What happens if Trump DOCTORS the Epstein files?

What happens if Trump DOCTORS the Epstein files?

This is Democracy Watch. Mark, with all eyes on the Epstein files, there obviously exists the distinct possibility that we may see a situation where Trump does release something that may have been altered. So, what are the legal implications first and foremost if there is if there is some information that’s been doctorred or altered in some type of way? Yeah. So, first of all, we need to set the stage here, Brian, in that Donald Trump is already laying this out, right? He has said that that uh that he believes there are these files or he’s acknowledged now there are these files. He has said that he believes they were written by Democrats and he’s listed a whole series of Democrats who has written them. And you know he uh uh earlier today said essentially I will release stuff that is credible. I think that was the word he used. He said basically Pam Bondi could release the stuff that is credible but the fake stuff you know the stuff that that the Democrats all wrote can’t be released. So you can start to see the machinery in his head already turning on, but naturally he he’ll be the ar orbiter of what’s credible or not naturally, right? So So the first thing for people to keep in mind from like a pure legal standpoint is that the files that are likely that likely exist are a compilation of the following things. Some of them are going to be transcripts, right? They will be transcripts of witnesses that for example may have testified for a grand jury. There will be FBI prepared memos summarizing what witnesses say. There will then also be a different category of records which are like bank statements and travel records and plane manifests that have been subpoenaed from third parties. So some of these records will be government created records by FBI agents by you know transcri transcription services and like and some of them will be subpoenaed records. All of them will be records of the United States government that were received through lawful process or generated through lawful process. And so it would be a crime for those records to be altered, right? Because those records are are are you know are are official records. What he might do is remember and I don’t know if you want to put this up on the screen or not. Remember when there was a hurricane and he just like drew like a uh you know like drew something else with a Sharpie. That’s right. He he altered the course of the hurricane with a Sharpie. Correct. And and you know people out there may be laughing at me, but he did it more recently with the Knuckles. remember the the uh MS-13 MS-13 like I I I do think that there is a possibility that what Trump will do is not like forge internal records which would create criminal exposure for I mean not him because he has immunity but potentially for others but also would clearly draw like the fire of people who work at the Department of Justice at a lower level or in the FBI who’d have to be actually involved in the you know in the manipulation of data and I think that would be a real trick. But you could see Donald Trump doing something very ham-handed and then insisting as he did to ABC News on national TV that that is real. And then like you know even though it was a different font and even though it was crazy and then you have all these mega people being like oh no no that what Donald Trump did is totally normal. Right. Well I guess that raises the obvious question. Okay. So you mentioned that if he were to actually um alter or or or doctor official documents that that would be a crime, right? But it’s it’s a crime in so far as as the DOJ is willing to enforce that crime. And so and so isn’t it doesn’t it kind of fall on deaf ears? Isn’t it kind of moot to say that something’s a crime when the agency that’s tasked with enforcing uh uh the law is is completely in his pocket? Right. Look, and this is why, you know, I am hanging on this distinction that that Donald Trump himself is drawing. And I think sometimes we, you know, who are on the left or or Democrats or just are sensible people, we kind of discount his language as, oh, you know, he’s just riffing or he’s just like, you know, he’s just using loose language. I think he is setting up this world in which he says these are the credible files and then there are these other files that we do not release because they were made up and they were fictitious. And by the way, Brian, I think he is setting up and and I’ve talked to you about this before. I think he is setting up the predicate for a special counsel to look into those others and say, “Look, they were forged records and so they can’t be released because they’re forged, but also we need a criminal investigation and then the special counsel can’t release them because there’s an ongoing criminal investigation.” But so I think that that is maybe the endgame here. But I think to your point on the records he releases, those are these so-called credible records, right? And the question is, are those just irrelevant or are they cherrypicked, right? Which is one possibility, right? Not that they’re forged or that they’re altered. They’re just cherrypicked, right? He says, you know, pull all the ones that that are, you know, hurt my political opponents and release those. or we have a sort of Sharpie gate and knuckle gate situation where they’re not like intrinsically forged internally. They’re not like altered in the internal database where there’d be like like I said criminal liability. They are altered in a political process um where there would not be criminal exposure, but you know, he would force everyone to fall in line. Um but you’re quite right. I mean, he has presidential immunity. So frankly, regardless of who the AG is, Supreme Court’s given him a free pass. And Pam Bondi would have to be, you know, like Pam Bondi’s, anyone who thinks Pam Bondi is an in independent functionary is just crazy. I mean, the other thing that Donald Trump said today, and you can, you know, you can put this, you can show this real quickly, this tape. You know, President Trump, would you consider appointing a special counsel to investigate the Jeffrey Epstein investigation? I have nothing to do with it. Yeah, that’s him. That’s Donald Trump doing his favorite line where he says, um, I’m not involved in that, right? Whether there’s a special counsel, you know, that’s not my decision. That’s up to Pam Bondi. Yeah. It’s up to Pam Bond. All right. So, Mark, you have a ton of legal experience, of course. And so in this situation, if you were just litigating a case like this, and and granted, I know that you focus on voting rights, but just taking kind of a 30,000 foot view of this where you have somebody who predicated so much of his of his brand, uh, staked so much of his reputation on releasing these files, and now suddenly you have Donald Trump where he said, um, the files are non-existent. Okay, fine. They’re not non-existent, but it was a product of the Democrats. Okay. Okay, fine. It’s, you know, it’s a it’s something that that it’s a hoax that that James Comey and John Brennan and and Joe Biden and Barack Obama put together. Okay, fine. You know, I I’d rather lose anybody in my base who would who wants to talk about these Epstein