ALAN DERSHOWITZ’s verdict on Donald Trump’s indictment and the ‘worst sentence he’s ever uttered’

Alan Dershowitz is a lawyer, Harvard Law School Professor 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 evaluate the strength of the federal indictment of Donald Trump?

Dershowitz: This indictment is stronger than I anticipated in one respect and in one respect only.

It has the text of a conversation between former President Trump and a writer in which Trump says: Look, I know these documents that I have in my hand are secret. I could have declassified them. I didn’t. Here, I’m going to show them to you to prove my point.

That does seem to be evidence that at least there were some documents that President Trump knew were not unclassified. He had them in his possession.

Whether the documents were actually given to an unauthorized person to read or just flashed before his eyes, as part of typical Trump bravado, the government is going to have to prove.

DailyMail.com: Do you think that Donald Trump is going to prison?

Dershowitz: I would think he probably would not be going to prison, but I would be cautioning him to make sure he doesn’t say anything more. That increases those chances.

Somebody I know once gave him a gift of a fish that had been caught and stuffed and put on a plaque. And the plaque said, ‘If I had only kept my mouth shut, I’d still be swimming.’

President Trump is going to have to look in the mirror and say, ‘Why did I allow myself to be taped in a conversation with a writer when I knew I was being taped?’

Trump has obviously a history and a reputation of speaking too much and getting himself into trouble. This may be the worst sentence he ever uttered in terms of his own protection from criminal prosecution.

It’s the only page in the indictment which I think stands up to scrutiny.

DailyMail.com: Do you dismiss the obstruction of justice charges?

Dershowitz: The obstruction allegations are extremely weak – moving boxes and suggesting to somebody certain things. Those are cases that would never have been brought if it weren’t for President Trump running as the leading candidate against the incumbent president.

But what’s so strong about that one recorded phone call is that it doesn’t rely on the credibility of witnesses. It stands for itself.

And so, if I were Donald Trump, I would be losing a little bit of sleep over that one page and the absurdity of why he had to say things like that when he knew they were being recorded.

DailyMail.com: There is a co-conspirator named in this case, Donald Trump’s White House valet and personal assistant, Waltine Nauta. Analysts say the indictment is designed to convince him to flip on Trump and testify against him. How does that impact Trump’s case?

Dershowitz: Flipped witnesses don’t make the best witnesses because good lawyers can cross-examine them and expose to the jury their motivation to save themselves.

We know that prosecutors can put pressure on flipped witnesses not only to sing, but sometimes to compose lyrics and music that the witness believes the prosecutor wants to hear.

Dershowitz: Trump has obviously a history and a reputation of speaking too much and getting himself into trouble. This may be the worst sentence he ever uttered in terms of his own protection from criminal prosecution.

Dershowitz: Flipped witnesses don’t make the best witnesses because good lawyers can cross-examine them and expose to the jury their motivation to save themselves. (Above) Donald Trump’s White House valet and personal assistant, Waltine Nauta

So that’s why the tape is so important. You don’t need a flipped witness to testify as to the conversation that occurred with the writer.

DailyMail.com: The indictment lays out an alleged conspiracy to hide classified documents from the federal government. Does that make the obstruction charges more serious?

Dershowitz: If it can be proved that there was an intent to hide classified documents to make sure that the federal government never got them, it might be serious. But the fact that Trump didn’t destroy them, however, would undercut that.

It may have been a scheme to avoid the documents from being subject to a search warrant. And that would raise an interesting question.

Let’s assume that a lawyer says: look, you’re going to be subject to a search warrant and they’re only going to be searching your private offices. Could the lawyer recommend that the boxes be moved to a different area, preserved, but moved to a different area, so the search warrant wouldn’t cover it? Would that be an obstruction of justice?

Maybe. But it’s not as clear.

The easy cases for obstruction of justice are when evidence is destroyed. And there have been many cases like that – Richard Nixon, obviously. He also bribed witnesses.

The Nixon case is the standard for former presidents, current presidents, presidential aspirants. And I don’t think that standard has been met by this indictment.

DailyMail.com: How much stock do you put in Trump’s defense that he had the capability to declassify information?

Dershowitz: His claim of declassification is a strong one because the burden of proof is probably on the government. They have to prove that he didn’t declassify. He doesn’t have to prove that he did declassify.

That will still come up because there are materials that are subject to the defense that they were declassified.

I do think that the prosecution made a tactical blunder by over indicting, by including too many questionable things.

If I were a prosecutor, I would have had a much shorter indictment focusing on that one conversation, maybe some conversations with the lawyers.

Dershowitz: The obstruction allegations are extremely weak – moving boxes and suggesting to somebody certain things. Those are cases that would never have been brought if it weren’t for President Trump running as the leading candidate against the incumbent president. 

Dershowitz: I do think that the prosecution made a tactical blunder by over indicting, by including too many questionable things. (Above) Special Counsel Jack Smith 

But I would not have included 32 counts under the Espionage Act. I think that tends to divert the attention of jurors away from the central point.

I’ve seen many cases lost by prosecutors because they have over indicted and overly introduced evidence that didn’t persuade the jury.

And the jury say to themselves: oh, my God, if they are planning to go after him on these weak charges, how can we trust them on the strong charges?

Now, what Justice Department Special Counsel Jack Smith did that was very clever, in order to try to distinguish this case from the cases involving Hillary Clinton, President Biden and Vice President Pence, is he indicted Trump, not under the statutes that people are usually indicted, namely negligence or gross negligence in the handling of classified material.

Smith indicted Trump under a much higher-level statute, one that requires willfulness. It will be harder to prove.

But it will distinguish Trump’s case from the Biden case and from the Hillary Clinton case, at least on the allegations.

Now, the facts may not be so different between Hillary Clinton and President Trump, but the allegations are different. And that’s clearly an attempt to try to say, look, this isn’t the same as what happened to Clinton.

FBI Director James Comey said that never in history has anybody been prosecuted for negligent handling of materials. People have been prosecuted, obviously, for willfully transmitting classified material.