In what seems like an explosive confession in a recent TV interview, Donald Trump said: “Whoever heard you get indicted for interfering with a presidential election where you have every right to do it? You get indicted and your poll numbers go up. When people get indicted, your poll numbers go down.”
That’s what Donald Trump just said in a public interview. So, the question on most people’s mind now is, what is Jack Smith’s response going to be hearing Donald Trump confess out loud that he did indeed interfere in the election?
Glenn Kirschner, a retired federal prosecutor, said in an interview with Brian Taylor Cohen, “From a prosecutor’s perspective, Donald Trump’s mouth is the gift that keeps on giving. Everything that tumbles out of his mouth is what’s called a statement of a party opponent.”
What does that mean? It means it can all be introduced as evidence against him at trial. When he says, “I interfered in the election, and I got indicted and my poll numbers went up,” that is an admission that he interfered in an election.
Trump’s Self-Incrimination: How the Rules of Evidence Leave Him Exposed
The Rules of Evidence: When Jack Smith goes to trial against Donald Trump, he is going to be able to choose from everything Donald Trump has ever said that he did, and he’s going to be able to introduce statements of a party opponent—Donald Trump for instance, on camera saying he interfered in an election.
Another interesting fact about the Rules of Evidence is that Donald Trump’s lawyers can’t put witnesses on the stand to explain away his comments by saying, “Wait a minute, what Donald Trump meant by that was…” That would be hearsay.
The only person who will have a right to take the stand and explain what he meant when he told an interviewer he interfered in an election is Donald Trump himself. If he does that, he will be cross-examined thoroughly by Jack Smith’s prosecutors.
We all know Donald Trump cannot take the stand in his own defense because he is his own worst enemy on the stand. This gives Jack Smith a buffet of incriminating statements that Donald Trump has been saying for years to present to a jury and convict him.
Trump’s Legal Checkmate: Damned if He Talks, Damned if He Doesn’t
Kirschner also said, “The only impediment to getting Donald Trump convicted for his felony crimes of trying to overturn the results of a presidential election is getting the damn case into trial. The proof, the evidence, is going to be overwhelming.” Kirschner, is referring here to Trump’s so far mainly successful tactic of getting his trials postponed by making many, often frivolous, appeals to State and Federal appeals courts.
To answer the question, has Trump screwed himself? The answer is the only way he would be able to defend his comments is if he himself took the stand. If he does that, he opens himself up to a bloodbath at the hands of prosecutors who would finally be able to question him in a venue where he wouldn’t be allowed to lie as he freely does in the public arena, such as at his rallies and in interviews. So, in short, yes, he has put himself in legal jeopardy. He is damned if he takes the stand and lies and damned if he doesn’t.
Trump’s Greatest Enemy in Court? His Own Statements
That’s what the Rules of Evidence provide, and that’s what Donald Trump never considers. He is forever trying his case in the court of public opinion, where there are no rules of evidence, no rules of law, and the Constitution doesn’t control what people say. But once the case moves into court, Jack Smith can call a witness or just press play on a videotape where Donald Trump says, “Yeah, I interfered in an election, and my poll numbers went up.” At its core, that is an incriminating statement because he admitted he interfered in an election.
Donald Trump’s defense attorneys might argue that on another occasion, Trump gave an interview where he said he didn’t interfere in an election and request to play that tape for the jury. However, the judge would deny that request because a defendant can’t play his own out-of-court statements for the jury—only the prosecution can do that since it’s a statement of a party opponent.
This forces Trump to take the stand if he wants to try to explain it away.
Packing Up Trouble: Trump’s Document Confession Becomes Key Evidence
Kirschner highlighted another circumstance where Donald Trump is the best witness for the prosecution.
Trump took a whole bunch of documents when he left the White House. We don’t know who packed those boxes, but it is unlikely Trump did and carried them himself. So, Jack Smith would have had a massive task to prove Trump knew or authorized each document to be taken. That would have been a challenging proposition for Smith to prove. But once Trump started publicly admitting it, with words to the effect “You’re darn right I took those documents, I had every right to do that,” he removed the need to call numerous witnesses. Trump admitted it, making him his own worst enemy and the most compelling incriminating witness against himself at trial.
Jack Smith has been active in the grand jury recently, returning new indictments against Trump, including superseding or subsequent indictments. Kirschner suggested that prosecutors often continue to present evidence of a defendant’s admissions of guilt, leading to further indictments as additional crimes and codefendants emerge.
Trump’s High-Stakes Strategy: Admitting Crimes to Win Votes, Lose in Court
Donald Trump’s strategy appears to be admitting crimes publicly to make them seem less criminal. He hopes that if he admits things in broad daylight, it will seem less serious because it’s hard to believe someone would openly admit to a crime. He plays to the court of public opinion, hoping to sway enough people to vote for him, possibly allowing him to avoid legal consequences if re-elected. However, this strategy doesn’t account for how these statements will play in a court of law, which is ultimately the arena that matters.