Below is my column in the Messenger on former President Donald Trump revealing his defense to the damaging audiotape cited in the federal indictment. The defense could come at a cost at trial, but it is a calculated risk for the court of public opinion.
Here is the column:
Since the arraignment, much of the talk about the federal indictment of Donald Trump has focused on the audiotape on which the former president refers to what he said were classified plans to attack Iran. When it was first reported, I noted that the only cognizable defense would be “bravado,” an admission that Trump was exaggerating but that the document was not what he claimed.
Trump has now adopted that defense in an interview with Semafor and with ABC News. The problem is that bravado can come at a cost.
On the audiotape, Trump is apparently motioning to material on his desk and tells two interviewers: “I’ll show you an example. He said that I wanted to attack Iran. 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. We looked at some. This wasn’t done by me. All sorts of stuff, pages long, look. Let’s see here. It’s that amazing. This totally wins my case, you know. Except it is, like, highly confidential, secret. This is secret information. But look, look at this. You attack.”
When asked about the audiotape by Fox News’ Bret Baier, Trump insisted that “there was no document. That was a massive amount of papers and everything else, talking about Iran and other things.”
He has now admitted that he was engaging in “bravado,” declaring: “I would say it was bravado, if you want to know the truth, it was bravado. I was talking and just holding up papers and talking about them, but I had no documents. I didn’t have any documents.”
The admission was notable, given what Trump once wrote about in his book The Art of the Deal: “The final key to the way I promote is bravado. I play to people’s fantasies. People may not always think big themselves. but they can get very excited by those who do. That is why a little hyperbole never hurts. People want to believe that something is the biggest, the greatest and the most spectacular.”
Trump’s past embrace of bravado as a signature style will help him in arguing that, while he may have been braggadocious, he was not careless with a document that did not exist.
Notably, Merriam-Webster defines “bravado” as both “blustering, swaggering conduct” (as Trump described in his book) but also “the quality or state of being foolhardy.”
The Justice Department, in its case against the former president, is likely to focus on the second meaning. Even if the Justice Department cannot establish that the Iran attack plans were actually on Trump’s desk, it can use the audiotape against him.
The most immediate impact is that any possibility that Trump might take the stand likely just vanished. In a case about the mishandling of classified material, “bravado” is hardly a positive defense. It is perfectly believable that there was no classified document being waived around — but it also shows a “foolhardy” attitude that could further taint the defense over the pictures of boxes stored in a bathroom and ballroom. Waiving around documents while bragging that you kept classified material undermines claims that you took such documents seriously.
The greatest impact, however, is that it demolishes Trump’s defense that he declassified all of the documents. At the end of the audiotape, Trump states: “When I was president, I could have declassified it, now I can’t.”
That also could be bravado — but it is clearly baffling for a president who insisted that he could declassify material with a thought.
It effectively means that Trump is left with threshold challenges against the use of the Espionage Act, arguing that fights over presidential papers are supposed to be addressed under the civil provisions of the Presidential Records Act. Trump repeated that defense this week.
The odds are against Trump on ultimately prevailing with that argument in the courts. However, even if he did, it still could leave false-statement and obstruction charges on the table. And, at age 77, Trump cannot leave one count remaining if he wants to avoid the threat of a potentially terminal prison sentence.
Trump, however, is not without a strategy, albeit a high-risk one. The bravado defense is likely to play better with the public than a court. According to one recent poll, a majority of the public views the indictment as politically motivated or even as election interference. Some Republican presidential candidates have stated already that they will (or would consider) pardons for Trump if they are elected in 2024. As I have previously argued, Trump could give himself a self-pardon, too — including a prospective pardon before any conviction. Thus, if Trump can delay the trial until after the election, Justice Department special counsel Jack Smith may never see a jury in the case.
Trump also knows that while he cannot afford to lose one felony count, Smith cannot afford to lose one juror. With the trial’s transfer to Fort Pierce, Fla., Trump will have a far better jury pool than he would face in New York or, potentially, Atlanta. If the jury hangs, Smith would have to retry the case — a very uncertain prospect with a public losing its patience for the prosecution.
