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 rate the strength of the federal indictments against Donald Trump?
Dershowitz: This charge is stronger than I expected in one respect, and in one respect only.
It contains the text of a conversation between former President Trump and a writer, in which Trump says, “Look, I know these documents I’m holding are classified.” I could have released them. I did not do it. Here I will show them to you to prove my point.
That appears to be evidence that there were at least some documents that President Trump knew were not unclassified. He had them in his possession.
The government must prove whether the documents were actually handed over to an unauthorized person for reading or whether they were only shown to him as part of the bravery typical of Trump.
DailyMail.com: Do you think Donald Trump will go 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. That increases those chances.
Someone I know once gave him a stuffed fish he had caught and put it on a plaque. And the plaque said, “If I’d just shut up, 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 let myself tape a conversation with a writer knowing I was being recorded?”
Trump obviously has a history and a reputation for talking too much and getting himself into trouble as a result. This is possibly the worst sentence he has ever uttered in terms of protecting himself from prosecution.
It’s the only page of the indictment that I think stands up to scrutiny.
DailyMail.com: Do you reject the allegation of obstruction of justice?
Dershowitz: The allegations of obstruction are extremely weak: you move boxes and suggest certain things to someone. These are cases that would never have been tried if President Trump had not been the front runner against the incumbent president.
But what is special about this one recorded phone call is that it is not based on the credibility of witnesses. It stands for itself.
And if I were Donald Trump, that one side and the absurdity of why he had to say such things knowing they were being recorded would make me sleep a little.
DailyMail.com: In this case, there is a co-conspirator named Waltine Nauta, Donald Trump’s valet and personal assistant at the White House. Analysts say the prosecution is designed to convince him to testify and testify against Trump. How does this affect Trump’s case?
Dershowitz: Swapped witnesses are not the best witnesses because good attorneys can cross-examine them and explain to the jury their motivation to save themselves.
We know that prosecutors can pressure substituted 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 himself into trouble. This is possibly the worst sentence he has ever uttered in terms of protecting himself from prosecution.
Dershowitz: Flipped witnesses aren’t the best witnesses because good attorneys can cross-examine them and reveal to the jury their motivation to save themselves. (Above) Donald Trump’s valet and personal assistant at the White House, Waltine Nauta
That’s why the band is so important. You don’t need a false witness to testify about the conversation with the author.
DailyMail.com: The indictment details an alleged conspiracy to keep classified documents secret from the federal government. Does this make the disability charges more serious?
Dershowitz: If it can be shown that there was an intention to hide classified documents to ensure the federal government never gets them, then things could be serious. But the fact that Trump didn’t destroy them would undermine that.
It may have been a plan to prevent the documents from being subject to a search warrant. And that would raise an interesting question.
Suppose a lawyer says: Look, you are subject to a search warrant and only your private offices will be searched. Could the attorney recommend moving the boxes to another location, conserving them but moving them to a different location so the search warrant doesn’t cover them? Would that be an obstruction of justice?
Perhaps. But it’s not that clear.
The simplest cases of obstruction of justice occur when evidence is destroyed. And there have been many such cases – Richard Nixon, of course. He also bribed witnesses.
The Nixon case is the standard for past presidents, current presidents and presidential candidates. And I don’t think these charges live up to that claim.
DailyMail.com: How much do you think Trump’s defense is that he had the ability to release information?
Dershowitz: His claim for declassification is valid as the burden of proof likely lies with the government. You have to prove that he didn’t release the secrecy. He does not have to prove that he has released the secrecy.
That will come up later because there are materials that are subject to declassification.
I think the prosecution made a tactical mistake by making too many charges and including too many questionable things.
If I were a prosecutor, I would have had a much shorter indictment that would have focused on that one conversation, maybe some conversations with the attorneys.
Dershowitz: The disability allegations are extremely weak – they move boxes and suggest certain things to someone. These are cases that would never have been tried if President Trump had not been the front runner against the incumbent president.
Dershowitz: I do think the prosecution made a tactical error by making too many allegations and including too many questionable things. (Above) Special Counsel Jack Smith
But I would not have included 32 cases under the Espionage Act. I think that tends to distract the jury’s attention from the main point.
I’ve seen many cases where prosecutors lost because they made too many charges and presented too much evidence that didn’t convince the jury.
And the jury is like, “Oh my God, if they’re planning on prosecuting him on these weak charges, how can we trust them on the strong charges?”
Now, Justice Department Special Counsel Jack Smith has been very clever in distinguishing this case from the cases involving Hillary Clinton, President Biden and Vice President Pence: He has indicted Trump, and not under the statutes that people normally use , namely negligence or gross negligence in handling classified information.
Smith has impeached Trump based on a much overriding law that requires premeditation. It will be harder to prove.
But it will separate the Trump case from the Biden case and from the Hillary Clinton case, at least as far as allegations are concerned.
Now, the facts between Hillary Clinton and President Trump may not be that different, but the allegations are different. And that’s clearly an attempt to say, Look, this isn’t the same as what happened to Clinton.
FBI Director James Comey said that never in history has anyone been prosecuted for negligent handling of materials. Apparently, individuals were prosecuted for the willful disclosure of classified information.