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A Nightmare for Trump’s Defense Team: Everything He Says Can Be Used Against Him

6 minute read

At some point last week, Donald Trump’s lawyers got through to him. One day after a Georgia grand jury indicted him for trying to overturn the 2020 election, the former president announced on Tuesday that he would hold a press conference the following week to rebut the charges. The plan didn’t last for long. By Thursday, the whole thing was nixed. "My lawyers would prefer putting this, I believe, Irrefutable & Overwhelming evidence of Election Fraud & Irregularities in formal Legal Filings as we fight to dismiss this disgraceful Indictment," Trump wrote on Truth Social.

In other words, Trump’s attorneys seemingly convinced him of one of his most sacred rights as a criminal defendant: Mr. President, you have the right to remain silent.

But while his legal team may have dodged a bullet, for now, the problem isn’t going away. Trump is famous for his impromptu and incendiary pronouncements, whether through his rambling speeches or his social media tirades. Over the course of a long and arduous campaign, he will have ample opportunity to pontificate on his many prosecutions, meaning his lawyers, in all likelihood, won’t be able to protect Trump from himself for long. “No one has been able to manage Donald Trump, including Donald Trump,” says Whit Ayres, a veteran GOP strategist. “The effort to do so is virtually hopeless. I can't imagine being his defense attorney in one of these trials. You'd have to drink a case of Maalox every morning just to get through the day.”

Still, Trump has proven himself adept at turning scandal into political advantage. His mastery of survival and showmanship could help him clinch the Republican nomination—with each indictment, he has soared only further in the polls—but it also comes with a distinctive risk, as Trump’s comments could potentially be used against him in court.

“I think that the statements he's making can, and likely will do, substantial damage to him,” says Norm Eisen, who served as counsel for House Democrats on Trump’s first impeachment. “Additional statements can incriminate you. They can be the basis of worsening existing charges or superseding charges. They can be utilized as admissions while the trial is being prosecuted, whether or not Trump testifies. They run the risk of witness intimidation or harassment, which violate the terms of release for federal and state law.” 

Attorneys for Special Counsel Jack Smith have already alerted the judge overseeing the federal election subversion case against Trump about a Truth Social post that appeared to threaten prospective witnesses. “If you come after me, I’m coming after you,” Trump wrote in all caps. While Trump’s campaign insisted the post was meant as a warning to the former President’s political enemies, it was written in a way that left his intent open to interpretation. That kind of language from Trump could also become a problem for him in Georgia, where the conditions of a new $200,000 bond agreement stipulate that he refrain from intimidating a witness or co-defendant, including on social media.

It’s a dynamic that reveals the double-edged nature of Trump’s ploy to consolidate his political and legal strategies. “I think they're going to have a field day, because any prosecutor would tell you there are few things more powerful than using a defendant’s own statements in court,” says Temidayo Aganga-Williams, a former federal prosecutor who was a staff member on the Jan. 6 Committee. “You would tell jurors to act like this is any other person—if this were your son, your brother, your co-worker.” 

Trump has cast the four separate indictments against him as a partisan witch-hunt to stop him from reclaiming the White House. In both the federal and Georgia cases that allege he knowingly spread lies of election fraud to stay in power, Trump’s attorneys have argued that he was acting within his First Amendment rights to challenge the election outcome. They also insist that Trump believed his own claims and was therefore not operating with criminal intent. 

But while his lawyers are trying to exonerate him in court, his campaign has been using his predicament to capitalize on the campaign trail, sending out a stream of fundraising blasts after each arraignment and selling merchandise with fake Trump mug shots. The tactic has worked; the former President is currently leading the GOP field by 30-to-40 points in most surveys. “President Trump is dominating every single poll—both nationally and statewide—and his numbers keep going up,” Steven Cheung, a spokesperson for the Trump campaign, tells TIME. “The latest polls conducted after the last indictment show the American people are standing firmly with him against out-of-control Democrats.” 

Trump’s grip on the Republican base is one reason why most of his opponents haven’t attacked him over his legal woes. Instead, they seem to have made a calculation that the myriad prosecutors bringing criminal charges against Trump in the middle of an election year present the greatest threat to his Oval Office aspirations. A looming question that will be hanging over the first GOP primary debate Wednesday night is whether any of these cases will be resolved before voters head to the polls next year. 

Smith has requested the election case go to trial in January, while the federal judge overseeing the Mar-a-Lago documents case has already set a trial date for May 2024. Former prosecutors suspect that Smith is trying to move these cases along swiftly to avoid the possibility that Trump could put an end to them should he win the election, either by attempting to pardon himself or appointing an attorney general to squash the matter altogether. The Justice Department’s long-standing policy of avoiding even the appearance of interfering in an election adds another level of urgency to bring these cases to a conclusion.

Fani Willis, the Fulton County District Attorney, has more latitude. As a state prosecutor, she operates independently of the federal government, which allows her to keep prosecuting Trump even if he’s the sitting President of the United States. That helps to explain why she’s pursuing a more sprawling and complicated case, bringing racketeering charges against Trump and 18 allies with whom he allegedly conspired to nullify Joe Biden’s election victory. It may well be another reason why Trump’s lawyers tried to put the kibosh on his planned press conference, in which he was expected to propagate the disproven election fraud claims that sit at the heart of the Georgia indictment.

“In my more than three decades principally acting as a criminal defense lawyer,” Eisen says, “the first instruction I gave my client at the very first meeting was: Shut up about this case. Do not talk to anyone. You do not know how that is going to come back to harm you.” 

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