Below is my column in the Messenger on former President Donald Trump revealing his defense to the damaging audiotape cited in the federal indictment. The defense could come at a cost at trial, but it is a calculated risk for the court of public opinion.
Here is the column:
Since the arraignment, much of the talk about the federal indictment of Donald Trump has focused on the audiotape on which the former president refers to what he said were classified plans to attack Iran. When it was first reported, I noted that the only cognizable defense would be “bravado,” an admission that Trump was exaggerating but that the document was not what he claimed.
Trump has now adopted that defense in an interview with Semafor and with ABC News. The problem is that bravado can come at a cost.
On the audiotape, Trump is apparently motioning to material on his desk and tells two interviewers: “I’ll show you an example. He said that I wanted to attack Iran. Isn’t it amazing? I have a big pile of papers, this thing just came up. Look. This was him. They presented me this. This is off the record, but they presented me this. This was him. This was the Defense Department and him. We looked at some. This wasn’t done by me. All sorts of stuff, pages long, look. Let’s see here. It’s that amazing. This totally wins my case, you know. Except it is, like, highly confidential, secret. This is secret information. But look, look at this. You attack.”
When asked about the audiotape by Fox News’ Bret Baier, Trump insisted that “there was no document. That was a massive amount of papers and everything else, talking about Iran and other things.”
He has now admitted that he was engaging in “bravado,” declaring: “I would say it was bravado, if you want to know the truth, it was bravado. I was talking and just holding up papers and talking about them, but I had no documents. I didn’t have any documents.”
The admission was notable, given what Trump once wrote about in his book The Art of the Deal: “The final key to the way I promote is bravado. I play to people’s fantasies. People may not always think big themselves. but they can get very excited by those who do. That is why a little hyperbole never hurts. People want to believe that something is the biggest, the greatest and the most spectacular.”
Trump’s past embrace of bravado as a signature style will help him in arguing that, while he may have been braggadocious, he was not careless with a document that did not exist.
Notably, Merriam-Webster defines “bravado” as both “blustering, swaggering conduct” (as Trump described in his book) but also “the quality or state of being foolhardy.”
The Justice Department, in its case against the former president, is likely to focus on the second meaning. Even if the Justice Department cannot establish that the Iran attack plans were actually on Trump’s desk, it can use the audiotape against him.
The most immediate impact is that any possibility that Trump might take the stand likely just vanished. In a case about the mishandling of classified material, “bravado” is hardly a positive defense. It is perfectly believable that there was no classified document being waived around — but it also shows a “foolhardy” attitude that could further taint the defense over the pictures of boxes stored in a bathroom and ballroom. Waiving around documents while bragging that you kept classified material undermines claims that you took such documents seriously.
The greatest impact, however, is that it demolishes Trump’s defense that he declassified all of the documents. At the end of the audiotape, Trump states: “When I was president, I could have declassified it, now I can’t.”
That also could be bravado — but it is clearly baffling for a president who insisted that he could declassify material with a thought.
It effectively means that Trump is left with threshold challenges against the use of the Espionage Act, arguing that fights over presidential papers are supposed to be addressed under the civil provisions of the Presidential Records Act. Trump repeated that defense this week.
The odds are against Trump on ultimately prevailing with that argument in the courts. However, even if he did, it still could leave false-statement and obstruction charges on the table. And, at age 77, Trump cannot leave one count remaining if he wants to avoid the threat of a potentially terminal prison sentence.
Trump, however, is not without a strategy, albeit a high-risk one. The bravado defense is likely to play better with the public than a court. According to one recent poll, a majority of the public views the indictment as politically motivated or even as election interference. Some Republican presidential candidates have stated already that they will (or would consider) pardons for Trump if they are elected in 2024. As I have previously argued, Trump could give himself a self-pardon, too — including a prospective pardon before any conviction. Thus, if Trump can delay the trial until after the election, Justice Department special counsel Jack Smith may never see a jury in the case.
Trump also knows that while he cannot afford to lose one felony count, Smith cannot afford to lose one juror. With the trial’s transfer to Fort Pierce, Fla., Trump will have a far better jury pool than he would face in New York or, potentially, Atlanta. If the jury hangs, Smith would have to retry the case — a very uncertain prospect with a public losing its patience for the prosecution.
So, “a little hyperbole,” to quote The Art of the Deal, could go a long way where bravado works the best: in the court of public opinion.
Jonathan Turley, an attorney, constitutional law scholar and legal analyst, is the Shapiro Chair for Public Interest Law at The George Washington University Law School.