Trump's 'Irrelevant' Indictment Defense Missing Key Elements: Ex-Prosecutor

Former President Donald Trump may be missing key evidence to prove in court that he declassified documents before taking them to his Florida residence, according to ex-prosecutor Andrew McCarthy.

Trump is facing 37 federal counts of retaining and mishandling classified information tied to the Department of Justice (DOJ) investigation of sensitive documents found in the former president's home. The DOJ charged in its indictment released last week that Trump took documents containing national secrets to his private Mar-a-Lago estate and subsequently obstructed government efforts to return the forms to the National Archives and Records Administration (NARA).

The former president has maintained that he is innocent in the DOJ's case and has repeatedly said that all documents in question were declassified by him before leaving office under the Presidential Records Act. He's also argued that presidents are able to declassify documents "even by thinking about it" and that it "doesn't have to be a process."

However, according to McCarthy, a former U.S. attorney and once-Trump ally, the former president would have to show a record of declassifying the documents to prove his defense in the courtroom without testifying as a witness himself.

"This is why I don't think he has a defense," McCarthy told radio show host and attorney Hugh Hewitt on Thursday. "First of all, I think if you do that under the Presidential Records Act, there should be a document supporting it. Otherwise, he's got to have a witness that shows that he did it. I don't think he has that, and I also think it's irrelevant, because it's not a defense to these charges."

Newsweek has reached out to Trump's press team via email for comment.

According to a release from NARA last week, the Presidential Records Act "requires the President to separate personal documents from Presidential records before leaving office," and the act "makes clear that, upon the conclusion of the President's term in office, NARA assumes responsibility for the custody, control, preservation of, and access to the records of a President."

According to the indictment, federal prosecutors are also in possession of an audio recording of the former president from 2021 in which Trump purportedly says that he is aware of a document in his possession that is not declassified. The tape, which was transcribed in part within the federal indictment, captures Trump during a private meeting while showing a visitor a "secret" military document: "As president, I could have declassified, but now I can't."

Trump has also argued that the DOJ's charges against him are a "hoax" designed to interfere with his 2024 reelection bid. McCarthy said during his interview with Hewitt, however, that he doesn't think that the federal case would go to trial until 2025 at the earliest.

"I think obviously, the way this is teeing up, if a Republican wins the election, it's unlikely the trial will happen," McCarthy added.

Several candidates challenging Trump for the 2024 GOP presidential nomination have been dismissive of the federal charges against him, and a handful have even pledged to pardon the former president if he were convicted.

Hewitt posed toward the end of his conversation with McCarthy whether the DOJ should "stay out of politics" this close to a presidential election, adding, "I do not understand why Merrick Garland green-lighted this."

"Look, I think justice, it's a very tough question, Hugh," McCarthy responded. "Because being a candidate for office cannot be immunity from prosecution for serious crimes. But at the same time, it's killing this country to have every single election cycle, the Justice Department and the FBI in the middle of our electoral politics. It's just destroying the country."