Former President Donald Trump may improve his chances of being acquitted on felony criminal charges if he stays tight-lipped on one topic, according to his former impeachment lawyer Alan Dershowitz.
Dershowitz, a member of Trump's legal team during his first impeachment, said during the latest episode of The Dershow podcast on Wednesday that the ex-president should avoid talking about any evidence ahead of his federal trial on 37 felony counts related to his post-presidency handling of classified documents.
Trump was criticized by multiple legal experts this week after commenting on a key piece of evidence in the documents case—a now-leaked audio recording that purportedly captures him saying that he did not declassify a document that he was openly discussing with people who lacked appropriate security clearances.
Despite the recording in which Trump is heard speaking about what he called a classified document outlining a plan to attack Iran amid the sound of rustling paper, the ex-president claimed during an ABC News interview on Tuesday that he was not referring to any classified materials, suggesting that he may have instead been referencing "plans of a golf course."
The former president's choice to repeatedly and openly speak about the government's evidence against him was creating "a problem" for his trial lawyers, according to Dershowitz, who added that he "would have advised Trump differently" if he were still a member of his legal team.
"I would not have advised him to comment on the evidence in the case," said Dershowitz. "I don't mind if he says this is a witch hunt ... Everybody has the right to do that ... But I surely would not have had him comment on the evidence ... Every time he speaks about the evidence, he creates a problem for his lawyers at trial."
Trump lawyer Todd Blanche declined Newsweek's request for comment on the remarks by Dershowitz. Newsweek has also reached out to Christopher Kise, Trump's other lawyer in the documents case, for comment via email.
Last week, U.S. Magistrate Judge Bruce Reinhart ordered that Trump be restricted from viewing discovery material in the documents case without supervision from his counsel, while also forbidding him from posting information related to the material on social media platforms like Truth Social.
In a Substack post on Tuesday, Dershowitz wrote that prosecutors likely regarded the recently leaked audio recording as a "smoking gun with fingerprints," regardless of Trump's new claim that no classified document was involved.
Dershowitz pondered how Trump's lawyers could mount "any possible defense" against the evidence, saying that it was "likely" that the Department of Justice "will be able to prove at trial" that the former president was discussing "material that he believed was still classified."
"Mr. Trump has claimed in an interview that what he showed the writer and publisher were not classified documents but rather newspaper and magazine reports on the issue," wrote Dershowitz. "Listening to the recording, however, suggests that Mr. Trump showed them a document that he said was secret and that he could have declassified, but did not, while he was president."
Dershowitz also wondered who might have leaked the recording to CNN, which obtained and aired the clip on the same day. He said that a leak by prosecutors "would almost certainly constitute a crime or at the very least a violation of Justice Department rules," while a leak by Trump's defense team would "raise serious legal and ethical questions."
Update 06/28/2023, 10:06 p.m.: This article has been updated to reflect that Trump lawyer Todd Blanche declined comment.
