Washington: Criminal defendants are routinely advised to avoid commenting on pending charges against them. But Donald Trump, the former president and current White House hopeful, is no ordinary defendant.
In his first televised interview since his arraignment last week on federal charges, the former president acknowledged that he delayed turning over boxes of documents despite being asked to do so, drew factually incorrect parallels between his case and classified document probes concerning other politicians, and claimed he didn't actually have a Pentagon attack plan that the indictment says he boasted about to others.
Those comments — like any remarks made by a defendant about an ongoing case — could complicate his lawyers' work, potentially precluding defenses they might have otherwise wanted to make or alternately boxing them into certain arguments so as to remain consistent with their clients' claims. The interview could give the Justice Department compelling, and admissible, insight into Trump's state of mind as the case moves forward, allowing prosecutors to preemptively attack defenses he might intend to invoke.
"If my client went on TV and said everything that he said, I might have fainted," said Jeffrey Jacobovitz, a Washington criminal defense lawyer. The interview with Fox News aired just hours after a federal magistrate judge granted a Justice Department request for a protective order in the case that would prevent the public disclosure of evidence provided to the Trump team through the information-sharing process known as discovery, though nothing said in the interview would seem to have run afoul of that directive.
It's part of a long-running pattern by Trump, who is also seeking the 2024 Republican presidential nomination, of commenting openly about legal matters. Sometimes those comments have been to his own detriment, including last month when E. Jean Carroll, the advice columnist who won a $5 million sexual abuse and defamation award against Trump, sought at least $10 million more over remarks he made after the verdict.
The stakes are even higher in a criminal case. "You typically say to your clients, 'Don't make any statements. Direct people to me,'" said Richard Serafini, a former Justice Department official and Florida defense lawyer. "Just politely decline to make any comment about the case and let your attorney do any commenting for you." A Trump campaign spokesperson did not immediately respond to a question seeking comment about the Fox interview.
The indictment filed by Justice Department special counsel Jack Smith charges Trump with illegally retaining classified documents at Mar-a-Lago and obstructing government efforts to recover them, including by asking an aide to relocate boxes before a visit by investigators and suggesting that his lawyer hide or destroy documents demanded by a grand jury subpoena. In the interview Monday night, Trump repeatedly denied wrongdoing.
But in so doing, he seemed to undercut potential future arguments from his lawyers that he was not intimately involved in the handling of the boxes, or that he had moved quickly to cooperate with demands to give the records back. He asserted incorrectly that he was entitled under the Presidential Records Act to retain the documents that he took with him from the White House and acknowledged that he delayed giving the boxes over because he wanted to first remove personal belongings that investigators say were commingled with the files — something he suggested he had been too busy to do.