You don’t have to be a lawyer to understand the risks that a criminal defendant takes when sitting down for a television interview. And some of President Donald Trump’s critics, like ally-turned-opponent Chris Christie, claimed that Trump had incriminated himself in his interview with Fox News’ Bret Baier, or even committed obstruction of justice on the air.
But I see it differently: he “boxed in” the Department of Justice, pun intended.
The strongest part of Special Counsel Jack Smith’s indictment is the transcript of a recoded conversation with a journalist in which Trump appears to refer to a defense-related document that he says is secret, and that he had not declassified when he left the White House.
Trump told Bret Baier that there really was no such document. The question could be resolved by witnesses. But it might also force prosecutors to produce the document itself.
There might be no legal obstacle, in theory, to prosecutors convicting someone of a crime based on evidence the public is not allowed to see, in some circumstances. But if the evidence is so secret that it cannot be shared with defense attorneys and jurors, who typically lack security clearance, the trial may be open to various procedural challenges.
Most of all, it is going to be very difficult to convince the public that the trial is, in fact, a fair one.
This is the first prosecution of a former president, and a leading opposition candidate. The legal burden of proof is the same, but the prosecution faces an additional, political burden to show that the trial is not an abuse of the justice system for political ends.
If the mysterious document does, in fact, exist, Jack Smith is going to have to decide whether to show it to the public. If he cannot, or he does not, the prosecution will lack legitimacy.
In the Bret Baier interview, Trump managed to target the key piece of evidence against him in a way that forces the Department of Justice to decide if it really wants to pursue that episode as part of the case. And without that episode, much of the rest of the case is both uninteresting to the public and legally murky for a jury.
Trump may have hurt himself by talking about the case so freely on TV. But he also might have called Jack Smith’s bluff.
Joel B. Pollak is Senior Editor-at-Large at Breitbart News and the host of Breitbart News Sunday on Sirius XM Patriot on Sunday evenings from 7 p.m. to 10 p.m. ET (4 p.m. to 7 p.m. PT). He is the author of the new biography, Rhoda: ‘Comrade Kadalie, You Are Out of Order’. He is also the author of the recent e-book, Neither Free nor Fair: The 2020 U.S. Presidential Election. He is a winner of the 2018 Robert Novak Journalism Alumni Fellowship. Follow him on Twitter at @joelpollak.
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