So, “a little hyperbole,” to quote The Art of the Deal, could go a long way where bravado works the best: in the court of public opinion.
Jonathan Turley, an attorney, constitutional law scholar and legal analyst, is the Shapiro Chair for Public Interest Law at The George Washington University Law School.
Just subpoena the people he was talking to and ask them what he was showing them.
The Audio Tape is going no where and may not be admissable.
It has come out that none of the charges Trump Faces have anything to do with the Audio Tape.
That means it can not be admitted as evidence of conduct – because that conduct is not charged.
Nor can it be admitted as a “confession” or sttement against interests – again because there are no charges related to the events on the tape.
It might be admissible to demonstrate state of mind. That is the best that can be done.
Nor can witnesses to the event be used to admit “evidence” – again there is no charge for those events so there is no admissible evidence.
While we do not know Why Smith did not charge for that event.
What is likely is that he can not prove anything. It is near certain that Smith interviewed witnesses, and it is likely that none were able to confirm that there were classified documents present. If Trump waived around a bunch of documents that he claimed were classified – that is NOT sufficient.
Those present had to either see the distinctive classified binders or see documents with classified marks on them.
That is the minimum needed to CHARGE. And that might not get a conviction.
I would further note – If Smith had the evidence – he would have impaneled a grand jury in NJ where this occurred.
He would have a far greater chance of getting a more favorable judge and Jury than in Florida.
I was gonna say this exactly. But since you did, I don’t have to :-))
They should throw teh case out with Predjice because it was the DOJ leaking the doc to poisin teh jury pool, hurt the election, and cover over the coverage of Biden& Family things. This nonsense political leaking seems to be the way the DOJ works. It’s not going to stop until there’s a penalty for doing it.
President Trump accomplished much during his presidency. In particular, his moving the embassy to Jerusalem, and the economic prosperity, were notable. He doesn’t get enough credit for his accomplishments. However, it’s Trump’s penchant for bragging and not editing his thoughts before they leave his mouth that routinely get him in trouble. He makes it easier for his opponents.
Yes. But isn’t true of all of us? This is July 1st and President Trump has gone up in the polls. WeThePeople need to help him save what is left of America. I am calling every Senator demamding they stop fundimg Ukraines crazy war, impeach biden, and defund the fbi, doj, and cdc,the irs. That is such a small thing but even pennies add up to a dollar!
Defending your country against an aggressor who commits multiple war crimes is crazy???
Turley is a Garland fanboy so…
Is he really?
It is getting easier and easier to dismiss Garland as a hack that will do anything the political winds demand.
Although I don’t like how it was done, we all dodged a bullet when he was not confirmed as a SCOTUS just us.
Jack Smith versus David Weiss
Smith: Go after a political opponent — Appoint a *special counsel* with a documented history of weaponizing the law against political opponents.
Weiss: Investigate a political ally — No special counsel appointment. Then stall, erect roadblocks, threaten investigators, tip off the target, handcuff the prosecutor.
That is *not* “two tier.” That is the demolition of justice and a mockery of the law.
Yesterday, the Supreme Court found—under the Equal Protection Clause of the 14th Amendment—that a college may not have differing standards for admission based on the race of its applicants. Likewise, when considering the non-stop criminal prosecution of Trump and his supporters, I hope the Court finds that a government may not have differing standards of justice based on the political views of its citizens.
If it is “espionage” for Trump to discuss with a couple of American writers a secret plan to invade Iran, why is it not even more “espionage” for CNN to reveal that plan to the entire world?
For the umpteenth time: Trump was NOT charged for that document. Read the indictment. Understand which documents he was and was not charged for.
Anon – my remark was not directed toward the prosecution, but to the MSM’s
reaction to Trump’s recorded conversation. There is no need to count up to umpteen, whatever number that is.
I dare you to link to even a single MSM article that claimed Trump’s statements in that recording constitute “espionage.”
Because CNN didn’t reveal it, the indictment did which was not sealed.
