There is one piece of essential advice that every competent criminal defense attorney will tell a client: do not discuss your case publicly.
In the United States, the 5th Amendment right against self-incrimination means criminal defendants are not required to testify. But prosecutors can use a defendant's prior statements to bolster their case or undermine the defense narrative. So the best option for defendants is not to speak publicly. This is especially important for defendants facing serious felony charges in federal court.
Donald Trump faces 37 felony counts related to the mishandling of classified documents and obstruction of justice. And he will not stop talking.
Much of Trump's post-indictment commentary concerns a recording obtained by federal prosecutors in which Trump, at his golf course in Bedminster, New Jersey, apparently shows classified documents to two of his staffers — Margo Martin and Liz Harrington — and two people working on a biography about former Trump Chief of Staff Mark Meadows.
The week before the recorded meeting, the New Yorker reported that former Chairman of the Joint Chiefs of Staff, General Mark Milley, was worried that Trump would launch a military attack on Iran. According to the indictment, the recorded conversation involves Trump showing the small group, none of whom had the appropriate security clearance, a "plan of attack" produced by Milley.
TRUMP: Well, with [the Senior Military Official]—uh, let me see that, I’ll show you an example. He said that I wanted to attack [Country A]. Isn’t it amazing? I have a big pile of papers, this thing just came up. Look. This was him. They presented me this—this is off the record, but—they presented me this. This was him. This was the Defense Department and him.
TRUMP: I just found, isn’t that amazing? This totally wins my case, you know.
TRUMP: Except it is like, highly confidential.
STAFFER: Yeah. [Laughter]
TRUMP: Secret. This is secret information. Look, look at this. You attack, and—
TRUMP: This was done by the military and given to me. I think we can probably, right? Uh,
STAFFER: I don’t know, we’ll, we’ll have to see. Yeah, we’ll have to try to—
TRUMP: Declassify it.
STAFFER: —figure out a—yeah.
TRUMP: See as president I could have declassified it.
STAFFER: Yeah. [Laughter]
TRUMP: Now I can’t, you know, but this is still a secret.
STAFFER: Yeah. [Laughter] Now we have a problem.
TRUMP: Isn’t that interesting?
This is a critical piece of evidence in the case against Trump. The Espionage Act, which is the basis for most of the charges against Trump, requires the mishandling of national defense information to be "willful." The recording is evidence that Trump knew that the documents in his possession were classified, and he no longer had the ability to declassify them.
To prevail at trial, Trump's lawyers will have to convince a jury that this recording does not show Trump willfully violating the law. But Trump is not waiting for his lawyers to develop a strategy. He is offering a variety of explanations for the recording in national television interviews.
In an interview with Fox News' Bret Baier last Monday, Trump claimed he was not showing the group war plans for Iran but "newspaper stories, magazine stories and articles" about Iran. Trump attempted to muddy the waters further by claiming he "didn’t have a document per se" — implying that he may have referenced a classified document but didn't show it to anyone. This is not a particularly credible explanation for a conversation in which he describes the documents as "highly confidential" and "still a secret." But for Trump, things would quickly get worse.
I said it very clearly – I had a whole desk full of lots of papers, mostly newspaper articles, copies of magazines, copies of different plans, copies of stories, having to do with many, many subjects, and what was said was absolutely fine…[N]obody said that I did anything wrong other than the fake news, which is Fox, too
The use of the word "plans," which is consistent with Trump showing the group war plans, created an issue for Trump. In an interview on his plane with Semafor and ABC News, reporters asked Trump what "plans" he was referring to in the Fox News interview. Trump claimed he was referring to plans of "buildings" and "a golf course." Trump claimed that his characterization of these golf course blueprints as "highly classified" was "bravado."
This new explanation is not particularly coherent and even less credible. It's impossible to read the transcript of the conversation and conclude that Trump was talking about his next real estate development or golf course. Meadows' biography includes a description of war plans to attack Iran written by Milley, not golf course designs:
The president recalls a four-page report typed up by Mark Milley himself. It contained the general’s own plan to attack Iran, deploying massive numbers of troops, something he urged President Trump to do more than once during his presidency. President Trump denied those requests every time.
Even if Trump's lawyers can identify an exculpatory explanation for the recording, it will not erase the fact that, in June 2023, Trump publicly claimed he was referring to documents about golf courses. Prosecutors can introduce other evidence, including testimony from others in the room, that could further undermine the claims Trump is now making on national television. All of this could be used to undermine the credibility of any other explanation offered by the defense in court, even if Trump does not testify.