Dual revelations about Jack Smith’s probe into the mishandling of records at Mar-a-Lago suggest the special counsel’s probe into former President Trump is advancing on several fronts, bolstering the case against him.
Reporting from CNN this week indicates authorities have a recording of Trump discussing his inability to share the contents of a classified document he retained — undercutting his long-standing claim he declassified the records in his possession.
The special counsel is also seeking more information about the movement of boxes at the Mar-a-Lago carried out by two Trump employees, The Washington Post reported, while Trump attorney Evan Corcoran was waived off from searching certain portions of Trump’s Florida home following a subpoena, according to The Guardian.
Collectively, the reporting suggests the special counsel is buttressing Espionage Act charges over the episode and still building an obstruction of justice case over the ensuing saga to secure the return of the records.
The week was capped with a report from lawyers and former prosecutors who concluded, based on public reporting, that the DOJ has enough evidence in the case to merit charging Trump directly.
“The Department’s own precedent makes clear that charging Trump would be to treat him comparably to others who engaged in similar criminal behavior, often with far fewer aggravating factors than the former president. Based on the publicly available information to date, a powerful case exists for charging Trump,” the group wrote in a model prosecution memo published by Just Security.
“We conclude that Trump should — and likely will — be charged.”
The tapes, which have not been directly reviewed by any outlet and only described by sources familiar, capture Trump in summer 2021 discussing a classified document reviewing options for launching a possible attack on Iran.
In a short segment of a longer discussion, taped in preparation for a book on Trump’s chief of staff, Mark Meadows, Trump apparently suggests he would like to show them the document but can’t, given constraints on his ability to declassify documents after leaving office.
The tape is significant on two counts. It undercuts Trump’s ongoing claim that he declassified the records found at his home, something he at one point claimed a president could do simply by thinking about it.
But it also shows Trump’s awareness of the rules and processes surrounding the classification process ahead of the special counsel’s investigation, a key detail for prosecutors who would need to successfully demonstrate the former president willfully retained the records.
“The tape recording is most probative of Trump’s mental state. It shows that he knew the documents remained classified and shouldn’t be shared with others, which further undercuts any potential argument that he secretly declassified them,” Brian Greer, a former CIA attorney, told The Hill.
“It also makes it much easier to demonstrate that Trump’s retention of the documents was willful, a key element of an Espionage Act charge.”
Jim Trusty, an attorney for Trump, wouldn’t comment on whether the document in question was classified — saying during an appearance on CNN that Trump has “unfettered authority” to both declassify and personalize records from his presidency.
Trump, in a Thursday night interview with Fox’s Sean Hannity, also defended his actions without getting into specifics.
“All I know is this — everything I did was right. We have the Presidential Records Act, which I abided by a hundred percent,” Trump said.
Prosecution under the Espionage Act doesn’t require that information be classified, just that it deals with information important to the national defense. Plans for responding to Iran would likely qualify.
Part of the power of the tape is it allows prosecutors to hear in Trump’s voice his awareness of the rules surrounding the handling of sensitive information.
“If it is accurate as reported, I do think it’s very powerful evidence. One, it proves Donald Trump’s knowledge about the law regarding the handling of classified information. Unlike most laws, where ignorance of the law is no excuse, there are some exceptions to that law and one of them is handling classified information. You do have to know that it’s illegal when you violate that law,” said Barbara McQuade, a former U.S. attorney.
“Having Trump on tape talking about, ‘I wish I could talk about this, but I can’t because it’s classified and I should have declassified it before I left,’ — that’s pretty good evidence of his knowledge.”
Other developments in the case show the DOJ continues to actively pursue evidence that could lead to an obstruction of justice charge.
Justice Department officials recently questioned a second Trump aide who was seen on camera helping Trump’s valet, Walt Nauta, in moving boxes at Mar-a-Lago, including the day before DOJ officials came to collect classified material in June following a subpoena.
They’ve since asked additional questions about actions taken in July, when the DOJ issued a subpoena for video camera footage at Mar-a-Lago. That tape has been reported to have gaps, and the Justice Department recently spoke with two Trump Organization security officials about the matter.
In the warrant to search Mar-a-Lago, authorities said they had evidence of “obstructive conduct” and said that items “were likely concealed and removed from the storage room.”
Prosecutors also have at their disposal detailed notes from Corcoran, who removed himself from the Mar-a-Lago case after a judge pierced attorney-client privilege in the matter after determining that Trump may have misled him.
Judges have the power to strip the privilege if they believe legal advice has been used in furtherance of a crime.
Corcoran reportedly told authorities he was waved off of searching Trump’s office, where numerous classified records were found during the execution of the search warrant, and he said he was told any classified records would be found in the storage room with the records from Trump’s presidency. It’s unclear who waved him off.
Corcoran turned over 38 classified records in June in response to the subpoena, while the FBI found a little more than 100 more during their August search.
McQuade said building the case will involve painting a picture for jurors breaking down the timeline of moving the boxes and other actions taken amid various DOJ and Archives entreaties seeking the return of the documents.
“You do have to find statements and actions from which you can argue to a jury that we can infer the person’s intent,” she said, offering the example, “‘This was not an innocent movement of boxes. When they returned a small envelope and it actually turned out that they had 26 boxes, now that was not an oversight. When Corcoran was waved away from Trump’s office, that was not an innocent mistake.’”
“You know, if you can pile up enough of those at some point … the evidence becomes so overwhelming.”