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Trump’s comments on classified docs case won’t help his defense

In the wake of his arrest, Donald Trump has the right to remain silent. He probably should've exercised that right before appearing on Fox News yesterday.


At some point last week, as Donald Trump was indicted on federal charges, he was likely told of his rights as a criminal defendant. The first one is something the former president has probably seen or heard on television: He has the right to remain silent and anything he says can be used against him in a court of law.

As a rule, defense attorneys want their clients to take these rights seriously — and shut up accordingly. The more defendants remain silent, the less likely they are to say things that prosecutors will (a) hear, and (b) use.

But to know anything about Trump is to know he’s never been a “remain silent” kind of guy.

Indeed, one of the many reasons the former president has struggled to hire defense attorneys is that Trump has long demonstrated a habit of incriminating himself while trying to explain away his many legal dilemmas. As The Atlantic’s Adam Serwer wrote in 2018, “Donald Trump can’t stop telling on himself.”

Five years later, the former president sat down with Fox News’ Bret Baier, for an interview that aired late yesterday afternoon, and the two talked in some detail about the classified documents scandal that led to the Republican’s federal indictment. I have a hunch Trump’s defense attorneys weren’t pleased.

The host noted, for example, that National Archives officials wanted Trump to return the documents he took, and when he refused, they went to the Justice Department to issue a subpoena.

The former president quickly interjected, “Which they’ve never done before.” That’s true, but it’s not an argument that helps him: Officials never had to subpoena a former president before because we've never before had a former president who took classified materials and refused to give them back.

When Baier followed up with the obvious question — why not just return the documents? — Trump initially answered:

“Because I had a boxes. I want to go through the boxes and get all my personal things out. I don’t want to hand that over to NARA yet, and I was very busy, as you’ve sort of seen. I’ve been very, very busy.”

The Fox anchor quickly reminded his guest that, according to prosecutors, he proceeded to have aides move boxes around as part of his cover-up attempt, and encouraged his lawyers to deceive federal law enforcement. Oddly enough, Trump didn’t exactly deny the allegations:

“Before I send boxes over, I have to take all of my things out. These boxes were interspersed with all sorts of things: Golf shirts, clothing, pants, shoes, there were many things.”

So, let’s take stock. Trump stands accused of taking classified documents, refusing to give them back, and obstructing the retrieval process. His latest defense, articulated to a national television audience yesterday, basically comes down to two points:

  1. He was busy.
  2. He was worried about losing some golf attire.

The first point is untrue. The former president had a year and a half to go through the boxes he took, which was more than enough time. The second point is hilarious, but not much of a legal defense: Trump could’ve complied with the law, but he apparently chose not to because he had clothing “interspersed” with the classified materials he allegedly stole.

A wealthy man such as Trump, eager to avoid a felony conviction, presumably could've bought new clothes if he’d accidentally given them to the Justice Department. But apparently the “golf shirts, clothing, pants, [and] shoes” that he kept with the classified documents were important to him.

Trump and his allies have come up with some foolish talking points in the wake of his indictment. Last night's arguments were even worse.

It was hard not to wonder whether the former president’s lawyers in this case — the ones who haven’t already quit — were smacking their foreheads with the palm of their hands during the interview.