Just days after special counsel Jack Smith secured an indictment against former President Donald Trump for attempting to overturn the 2020 election, the former president claimed in an interview with Fox News that he had “every right” to do so. The question now is: Can that public statement be used against him in court? The answer is yes.
In the interview, which aired Sunday, Trump again complained about the Justice Department’s charges against him. “Who heard that you’re being charged with rigging a presidential election when you have every right to do so? You get charged and your poll numbers go up?” he asked. “When people get charged, your poll numbers go down. But that was such nonsense.”
This is where the rules of evidence come into play.
Trump always tries 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 doesn’t seem to realize is that every word that comes out of his mouth is admissible in a criminal trial.
This is where the rules of evidence come in—and this is where they will work to Trump’s great disadvantage at trial. The rules say that prosecutors can present any testimony a defendant makes against that defendant at trial. Such “party adversary testimony” is not subject to the hearsay rule, which prevents out-of-court testimony from being admitted at trial. For example, during a CNN town hall last year, Trump said he took classified documents with him to his Mar-a-Lago residence when he left the White House. If Smith’s case regarding those documents eventually goes to trial, prosecutors can present that testimony to the jury to prove that Trump did, in fact, knowingly take those documents.
However, the defense team does not have the same latitude to use Trump’s words in court. In the same CNN town hall, Trump claimed he had the “absolute right” to seize those documents under the Presidential Records Act. Trump’s lawyers are prohibited from using those out-of-court statements as evidence that Trump had that right (which, of course, is a lie, since the Presidential Records Act gives him no such right).
In some ways, the rules governing the admissibility of testimony by an adversary seem somewhat biased in favor of the prosecution. But if prosecutors make public statements about evidence in a case and then present evidence at trial that contradicts those earlier statements, the defense team might try to introduce the prosecution’s earlier words as testimony by an adversary. What’s good for the evidence goose is good for the evidence goose.
The result is that Trump’s lawyers were unable to present video or audio recordings of Trump’s statements as evidence at trial that could help his case, nor could they call witnesses to testify that Trump said X, Y, or Z, because such statements are prohibited under hearsay rules.
A defendant who has been the subject of several criminal proceedings would be well advised to keep his mouth shut.
The only way for Trump to rebut statements he made outside of court that were introduced as evidence by prosecutors would be for Trump himself to take the stand. In other recent cases, including his criminal trial in Manhattan, he has often (though not always) chosen not to testify — likely because he and his lawyers know he would be destroyed under cross-examination.
A defendant facing multiple charges would be wise to keep his mouth shut. Once again, the former president has proven he is incapable of doing so. That’s why I’ve said all along that if each of his criminal cases goes through the court of public opinion, Trump will be convicted in a New York minute – just as he was in, well, New York.
