Alan Dershowitz told Newsmax on Friday that the question whether to indict former President Donald Trump depends not on what's in the recovered Mar-a-Lago documents, but what isn't.
On ''The Record With Greta Van Susteren,'' the former Harvard professor emphasized that the Department of Justice's primary concern is potential missing files that Trump's legal team might not have turned over to authorities.
''I think a lot of people are missing the point. It's not what's in the inventory — that won't get Trump in trouble — it's what's not in the inventory,'' Dershowitz said.
''If the inventory can demonstrate that there are documents that are missing, that were destroyed, that were hidden, that were moved, that would help make the obstruction case, which is the only case that would survive,'' he added.
The constitutional law expert, who was on Trump's impeachment defense team, said he doesn't think the Justice Department will pursue charges against Trump merely for mishandling classified information, pointing out that former Secretary of State Hillary Clinton wasn't indicted in connection with her email scandal.
''But if there can be a case of willful destruction, I haven't seen the evidence of that up to now, but that's why it's important what these empty envelopes might contain,'' he proclaimed. ''So, it's not what's in the inventory. It's what's not in the inventory.''
Dershowitz also said that it will be difficult for federal prosecutors to prove malicious intent in the mishandling of files, asserting that ''they are not going to be able to prove intent, I believe.''
''You need to show a corrupt intent. Laziness is not enough. Selfishness is not enough. Thinking you're above the law is not enough. There has to be something much more serious than that,'' the lawyer explained.
''Did he want to sell them? Of course not. Did he want to give them to China? Of course not,'' he continued. ''So, I think they will have a very uphill job in trying to create an indictable offense.''
Dershowitz's comments are at the heels of the Justice Department's release of files obtained in the FBI search of Trump's South Florida property last month.
According to the inventory, 18 documents were marked top secret, 54 marked secret, 31 confidential, 48 empty folders read 'classified,' and 42 other folders were marked to return to the staff secretary or military aide.
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