This evidence effectively destroys whatever defense Trump was trying to concoct (he didn’t know there were classified documents, he declassified them, he thought they were not classified). Trump holds the presumption of innocence and has not been indicted. However, the last time such a damning piece of evidence (a “smoking gun”) came to light, Richard M. Nixon’s presidency was effectively over. (He left office less than a week later.)
Trump’s own words could provide damning evidence of a willful violation of the Espionage Act and of obstruction — and help fix venue in D.C., where the Justice Department almost certainly wants to try the case. Andrew Weissmann, the former lead prosecutor for special counsel Robert S. Mueller III, summed up the take of many career prosecutors: “I’m trying not to use hyperbole, but this is game over. … If this story is accurate, there will be an indictment, and it’s hard to see how there will not be a conviction.”
When coupled with reports that a Trump lawyer was “waved off” searching the former president’s office, a damning case appears to have come together. Trump seems to have confessed that he knew the classification rules, didn’t declassify documents before leaving office and knew that retaining them was illegal. Moreover, his alleged dissemination of material to others (including allegedly verbally discussing this document with others) can solidify a separate part of the law: the prohibition against sharing and distributing confidential documents.
We don’t know precisely what Trump said or what document if any he had taken, but, in a sense, it does not matter. Let’s say the specific document he is alleged to have possessed didn’t say what Trump said it did. It nevertheless confirms that Trump knew he hadn’t declassified documents and was not supposed to keep any. This obliterates the “declassified in his mind” hooey he and his supporters have claimed.
Ryan Goodman, a former national security lawyer for the Defense Department, reacted this way: “There it is. Espionage Act.” He pointed to a recently unsealed opinion (ruling the attorney-client privilege was ineffective because of the crime-fraud exception) from Judge Beryl A. Howell that stated: “Other evidence demonstrates that the former president willfully sought to retain classified documents when he was not authorized to do so, and knew it.” This evidence, if true, would fit that description.
Such glaring evidence of intent — even aside from the later alleged obstruction of the Justice Department (refusing to comply fully with the subpoena, moving documents) — is the sort of serious violation that prompts prosecution under the Espionage Act. To make matters worse, reporting suggests there are other recordings of Trump that could further implicate him.
The latest evidence also supports filing the case in D.C., where prosecutors likely would have a more favorable judge and jury than they would face in Florida.
Even before the most recent accounts, Laurence H. Tribe and Dennis Aftergut, analyzing Trump’s admissions during the CNN town hall, explained:
When asked why he took government documents from the White House, Trump answered: “I was there and I took what I took . . . . I had every right to do it. I didn’t make a secret of it. You know, the boxes were stationed outside of the White House.”
With those fateful words, Trump admitted that he was involved in willfully removing the documents from the White House. It is a federal crime to “willfully and unlawfully … remove … any … document … in any public office … of the United States.” Indeed, the Justice Department has identified “improper removal,” or “unlawful” removal, as a key concern in court filings in the Mar-a-Lago litigation.
The case for trying the case in Washington — where the alleged crime began — gets exponentially stronger with the newly revealed recording.
Strictly speaking, prosecutors don’t have to prove motive in a criminal case, although it certainly helps juries reach the conclusion the crime was willful. But here, too, the smoking–gun recording might be powerful.
The CNN report explained: “The meeting in which Trump discussed the Iran document with others happened shortly after the New Yorker published a story by Susan Glasser detailing how, in the final days of Trump’s presidency, [then-Chairman of the Joint Chiefs of Staff Mark A.] Milley instructed the Joint Chiefs to ensure Trump issued no illegal orders and that he be informed if there was any concern. The story infuriated Trump.” The new developments suggest he was keeping the documents to burnish his image, debunk critics and/or show off to others. (Here’s this classified document I have!)
The recording performs one more critical function: It puts Trump’s actions in an entirely different legal universe than President Biden’s or former vice president Mike Pence’s retention of a few stray documents. Trump’s apparent willfulness (plus alleged dissemination) and alleged obstruction bear no resemblance to the facts so far reported in the other cases. The Justice Department does not indict for sloppiness (as in the case of former secretary of state Hillary Clinton) but, time and again, it has pursued willful retention of sensitive documents, especially when other crimes are at issue.
If equal justice under the law has any meaning and the evidence is there, Smith will have no choice but to recommend indictment, and Attorney General Merrick Garland will have no choice but to follow the recommendation. If Trump gets a pass on his alleged willful retention of war plans and alleged blabbing about them to others, then prosecuting virtually any other alleged violation would become all but impossible. And Garland certainly won’t fancy being remembered for tying prosecutors’ hands for years to come.
