Here’s How Trump Might Defend Himself In Court

Topline

Former President Donald Trump is expected to plead not guilty to the 37 federal counts against him in court on Tuesday, as the ex-president and his lawyers fight the Justice Department’s allegations that he unlawfully retained White House documents and obstructed the agency’s investigation—though experts suggest there could be issues with his legal arguments.

Former President Donald Trump speaks at the North Carolina Republican Party Convention in … [+] Greensboro, North Carolina, on June 10.

Key Facts

Trump has been indicted on federal charges stemming from White House documents he brought back to Mar-A-Lago, including willful retention of national security information—part of the Espionage Act—as well as obstruction and making false statements and representations, crimes that are punishable by prison sentences of between five and 20 years if he’s convicted.

Trump and his attorneys have alleged in public statements and previous court filings that he was entitled to retain White House documents under the Presidential Records Act.

However, legal experts, the National Archives and even Trump’s own former Attorney General William Barr have said this argument is false, as White House documents became the property of the Archives once Trump left office and the ex-president cannot go through them after leaving to determine which ones are personal.

Trump’s legal team is also expected to argue prosecutorial misconduct, his former attorney Tim Parlatore has suggested, including that prosecutors were unfairly biased against Trump, behaved improperly during the grand jury proceedings and improperly tried to pressure an attorney for his now-charged valet Walt Nauta.

Legal experts cited by the New York Times said those claims were unlikely to succeed, given that issues with grand jury proceedings would likely result in disciplining attorneys, rather than invalidating the indictment.

Lawyers may also try to exclude detailed notes that prosecutors obtained from Trump attorney Evan Corcoran, which many of the most damning claims in the indictment were based on, after a different district judge in Washington, D.C., ruled that the lawyer’s notes could be handed over to investigators despite attorney-client privilege.

New York University law professor Rachel Barkow told the Times that defense strategy may have a better chance of success, but it’s hard to say given that the decision allowing Corcoran’s evidence to be used—citing the “crime fraud” exception to attorney-client privilege—is under seal, and it would depend on how strong that decision is.

What We Don’t Know

Exactly what Trump’s attorneys will argue in court. Parlatore, who previously represented Trump in the documents investigation but left before his indictment, suggested in an interview with Politico that he would also recommend attacking the search warrant that prosecutors used to search Mar-A-Lago for documents last year, though it’s still unclear if Trump’s attorneys will do so. Reuters notes his lawyers could also try to challenge witness statements or allege Trump was acting under the advice of his attorneys and didn’t mean to break the law. In court proceedings over the White House documents prior to Trump’s indictment, the ex-president’s attorneys have not always been willing to make claims that Trump has said in public statements in an actual court of law, including that Trump declassified materials that he brought back to Mar-A-Lago and that the FBI “planted” evidence at his Florida estate. Ultimately, Trump’s legal team could simply try to drag out the trial until after the 2024 election—which, if Trump wins, would likely result in either his own DOJ dropping the charges against him or him trying to pardon himself.

What To Watch For

Trump will appear in federal court in Florida at 3 p.m. on Tuesday, where he’s expected to be formally arraigned and plead not guilty to the charges against him. The former president will be represented in court by his attorneys Todd Blanche and Christopher Kise, but is reportedly still seeking new legal representation after two of his lawyers abruptly quit following his indictment. Despite rushing to replace them ahead of his Tuesday court appearance, multiple outlets report Trump was unable to find a new lawyer to represent him in Florida ahead of his arraignment, with several lawyers reportedly turning down the offer to represent Trump given his reputation as a “difficult” client.

Surprising Fact

Trump has frequently claimed he had the right to hold onto classified White House documents after leaving office because he declassified them, an allegation undercut by leaked audio in which Trump admitted on tape that he had documents but didn’t declassify them. That line of defense is likely irrelevant to Trump’s case, however, as the charges against Trump retaining documents are under the Espionage Act, a law that prohibits the willful retention of national security information. The law, which dates back to World War I, only specifies that documents must be related to national defense, meaning it doesn’t matter whether the documents Trump kept were declassified or not when it comes to Trump violating the law.

Contra

Even if Trump’s defense has issues, the president could still be helped in court by U.S. District Judge Aileen Cannon, the judge overseeing the case—and a Trump appointee. Cannon is widely seen as being favorable to Trump, after she was criticized by legal experts for her decision appointing a third-party special master to review the White House documents federal agents seized at Mar-A-Lago. While the case will ultimately be decided by a jury, Cannon will have broad power over making decisions in the case as it moves toward a trial, including how long the proceedings will take, and appealing any decisions she makes could be tricky for prosecutors given they’ll further drag out the case.

Key Background

Trump is the first former president to be indicted on federal charges, which came out of a year-long investigation by the DOJ into Trump keeping White House documents at Mar-A-Lago, and whether he obstructed the investigation by not fully complying with a subpoena for remaining classified documents. The indictment against him, which was filed last week, alleges Trump kept documents that “could put at risk the national security of the United States,” detailing how the ex-president allegedly stored documents throughout Mar-A-Lago—including in his bathroom—showed them to others, and then allegedly tried to conceal the documents when the DOJ issued a subpoena for them. More than 11,000 White House documents were recovered from Mar-A-Lago, including 325 classified ones, though the indictment only takes issue with 31 documents related to national defense.

Here’s How Trump Might Defend Himself In Court—And Why It Could Fail