“The only possible case that they could consider making against the former president and a future presidential candidate—it’s not going to be mishandling of classified information—it would be the Nixon crime: obstruction of justice,” he said in a recent interview with Newsmax, referring to former President Richard Nixon.
Dershowitz pointed to a recent disclosure that empty folders were allegedly discovered by FBI agents during the Aug. 8 raid targeting Trump’s Mar-a-Lago home.
“And the only way you get an obstruction of justice conviction—and I don’t think there’s any evidence of it now—is to show that there was willful and deliberate destruction of subpoenaed material, which is what happened in the Nixon case,” he said.
Noting that he’s engaging in “total speculation,” Dershowitz said that “those empty envelopes can prove to be significant if the government could prove that there was classified material in those envelopes, which are marked ‘classified,’ and then that Trump himself, or others under order from him, deliberately ripped up or destroyed that material to prevent the Justice Department from coming upon it.”
But Dershowitz, who served on Trump’s legal team during his first impeachment trial, said he doesn’t believe the alleged mishandling of classified material rises “to the level of passing” what he calls “the Nixon test or the Hillary Clinton test.”
The former president and members of his team said that he issued declassification orders on certain materials when he was still president. On Truth Social last month, Trump made note of an executive order he issued a day before leaving office to declassify some documents relating to the FBI’s Crossfire Hurricane investigation.
In the meantime, Trump is calling for a judge to appoint a special master to review the material that was removed by agents from his home. On Sept. 1, U.S. District Judge Aileen Cannon said in a hearing that she will not rule yet on Trump’s request.
Attorneys for the federal government said a DOJ filter team already processed the materials that were taken from Trump’s resort and separated those that potentially apply to Trump’s attorney-client privilege. They argued against Trump’s request to seek a special master.
Trump’s lawyers revealed that he was cooperating with the government regarding the documents and asserted that the FBI raid was an unprecedented and extreme step.