It is a complicated matter to determine if recording retired federal Judge Maryanne Trump Barry broke any laws, Harvard Law professor emeritus Alan Dershowitz told Newsmax TV on Monday.
"Judge Trump was a terrific judge," Dershowitz told "American Agenda." "I remember appearing before her. She had an extraordinary reputation."
President Donald Trump's sister was secretly recorded making disparaging comments about him by their niece, Mary Trump, and she might not want her feelings about her brother publicly released, but the legality of it is an open question, Dershowitz said.
According to a story published in Sunday's The Washington Post, Barry was recorded saying all the president wants to do is "appeal to his base," and cursing when she spoke of his use of Twitter and of his "change of stories. The lack of preparation. The lying. Holy s**t."
But there are many questions about the recording, including if the conversation between Barry and her niece, the author of a tell-all book about the Trump family, was on or off the record, Dershowitz said, and that is hard to prove.
"It depends on the facts," including whether, by agreeing to talk, Barry gave implicit consent to use her comments, Dershowitz said.
He added Mary Trump was not talking to her aunt in her own role as a licensed therapist, but as someone who was writing a book, which gives her some First Amendment protections.
"I think she would be judged largely in the marketplace of ideas, but let's not weaponize our legal system against people who do things we don't like, unless the evidence is clear beyond any real dispute that the criminal intent or criminal act occurred," Dershowitz said.
It would also be hard to show if any malice came into play with the recording, he added.
"I think the first rule is anything said by a family member should be taken with a grain of salt," said Dershowitz, as there might be other dynamics at play.
Dershowitz also commented on a lawsuit filed against Trump by the owners of the Chinese video app TikTok over his executive order forcing the sale of the company.
"It's very hard to challenge executive orders," Dershowitz said. "Generally, in these kinds of cases, the president's view prevails. There's another issue as well, too, and that is companies that exist outside of the United States may not have the standing to raise certain constitutional and other statutory issues."
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