“He has the right to remain silent”: Legal experts say Trump’s Truth Social post may be “evidence”

“I love when a (future) defendant unequivocally admits to the crime,” wrote former prosecutor Glenn Kirschner

By Igor Derysh

Managing Editor

Published November 29, 2022 9:18AM (EST)

Former U.S. President Donald Trump speaks at the Conservative Political Action Conference CPAC held at the Hilton Anatole on August 06, 2022 in Dallas, Texas.  (Brandon Bell/Getty Images)
Former U.S. President Donald Trump speaks at the Conservative Political Action Conference CPAC held at the Hilton Anatole on August 06, 2022 in Dallas, Texas. (Brandon Bell/Getty Images)

Former President Donald Trump appeared to admit to taking secret national security documents home to Mar-a-Lago in a lengthy Truth Social rant on Monday.

Trump spent much of the day lashing out at new special counsel Jack Smith, who was tapped by Attorney General Merrick Garland to oversee the Justice Department's investigations into classified documents seized from Mar-a-Lago and Trump's role in the Jan. 6 Capitol riot. Trump repeatedly falsely equated bringing the documents to his residence to the standard process the National Archives and Records Administration used to preserve presidential documents for past officeholders' presidential libraries.

While attempting to discredit Smith as a "hit man for Obama" and a "fully weaponized monster," Trump falsely insisted that he is innocent "unless the six previous Presidents did something wrong also."

"When will you invade the other Presidents' homes in search of documents, which are voluminous, which they took with them, but not nearly so openly and transparently as I did?" Trump wrote in another post, seemingly admitting to taking documents home, unlike past presidents whose documents were overseen by the National Archives.

Trump has repeatedly falsely claimed that former Presidents Barack Obama, Bill Clinton and George H.W. Bush took "millions" of documents from the White House. "All of these Trump claims are false," a CNN fact-check noted last month. The National Archives issued a rare statement rejecting Trump's attacks, stating that claims that "indicate or imply that those Presidential records were in the possession of the former Presidents or their representatives, after they left office, or that the records were housed in substandard conditions, are false and misleading."

Legal observers cited the false claim as potential evidence in a possible prosecution.

"Imagine Trump's lawyers may not love the final line of his latest Truth Social post," tweeted Washington Post reporter Josh Dawsey.

National security attorney Brad Moss said the post could be entered as an "exhibit" into evidence at a potential trial.

"He has the right to remain silent," Moss wrote.

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"I love when a (future) defendant unequivocally admits to the crime," wrote former federal prosecutor Glenn Kirschner, adding that a potential jury should return the "ONLY verdict consistent [with] the evidence."

Trump's defense has repeatedly shifted since the FBI search of Mar-a-Lago in August, baselessly claiming that the FBI may have "planted evidence" and oscillating between claims that the documents were his personal property, that the documents are privileged and that he declassified the documents before leaving office. Trump's attorneys have provided no evidence that any documents were declassified or planted in court and the FBI had already filtered out potentially privileged documents before Trump asked for a special master review — which was ordered by Trump-appointed Judge Aileen Cannon but appears to be doomed on appeal.

Mary McCord, a former acting assistant Attorney General for National Security, explained on MSNBC that Trump had undercut his defense.

"Even if there was a Pollyannaish defense, he has destroyed it with his own changing stories," she said. "I think he is going to say his defense to what he said today in that Truth Social post is 'Oh, no — again I do everything transparently and openly, of course, it wouldn't be anything I had any knowledge of what was unlawful. Otherwise, why would you not be trusted?' But at some point, that just doesn't hold up anymore."

Former federal prosecutor Andrew Weissmann, who drew Trump's ire as well on Monday for having served on former special counsel Bob Mueller's team, predicted that Trump's lawyers were "having palpitations" because his statement "completely belies the defense of the documents were planted."

"He seems to be saying, 'Oh, I, openly and notoriously took these documents, but I believed they were my personal documents,'" Weissmann told MSNBC. "That the mere act of taking them from the White House sort of magically transmogrified them to be my personal documents. That is belied by the fact that, of course, he didn't have the power and he has said inconsistent things with that latest defense as has his lawyer, where they agreed that these were documents that belonged to the Archives."

By Igor Derysh

Igor Derysh is Salon's managing editor. His work has also appeared in the Los Angeles Times, Chicago Tribune, Boston Herald and Baltimore Sun.

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