The legal ramifications of Trump’s classified documents tape

Former President Donald Trump smiles at the camera

Former President Donald Trump smiles at the camera Photo by Rob Carr / Getty Images

The ongoing federal investigation into former President Donald Trump’s alleged retention and mishandling of classified documents after leaving office took on a new air of urgency this week. An exclusive CNN report claimed Justice Department special counsel Jack Smith possessed incriminating audio of Trump apparently undercutting one of his primary justifications for possessing the documents in question. Sources told CNN the recording features Trump admitting he cannot show guests at his Bedminster, New Jersey, estate certain documents — an indication that he understood the material remained classified despite his claims to have declassified them “by thinking about it” upon leaving office. According to one source, the documents being referred to on the tape contained specific tactical options for a proposed US invasion of Iran.

In a bombastic post on his Truth Social platform, Trump seemed to respond to CNN’s report, liking it to the unrelated resignation of Massachusetts US Attorney Rachael Rollins for ethics violations, claiming “all of the Democrat ‘Persecutors’ that are trying to Interfere with the The 2024 Presidential Election is leaking constantly, and illegally, about me.”

His attorney, James Trusty, was similarly insinuated while speaking with CNN’s Kaitlan Collins that the recording — and the leak of its existence to CNN — were part of a broader effort to “justify the persecution” of his client. Claiming he was taking a “stance on principle” to not “dignify [the report] by treating it as fact,” Trusty said that ultimately “we’re not going to try the case on CNN.”

Given the apparent significance of both the material and Trump’s alleged comments, what could this development mean for Smith’s investigation, and the former president’s legal future?

‘The last nail in a coffin’

CNN’s report is a “game over” moment, former federal prosecutor Andrew Weissmann told MSNBC. The alleged documents are some of the “most sensitive types of classified information” in the country, and not only will they almost certainly lead to an indictment in the future, but “it is hard to see how, given all the evidence that we’ we’ve been talking about, that there will not be a conviction here.”

The tape’s existence is “devastating for Donald Trump,” former federal prosecutor Paul Butler told MSNBC, because it shows Trump’s claim that he’d declassified the material found in his possession “was a lie.” If accurate, the recording is “the last nail in a coffin that already has a whole lot of nails in it,” agreed former SDNY civil division prosecutor Maya Wiley.

CNN’s report now “puts pressure on DOJ to indict, and a jury to convict” the former president, law professor, Just Security editor-in-chief, and onetime special counsel Ryan Goodman tweeted. “There is now every reason to expect former President Trump will be charged under 18 USC 793(e) of the Espionage Act,” he added, describing the law as fitting Trump’s alleged behavior “like a hand in a glove.”

‘Unlikely to dent his political position’

For as much as the reported existence of the incriminating recording represents a potentially major criminal exposure for Trump, it is not altogether unique as far as Trump making damning admissions on tape goes. The recording “seems unlikely to dent his political position as the front-runner for the GOP nomination in 2024,” wrote CNN’s Zachary Wolf. “But it could have real consequences in the legal limbo where he lives.”

Trump’s infamous “Access Hollywood” tape — and his ultimate embrace thereof — may have contributed to a jury ruling against him in author E. Jean Carroll’s recent defamation and sexual assault suit, Wolf noted. And don’t forget about the recording of then-President Trump urging Georgia Secretary of State Brad Raffensperger to “find 11,780 votes” in his favor during the 2020 elections, which has now reportedly formed the basis for Fulton County District Attorney Fani Willis’ ongoing investigation into potential electoral tampering in that state.

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