Just days after special counsel Jack Smith obtained a superseding indictment against former President Donald Trump for attempting to overturn the 2020 election, the former president claimed in a Fox News interview that he had “every right” to do so. The question now is: can that public statement be used against him at trial? The answer is yes.
In the interview, which aired Sunday, Trump complained yet again about the Justice Department’s criminal charges against him. “Whoever heard you get indicted for interfering with a presidential election where you have every right to do it, you get indicted, and your poll numbers go up?” he said. “When people get indicted, your poll numbers go down. But it was such, such nonsense.”
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Trump 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. The rules provide that prosecutors can introduce any statement a defendant makes against that defendant at trial. Such a “statement of a party opponent” is not subject to the hearsay rule, which limits out-of-court statements from being admitted at trial. For example, Trump said during a CNN town hall last year that he took classified documents to his Mar-a-Lago residence when he left the White House. Should Smith’s case concerning those documents finally go to trial, prosecutors can introduce that statement to the jury to prove that Trump in fact knowingly took those documents.
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However, the defense team does not have the same latitude to use Trump’s words at trial. In that same CNN town hall, Trump claimed that he had the “absolute right” to take those documents under the Presidential Records Act. Trump’s lawyers are prohibited from introducing those out-of-court statements to prove that Trump had that right (which, of course, is a lie, as the Presidential Records Act gives him no such right).
In some ways, the rules governing the admissibility of statements of a party opponent feel a bit lopsided in favor of the prosecution. But if prosecutors made public statements about evidence in a case, then presented proof at trial that was contradicted by those earlier statements, the defense team could seek to introduce the prosecution’s earlier words as a statement of a party opponent. What’s good for the evidentiary goose is good for the evidentiary gander.
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The upshot is that Trump’s attorneys could not introduce into evidence at trial video or audio of Trump saying anything that might help his case. Nor could they call witnesses to testify that Trump said X, Y or Z, because that kind of testimony is prohibited under the rules of hearsay.
The only way for Trump to rebut statements he had made out of court that prosecutors introduced as evidence would be for Trump himself to take the witness stand. In other recent cases, including his Manhattan criminal trial, he has often (though not always) decided not to testify — likely because he and his lawyers know he would be destroyed on cross examination.
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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. 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.