The media was not charged to safeguard the documents or the information; the President was. If a military member or a civil servant, who has a security clearance, turns over information and/or documents to the media, they can be disciplined and/or prosecuted. Again, they had the clearance and the duty to safeguard the information, the media has no such contract with the government.
If Trump told some aquaintances that he routinely drove 50 mph on a certain road with a speed limit of 40 mph, would that mean he exceeded the speed limit? What if could be shown, independent of Trump’s statement, that the speed limit was 50 MPH?
If Trump told some aquaintances that certain federal documents in his possession were classified, would that mean they were classified? What if could be shown, independent of Trump’s statement, that the documents were not classified?
Were there “Treason, Bribery, or other high Crimes and Misdemeanors???”
Was there espionage?
Was there a counterparty.
Does the Constitution state, “The executive Power shall be vested in a President of the United States of America (i.e. The President alone shall classify, declassify, handle, mishandle, archive and establish archive modality in perpetuity)” and was Real President Donald J. Trump the President?
Yes.
Was there “levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.”
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Article III, Section 3, Clause 1: Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the testimony of two Witnesses to the same overt Act, or on Confession in open Court.
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Was there any of that?
No.
Trump hasn’t been President since Jan. 20, 2021.
The material he generated, classified, declassified, archived and set the archive modality for haven’t been such since Jan. 20, 2021 either.
That authority does not extend to S/FRD and S/RD (nuclear) documents, in which the declassification by the President, per the Atomic Energy Act, must be done with the consent and coordination with the issuing authority. On the indictment’s inventory list, item #19 was an S/FRD document, which, that alone, could get Trump 10 years in prison if convicted under the Espionage (793) act. But, all of this business about classification is really a moot issue given that the Espionage Act does not depend on any classification regime, it’s content (probably DNI damage assessments) that will carry the weight when it comes to sentencing.
And even more moot because he was stupid enough to BRAG about it while a reporter was recording an interview he agreed to. The Trump recording shows that (a) he knowingly possessed national security documents that (b) were obtained as part of his presidential duties and hence under the PRA belong in the custody of NARA meaning (c) he removed them improperly from the legal custodian which (d) constitutes a violation of 18 USC 793(f). He admits that he knew that they were (e) classified Top Secret and (f) he failed to declassify them when he had the authority and the recording demonstrates that (g) he is knowingly showing them to an individual not entitled to access the document, which exceeds the threshold for 18USC 793(f), which only requires negligence, a lower standard that willful, allowance of improper access to the information.
He basically proved the DoJ case with his own words.
You are irrefutably brilliant.
Please pay attention.
The legislative branch has no power to usurp the power of the executive branch.
The President, and only the President, exclusively, holds the executive power.
The legislative branch does not hold any facet, aspect, value, amount or degree of executive power.
The President, and only the President, has the power to classify, declassify, archive and set the archive modality, in perpetuity, of material generated by his administration.
Any and all legislation by the legislative branch that effects the usurpation of the power of the executive branch by the legislative branch is unconstitutional.
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Article 2, Section 1
The executive Power shall be vested in a President of the United States of America.
No law passed by Congress can supersede the authority and powers granted to the president by the US Const.
That includes the Atomic Energy Act.
He is no longer President, so impeachment criteria are no longer relevant, but rather the language of the law describing the crimes he is charged with. Under 18 USC 793, he is guilty if he negligently handled classified defense material or removed them from the proper custodial storage. Based on his recorded statement, the answer to both – in his own words – appears to be “yes.”
Trump is likely convicted on the testimony of his own worst enemy – himself. His lack of self-discipline, his arrogance and out of control ego, his craving for attention – all of these combined to produce him bragging about violating the law while he knew he was being recorded in an interview he agreed to. Those same flaws are exactly why he is unfit to be President. We have candidates who are stronger defenders of conservative values but have the self-discipline and judgment he lacks. His continued political viability is purely due to having created a cult of personality around himself.
