Former President Donald Trump just handed special counsel Jack Smith a potent new tool in the federal election interference case, former federal prosecutor Glenn Kirschner wrote in an article for MSNBC released on Wednesday.
Specifically, Trump proclaimed in an interview with right-wing talk radio host Mark Levin on Fox News that he had "every right" to interfere in the presidential election, which legal experts have noted is essentially a confession that he interfered and that he wasn't acting within the scope of official duties and, therefore, is not protected by the immunity rights the Supreme Court established for presidents earlier this year.
Trump, wrote Kirschner, "is forever trying his cases in the court of public opinion, where there are no rules of evidence, no rules of procedure and no rules of law. What he apparently doesn’t realize is that every word out of his mouth is admissible in a criminal trial. This is where the rules of evidence come into play — and where they will work to Trump’s extreme disadvantage at trial."
Those rules of evidence, wrote Kirschner, allow prosecutors to enter a “statement of a party opponent” into evidence — in other words, Trump's own words can be used against him. It's the reason why the Fifth Amendment exists, so that the government cannot compel defendants to incriminate themselves. But they can do so themselves if they so choose.
"On the other hand, Trump's statement that he has an "absolute right" to do something cannot be entered as evidence in his own defense, for the purpose of proving that right does in fact exist.
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Trump's only option to combat this is to take the witness stand himself and testify that his words didn't mean what the prosecutors claim they mean — and, Kirschner noted, while Trump has previously considered doing this in his various cases, his lawyers have always stopped him for fear he would just incriminate himself further.
"A defendant facing multiple criminal indictments would be well advised to keep his mouth shut. Once again, the former president has proven unable to do so," wrote Kirschner.
"This is why I have said all along that as each of Trump’s criminal cases move from the court of public opinion into courts of law, he will be convicted in a New York minute — just as he was in, well, New York."
