when I knew I was being recorded?”
Trump obviously has a history and reputation of talking too much and getting himself into trouble. This is perhaps the worst sentence he has ever uttered 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: Are you dismissing the obstruction of justice charges?
Dershowitz: The obstruction allegations are extremely weak – moving boxes and suggesting certain things to someone. These are cases that would never have been brought had President Trump not run as the leading contender against the incumbent.
But what’s so strong about this taped phone call is that it doesn’t rely on the credibility of the witnesses. He stands up.
And so, if I were Donald Trump, I would lose some sleep over this 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 aide, Waltine Nauta. Analysts say the indictment is designed to convince him to turn on Trump and testify against him. What impact does this have on Trump’s case?
Dershowitz: Reverse witnesses don’t make the best witnesses because good lawyers can cross-examine them and expose to the jury their motivation to save themselves.
We know that prosecutors can pressure reverse witnesses not just 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 himself into trouble. This is perhaps the worst sentence he has ever uttered in terms of his own protection from criminal prosecution.
Dershowitz: Overthrown witnesses don’t make the best witnesses because good lawyers can cross-examine them and expose to the jury their motivation to save themselves. (Above) Waltine Nauta, valet and personal assistant to Donald Trump at the White House
This is why the tape is so important. You don’t need a reverse witness to testify to the conversation that took place with the writer.
DailyMail.com: The indictment exposes an alleged conspiracy to hide classified documents from the federal government. Does this make the obstruction charges more serious?
Dershowitz: If it can be proven that there was an intention to hide classified documents to ensure that the federal government never obtained them, it could be serious. But the fact that Trump didn’t destroy them, however, would undermine that.
This may have been a ploy to avoid having the documents subject to a search warrant. And that would raise an interesting question.
Suppose a lawyer says look, you’re going to get a search warrant and they’re just going to search your private offices. Could the attorney recommend that the boxes be moved to another area, kept, but moved to another area, so the search warrant would not cover it? Would this be an obstruction of justice?
Maybe. But it’s not so clear.
The easy cases of obstruction of justice are those where evidence is destroyed. And there have been many such cases – Richard Nixon, of course. He also bribed witnesses.
The Nixon affair is the norm for former presidents, current presidents, presidential aspirants. And I don’t think that standard has been met by this indictment.
DailyMail.com: What significance do you place on Trump’s defense that he had the ability to declassify information?
Dershowitz: His request for declassification is strong because the burden of proof is likely on the government. They have to prove he didn’t declassify. He does not have to prove that he declassified.
It will still come back because there are documents that are the subject of the defense that they have been declassified.
I think the prosecution made a tactical mistake by charging too much, including too much questionable stuff.
If I was a prosecutor, I would have had a much shorter indictment focused on that one conversation, maybe a few conversations with the lawyers.
Dershowitz: The obstruction allegations are extremely weak – moving boxes and suggesting certain things to someone. These are cases that would never have been brought had President Trump not run as the leading contender against the incumbent.
Dershowitz: I think the prosecution made a tactical error in charging too much, including too much questionable stuff. (Above) Special Advisor Jack Smith
But I wouldn’t have included 32 counts under the Espionage Act. I think that tends to distract the jurors from the central point.
I have seen many cases lost by prosecutors because they overcharged and presented too much evidence that did not convince the jury.
And the jurors are like, oh my God, if they’re going to prosecute him on these weak charges, how can we trust them on the strong charges?
Now, what Justice Department special counsel Jack Smith did that was very clever, in order to try to distinguish this case from the cases involving Hillary Clinton, President Biden and Vice President Pence, is that he charged Trump, not under the laws that people are usually charged with, namely negligence or gross negligence in handling classified material.
Smith charged Trump under a much higher level law, which requires willpower. It will be harder to prove.
But it will distinguish the Trump case from the Biden case and the Hillary Clinton case, at least on the allegations.
Now, the facts might 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, that’s not the same as what happened to Clinton.
FBI Director James Comey said that never in history has anyone been prosecuted for careless handling of materials. People have been prosecuted, of course, for deliberately transmitting classified documents.