files than just release them myself. All all of this kind of circumstantial evidence, all of this atmospheric um uh behavior. What does that tell you um as an attorney in terms of in terms of his culpability here? Yeah. So there are a couple of principles that are applicable here under the rules of evidence. Okay. One is the idea of consciousness of guilt, right? So you so juries are allowed to hear evidence and to consider um whether the activities of an individual reflect consciousness of guilt. So in other words, they they are doing things that one would associate with someone who believes they themselves have culpability, right? So like cover up is consciousness of guilt, right? Like you have no reason to cover something up if you you know if there’s a body and you bury it. Uh you know the fact that you buried the body is not direct evidence that you killed the person but it’s kind of like good strong circumstantial evidence that you have consciousness of guilt that you needed to cover it up. Almost everything you listed would fall under consciousness of guilt. The second is that many of the things he said are just admissions. You know prior inconsistent statements. I mean, you know, in your run-of-the-mill criminal case, you know, when the when you when the person gets arrested for, you know, a drug crime and they say, you know, the the the the the gun in the car wasn’t mine and then there the guy’s fingerprints are on it. Well, right, the statement that the gun was not mine is a is is an impeach it’s an impeached statement, right? It is a it is a prior incons. when he then testifies at trial and says, “Oh yeah, my fingerprints were on it because I picked it up uh from my brother.” Right? You have this prior inconsistent statement. And so what you have in Donald Trump’s instance is kind of both of these. You have him shifting his story, right? Which is like classically admissible evidence because presumably if you are innocent, you have the same story the first time you’re asked as the the second time and the third time. the fact that he goes from there are no records to or we need to release the records. We don’t need to release the records do you know Jeffrey Epstein is a nobody there are no files um to then there are files and there are forgeries to you know his most recent iteration like that would be for both reasons that would be classically admissible evidence. Okay. to to to that point then again using and and granted with the usual throat clearing and caveat that that this is all conjecture. We don’t know what happened but in your experience seeing this kind of stuff whether it’s whether you know it’s it’s in your own work or just more broadly uh in this profession when somebody is doing what Trump is doing right now uh what does that lend itself to in terms of a conclusion? Yeah, look, there are there are sort of three ways in which Donald Trump could have approached the Epstein files. Okay, number one, he could have from the very beginning said, look, they collected a lot of records. I mean this was a massive investigation into child you know crimes against sexual crimes against children minors and there are a lot of files and they touch on a lot of people and most of those people or many of those people did nothing wrong right they are they are on slips of paper for people who return phone calls they may have had a meeting but it was completely unrelated right like Jeffrey Epste had a life outside presumably outside of is wrong criminal activity. And so Donald Trump could have started with the proposition that look this, you know, we cannot release raw files because it just wouldn’t be fair to anyone involved. Like that would have been one thing. But of course, for years and years and years, he has been saying the opposite. His vice president JD Vance told Theo Vaughn that like these files have to be released. So that like would have been one option. The second option is he could have said um look these records are complicated. They are covered by grand jury secrecy. They are raw investigative material. They are maybe minors. So I have asked the attorney general to distill these down into a narrative that lists every name of every person mentioned with a description of how they are mentioned. and then we will go to court and try to have them released in a responsible way and there’ll be some comprehensive thing. Honestly, I think if he had done either of those, parts of his base would have still been angry, right? Yeah. Like, but it would not have turned into a firestorm. What it tells me as a lawyer that you have someone on a Saturday evening all of a sudden out of the blue like fired out of a cannon come out with this very very bizarre I mean it’s a bizarre post. I mean, I know like people make fun of Donald Trump’s stream of consciousness, but I wrote about this in democracy docket. There is a breezy, carefree uh way in which Donald Trump loses his train like I I’m not excusing it, by the way. I think like it may be the signs of aging or whatever else. So, I’m not excusing it, but like when he goes from like, you know, sharks to boats to windmills, like there’s kind of like a carefreeness to it. that post on Saturday night was not that like this is not this is not like Donald Trump losing his train of thought. This is Donald Trump trying to redirect the energy and you can see that in the various statements he’s given ever since then. So, you know, like you said, I I’ve never seen the Epstein files. I’m not intimate with Donald Trump. He doesn’t share his secrets with me. So, I don’t know what’s going on here. But my my intuition, my judgment based on, you know, three decades of being a lawyer is that Donald Trump has reason to believe that in these files is something that would be embarrassing to him. Now, whether it’s him personally or his friends, how embarrassing, I don’t know. And that something happened. I don’t know what it is. Was it the news that the attorney general is coming under fire, the rift between the FBI and the attorney general, Bonino not showing up to work? I have literally no idea. Or was it just he woke up in a cold sweat? I don’t know. Uh but but something clearly happened on Saturday that marked a a like a genuine shift in both the tone, the substance, and also like I said, the the energy around it. No longer was this like, you know, sometimes you get a sense with Donald Trump around conspiracy theories, not only is it carefree, but there’s like a he’s in on the joke. He’s like, you know, he’s like, “Oh yeah, you know, the you know, my political enemies did dy. They’re evil, right? there the worst of the worst. And there’s kind you build the wall, right? There’s kind of like a a a a tone to it. It’s like a t like a taunting nature, but he knows what he’s doing. He knows he’s he’s he’s uh you know, kind of taking the piss. Correct. He didn’t attack his his own supporters today with that tone. Yeah. Right. He’s not he’s not delivering that tone. He’s delivering the tone of someone who seems to be uh very worried. Like this is someone who has who seems to be very worried. I’m Brian Taylor Cohen. I’m Mark Elias.

Democracy Watch episode 342: Marc Elias discusses risk of Trump doctoring Epstein files if released

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