I. and most sentient beings, take issue with the following: “It is perfectly believable that there was no classified document being waived [sic] around”. Uh, no. Nothing Trump says is believable, much less “perfectly believable” to most people who view him as a chronic, habitual liar. When he tries to claim he was engaging “bravado” by claiming to have top secret plans on how to invade Iraq, he is lying. Essentially, he’s lying about lying. And, it’s clear he was showing off to the female staffer he was trying to impress
Secondly, Turley has previously gone on record saying that a president cannot pardon himself–from ThoughtCo (8/15/2019):
“Most scholars argue, however, that presidents cannot pardon themselves. More to the point, even if they were, such a move would be incredibly risky and likely to ignite a constitutional crisis in the United States.
Jonathan Turley, a professor of public interest law at George Washington University, wrote in The Washington Post:
“Such an act would make the White House look like the Bada Bing Club. After a self-pardon, Trump could wipe out the Islamic State, trigger an economic golden age and solve global warming with a carbon-eating border wall — and no one would notice. He would simply go down in history as the man who not only pardoned his family members but himself.” “
NUTCHACHACHA must provide reparations and returns of benefits illicitly and unconstitutionally obtained through affirmative action laws and programs on every governmental level.
Oh, and public assistance, welfare, public housing, food stamps, utility subsidies, etc., all constitute affirmative action.
Affirmative action was adjudicated unconstitutional.
Pay it all back now, NUTCHACHACHA!
Pay it back!
Gigi – if Hunter Biden, while shaking down a Chinese businessman, says that his father is “sitting right next to me”, does that mean that Hunter is foreclosed from later denying that his father was actually sitting there next to him?
I can imagine how Trump feels, he knows he’s totally innocent, Jack Smith is known for being very corrupt as is Garland who may be impeached, it’s just endless, they are so lawless and vicious! They are clearly out to get Trump at all costs — by every measurement Trump was an infinitely better president than illegitimate president Biden. Like Trump said, “I’ve never been indicted. I went through my whole life, now I get indicted every two months.”
John Trainor: I remain stunned at people like you who could sympathize with a braggadocious thief like Trump who treats our national secrets like a party favor. Jack Smith is NOT “known for being very corrupt”–he is known for being an apolitical, straight-shooter and outstanding and highly-ethical professional prosecutor. The same is true of Merrick Garland. No one is “out to get Trump at all costs”–every prosecution was brought before a Grand Jury before charges were filed. We’ve all seen the crimes Trump committed–beginning with leveraging aid to Ukraine in exchange for ginning up lies about Biden, fomenting an insurrection via the Big Lie, trying to get the GA SOS to flip Georgia by falsifying the vote totals, submitting election forms containig payoffs to an adult actress claiming them as valid campaign expenses, and stealing, recklessly storing, and sharing classified documents with people who don’t have security clearances.
Trump is, by every measurement, one of the WORST presidents ever–he trashed our economy and public health, pushing us to the brink of an all-out depression. We suffered the worst recession since the Great Depression. He drove the national debt to record levels with his reckless tax breaks mostly benefitting the very-wealthy, lobbied for Putin, a known murderer, tried to get Russia back into the G-7, sided with Putin against US intelligence professionals, and praised Putin as a “geinus” and “savvy” for invading Ukraine. He started a trade war with China and imposed tariffs, apparently not understanding the basic premise of economics–the increased cost of goods is passed on to the consumer. He made a wreck of America, but still can’t stop lying, trying to hog the limelight, and now, trying to get people to feel sorry for him, as if he’s some kind of victim.
I’ve been stunned by the past 50 years of success achieved by parasites and dependents such as yourself, NUTCHACHACHA!
“…to each according to his needs…,” right?
Whatever will NUTCHACHACHA do now without the crutch of affirmative action?
You go, girl!
“Jack Smith is NOT ‘known for being very corrupt’”
The Left’s evasions know no bounds.
It was the *corrupt* Jack Smith who concocted the plan for the IRS to target conservatives.
Ok, so he is known for being somewhat corrupt.
That should be enough.
Innocent? The man BRAGGED to a reporter about violating the law!
Nope,
Smith has not charged Trump for anything that occurred at Bedminster.
