“Not admissible in court”: Ex-US Attorney says Trump’s defense won’t work unless he risks testifying

“It would subject him to cross-examination about all of his prior admissions,” warns ex-U.S. Attorney Barb McQuade

By Areeba Shah

Staff Writer

Published August 1, 2023 2:54PM (EDT)

Republican presidential candidate former President Donald Trump greets guests at the Republican Party of Iowa 2023 Lincoln Dinner on July 28, 2023 in Des Moines, Iowa. (Scott Olson/Getty Images)
Republican presidential candidate former President Donald Trump greets guests at the Republican Party of Iowa 2023 Lincoln Dinner on July 28, 2023 in Des Moines, Iowa. (Scott Olson/Getty Images)

Former President Donald Trump denied that he had Mar-a-Lago surveillance footage deleted after he was charged last week with ordering aides to delete security footage when he was hit with a subpoena. 

In a heated Truth Social post, Trump claimed that the Mar-a-Lago tapes were "voluntarily" handed over to the Justice Department "thugs," and that he didn't even attempt to go to court to stop the Department of Justice from getting the tapes. 


But the new charges filed against the ex-president and two of his aides tell a different story. They include obstruction charges based on allegations that the Mar-a-Lago employees pressed the IT director at Trump's Florida club to delete surveillance video footage to prevent a federal grand jury from accessing them. 

"Trump's self–serving claims in the media are not admissible in court," former U.S. Attorney Barb McQuade, a University of Michigan law professor, told Salon. "The only way he can deny it in court is by testifying under oath, which would be very risky for him because it would subject him to cross-examination about all of his prior admissions."

Trump, who pleaded not guilty last month to 37 criminal counts related to his handling of classified materials, has denied any wrongdoing in the ongoing investigation. His campaign has dismissed the new charges as "nothing more than a continued desperate and flailing attempt" by the Biden administration to "harass" Trump and those around him.

Legal experts aren't surprised by the former president's claims on social media, declaring his innocence and demanding that the DOJ be prosecuted for misconduct.

"Trump's litigation playbook consists of merely a few pages," James Sample, a professor at Hofstra University's School of Law, told Salon. "He makes sweeping boasts in the court of public opinion. His filings whisper narrowly when he is governed by the rules of evidence. This scenario was best illustrated by his election challenges. Court after court found that his public boasts were the evidentiary equivalent of bounced checks."

Former federal prosecutor Kevin O'Brien added that Trump's denial that he ever told anybody to delete footage is "predictable" and "a sound strategy" since the conversation in question hasn't been recorded or memorialized, leaving Trump free to deny it happened.

"These claims may not be very persuasive given the circumstantial evidence laid out in the indictment, but all Trump needs to do at trial is create reasonable doubt," O'Brien said. "One other fact that may be useful to Trump: the server, in fact, was not deleted, so at worst, he could say, the conversation was idle chatter."

On the other hand, if the government can "flip" Carlos De Oliveira, the employee who allegedly asked the IT director how to delete surveillance video, then their "case on deletion is all but airtight," O'Brien pointed out. 

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Former federal prosecutor Neama Rahmani agreed that the Justice Department would try to flip De Oliveira and Walt Nauta, Trump's longtime valet who is also facing charges in the classified documents case.

"Trump has a First Amendment right to talk about the case, but he shouldn't be attacking the lawyers or the judge, or commenting on evidence that isn't admissible," Rahmani said. "The question is, will Judge Cannon actually hold him accountable and in contempt? No judge so far has held Trump accountable for the things he says outside of court. If Trump continues to be given free rein to disparage prosecutors and the evidence, potential jurors will see and hear his comments and it will color their view of the case. Trump would in effect be entering the trial at an advantage."

Rahmani added that Trump's lawyers have tried to get prosecutors on their cases disqualified, pointing to the examples of New York attorney general Letitia James and Fani Willis, the Fulton County district attorney investigating Donald Trump's attempts to overturn the 2020 election in Georgia.

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"I expect to see the same with Jack Smith," Rahmani said. "That's the tactic his attorneys will take, which works in tandem with the bombastic statements Trump makes outside of court attacking the prosecutors who are coming after him." 

However, no judge is likely to remove the prosecutors on any of Trump's cases or dismiss any charges against the former president, he added. 

"From a legal perspective, the strategy won't work and is nothing more than a delay tactic, which benefits the defense," Rahmani said. "On the campaign trail, it's a different story. Trump is using the prosecutors as a foil to create an image of himself as a martyr for the MAGA base."

By Areeba Shah

Areeba Shah is a staff writer at Salon covering news and politics. Previously, she was a research associate at Citizens for Responsibility and Ethics in Washington and a reporting fellow for the Pulitzer Center, where she covered how COVID-19 impacted migrant farmworkers in the Midwest.

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