Trump Made His Bedminster. Now He Has To Lie In It.

AP Photo/Charlie Neibergall,

It’s one thing to read in the papers about an audio file of a meeting, where Trump apparently showed our nation’s most top secret military plans to attack Iran to a group of random, unauthorized people at his golf resort in Bedminster, N.J.

It’s another and frankly satisfying thing to see that audio file referenced in a 37 count indictment issued by a Florida federal grand jury, charging Trump with violations of the Espionage Act.

And it’s still another thing to actually hear the audio file. It provides human context that written words and descriptions simply can’t.

On Monday night, CNN released two minutes of that recording, which it had obtained from an unknown source. And it landed like a bombshell. Listen to the clip here:

https://abc7ny.com/donald-trump-classified-documents-audio-tape/13430679/#

Today, I want to walk through some important things to keep in mind about this key evidence and provide some ways to think about what we just heard, especially as it relates to the strength of the federal case and what Trump may be up to. We’re going to start from very big picture-y ideas and then start drilling down.

Fair warning: Some of what I’m going to discuss may be upsetting, once you realize the implications. But I hope you come away more resolved than ever that this guy should go to prison for what he did, and that there are certainly a few ways that could happen.

Everyone ready? Let’s go.

What does the audio file establish?

The tape does three main things.

First, it serves as direct evidence of a crime, meaning it demonstrates the ultimate fact to be proved. Here that crime is willful dissemination of national security information to unauthorized persons. It’s helpful at this time to review what that statute actually says, at 18 U.S.C. 793(e), which makes certain people punishable for up to 10 years in prison, including:

(e) Whoever having unauthorized possession of, access to, or control over any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted, or attempts to communicate, deliver, transmit or cause to be communicated, delivered, or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it to the officer or employee of the United States entitled to receive it

See the part about “willfully communicates” or “attempts to communicate”? That’s what Trump was caught doing on the tape. It also shows, by the way, that he willfully retained a top secret war plan document, despite being asked by the government to return it.

Second, it plainly refutes Trump’s recent claim, made in response to Fox’s Bret Baier’s questioning during an exclusive interview, that “there was no document.” Trump had insisted in typical word salad style that all he had shown those writers and his comms team during the July 2021 Bedminster meeting were harmless, miscellaneous public items. He claimed,

There was no document. That was a massive amount of papers and everything else talking about Iran and other things. And it may have been held up or may not, but that was not a document. I didn’t have a document per se. There was nothing to declassify. These were newspaper stories, magazine stories and articles.

On the tape, however, it is plain to any person who is not a member of the MAGA cult what was happening: Trump was showing classified military war plans to the people in the room. 

Here, it’s worth reviewing the tape transcript carefully. From the New York Times piece on this.

“Isn’t it amazing?” Trump says as he shuffles through what he calls “a big pile of papers,” which he can be heard handling on the recording.

“This thing just came up,” Mr. Trump says, adding: “This was him. This was the Defense Department and him.”

“Wow,” a woman in the room can be heard saying, followed by a rustling of papers.

“Let’s see here,” Mr. Trump says, adding, “Look.” There is a brief pause, during which he appears to show people in the room something, and they start to laugh.

“This totally wins my case, you know,” he says, adding that the papers were “highly confidential, secret. This is secret information.”

“Isn’t that incredible?” Mr. Trump says later, adding, “This was done by the military and given to me.”

Then he appears to lean into a suggestion for the book writers. “I think we can probably, right?” Mr. Trump says. A woman responds, “I don’t know, we’ll have to see, you know, we’ll have to try to figure out a —”

“Declassify it,” Mr. Trump says. “See, as president I could have declassified it, but now I can’t.”

“Now we have a problem,” the woman says, laughing.

“It’s so cool,” Mr. Trump says, eventually calling out for someone to bring in Coca-Cola to drink.

Third, as the above conversation reveals, the tape establishes Trump’s state of mind very clearly—which is critical to the case because the government also must prove “willfulness” beyond a reasonable doubt. The tape shows that Trump understood that the document was classified and further that it had never been declassified. It also shows he understood that he couldn’t disseminate it to others in the room. 

And yet he showed it to the others anyway in an apparently ego-driven effort to prove he was right, and that General Mark Milley was wrong, when it came to Trump’s alleged desire to attack Iran. He bandied the document about like it was a trophy—and not a top secret military plan that, in the wrong hands, could cost American lives. He treated it not at all like something that the Iranians would probably pay millions of dollars for so they could prepare against a possible U.S. attack.