If you are correct and Trump violated the law by providing actually classified documents to a reporter in Bedminster NJ,
Then Smith would have foregone indicting and prosecuting Trump in Fl were Smith will have an uphill battle trying to get a jury that does not – like 70% of the country beleive this is entirely a political prosecution.
I would also suggest that you consider the underlying FACTS of the case.
Gen. Miley sent a 4 page document outlining his plan to go to War with Iran after the 2020 Election. This was not the First Time Miley sought to start a war with Iran. Whether you like it or not Gen. Miley – as well as other Neo-Cons efforts to suck the US into wars we have no business in is not news.
Gen. Miley then Subsequently Toured the country LYING to anyone who would listen – Claiming Trump was pushing War with Iran.
This is of course entirely disproven by the FACT that earlier it was Trump that Decided NOT to attack Iran over the objections of Miley and the neo-con cabal.
As part of the massive political re-alignment this country is undergoing – neo-cons are returning to the Democratic party. Though why Democrats would want them is beyond comprehension.
Regardless, BEFORE Trump rustled papers at Bedminster Meadows had Publicly Refuted Miley’s claims.
Contra Left wing nuts the espionage act is NOT about peiced of paper with classified marks on them. Though that is often useful as evidence.
It is about giving information harmful to national security to those not entitled to have it.
Did Meadows Violate the Espionage Act when he publicly and truthfully asserted that Miley was Lying – that the plans to invade Iran came from Miley not Trump ?
If Meadows did not Violate the espionage act – then Trump could not. The espionage act is not about papers it is about information.
If THIS is your smoking gun – you are in Deep Trouble.
Lets take this to the extreme – Are you prepared to allow those in government to leak LIES or other false information, to use their government power and position to defame their enemies – but that those speaking the TRUTH about the sme conflicts are criminals – because the truth is classified ?
Do you expect ANY court – much less the Supreme court to conclude that providing the Truth about a past event is a crime, while Lying about it is fully allowed ?
Do you expect a Jury to buy that ?
Contra Smith and idiots on the left – the Bedminster events are the proof of WHY Presidents MUST have limitless declassification power, and Ex-PResidents must be able to take ownership of whatever documents they please – including classified ones.
Because as we see – whether it is Miley or Biden, their enemies will LIE about them unabashed.
Regardless, is that your position – that Lying about others is OK, But telling the Truth is not ?
Ok, here’s a few points.
Where are the classified documents detailing the Iran attack? Not written about in the indictment and or in the hands of the National Archives or DOJ.
Where is the leaked grand jury testimony of the other people in the room? If they actually saw the documents, I’m sure it would have been leaked in media. My guess is they didn’t see any classified docs.
The Atlantic article came out a few days before this was recorded. Replace classified documents with a copy of the Atlantic story, and Trumps statements seem to make sense.
It is far more likely that documents in question are not in the indictment or at the NA because Trump still has them.
Yup. And as we all know “the walls are closing in for Trump”.
How many times have we heard this? After the 12th time I think those walls have cave in on themselves.
By now, we have to admit he is probably the most law abiding person in the US.
I knew immediately, the first time I heard the two-minute audio that Trump was mocking the accusations that were already in the news. I could also tell that the others piling on and laughing on the sound clip were well aware of it too. THINK! At that point why the hell would Trump have classified documents there in Bedminster? If the audio is evidence of anything, it’s the current level of childishness that the GET-TRUMP camp are stooping to – though I’m sure they’ll stoop further still.
I’m loving all this.
The left has gone over the waterfall and *still* they yell “paddle harder!”
At this point EVERY SINGLE legal assault against Trump actually strengthens him. If they manage to put him on trial the Democrats will have simply added yet another 15 points to his favorability.
Democrats truly are Ahab stabbing at the white whale now. If Donald Trump had a choice between keeping all this legal persecution going or suddenly being invited to all the Washington shows insider cocktail parties, which would he choose? Haha, only a Democrat picks the wrong answer here.
Spoiler alert for you Gen-Z’s -the White Whale wins.