Most legal experts and presidential observers agree that the tape has Trump dead to rights guilty. As Garrett M. Graff stated, “Speaking as a Watergate historian, there’s nowhere on thousands of hours of Nixon tapes where Nixon makes any comment as clear, as clearly illegal, and as clearly self-aware as this Trump tape.”

Criming on tape

We are quite used to the idea of Trump getting caught on tape admitting to crimes or in the very process of committing them. Think of the examples: 

• He bragged to Billy Bush on the infamous “Access Hollywood” tape about being able to sexually assault women with impunity because of his celebrity status.

• In a taped call with his one-time fixer Michael Cohen, Trump discussed the Stormy Daniels hush money payments that are now the center of the Manhattan DA’s case in New York. (Fun fact, in the middle of it, Trump asks for a Coke. The man drinks a lot of Coke.)

• In his extortion attempt with Ukraine, he told President Zelenskyy in a “perfect phone call” that in exchange for military assistance, “I would like you to do us a favor though….”

• Trump called Georgia Secretary Brad Raffensperger and was recorded warning about a “criminal offense” and asking him to “find 11,780”—one more than he needed to carry the state.

So, why would he still be so brazen, knowing that people do tape record him? The answer is that Trump feels invincible, like no one can touch him. And until this year, the facts seemed clearly to support this. Trump faced zero criminal consequences for any of these actions, so he only became bolder and more awful in his behavior.

It’s fair to say, however, that this audio tape is different than the above examples. That’s because there’s no ambiguity about what Trump means and what he is doing, and the tape itself records the crime happening in real time.

So now the question is, how will he explain it away?

Trump did nothing wrong!

You may need to blink twice at this, but Trump’s official position, now that the tape is out there, is that it actually exonerates him. Said a Trump spokesperson,

The audio tape provides context proving, once again, that President Trump did nothing wrong at all. The President is speaking rhetorically and also quite humorously about a very perverted individual, Anthony Weiner, who was deep inside the corrupt Clinton campaign. The media and the Trump-haters once again were all too willing to take the bait, falling for another Democrat-DOJ hoax, hook, line, and sinker.

This approach may work with his followers, mostly by misdirecting them so that they ignore his plain violation of the law. But the reason Trump showed unauthorized persons top secret national defense documents isn’t relevant to whether he is guilty. He may have been trying to make a joke about Anthony Weiner, but it doesn’t change the fact that he was waving around a military plan to attack Iran that 1) he should not have had in his possession, and 2) no one else should ever, ever know about.

There are other big problems to this defense. For example, there were several witnesses in the room—whom the Justice Department no doubt has interviewed and likely already have appeared before the grand jury—who could attest to the fact that Donald Trump showed a top secret military plan to them. 

His actions that day further are consistent with how he acted with other people he wanted to impress as well. For example, the performer Kid Rock was reportedly taken aback when Trump showed him maps and asked him about his thoughts on North Korea. He and Trump were in the Oval Office in 2017, according to the musician,

looking at maps. I’m like, you know, like, “Am I supposed to be in on this shit?” Like I make dirty records sometimes. I do.

‘‘What do you think we should do about North Korea?” I’m like, “What? I don’t think I’m qualified to answer this.”

It would not at all surprise me if Jack Smith has further evidence of other illegal disseminations by Trump of the nation’s military secrets to unauthorized persons. We just may not have seen or heard the evidence of it yet.

This stuff matters

There’s a disturbing tendency, especially among Republicans, to downplay the importance of the national secrets that Trump had compromised so utterly. And it’s often hard for much of the American public to understand what is at stake. 

The fact that Trump was revealing the existence of a plan to attack Iran helps add specificity to the case. But it needs to be built upon more rigorously. What does that revelation endanger?

If Iran now understands that there exist specific plans to attack it militarily, it will divert more of its resources to defense, and it will certainly attempt to discover what those plans entail. It likely would seek to ally itself more strongly with America’s enemies such as Russia, perhaps even increasing drone sales and developing better drone technology in response. It would try to render obsolete whatever intelligence about Iran’s military defenses was already in the plans, perhaps by relocating hardware or rerouting anticipated supply lines.

If America, heaven forbid, ever had to execute on the plans, details about them could cost the lives of American service-members. After all, we will have already lost the crucial element of surprise. 

In short, Trump’s actions already likely have had grave and costly consequences to our national defense. This is why such documents are top secret and for his eyes only, not the eyes of civilians who have zero business knowing anything about it.

If Trump had stolen a priceless piece of artwork after serving as the museum director, he would be guilty. If Trump had stolen the formula to the Coke he loves so much and showed it to others, that clearly would be a crime. Certainly no less value should be placed on top secret military plan that put the lives of our military service-members and intelligence community in danger.

Who leaked the audio file?

Trump very much wants the story to be that the Department of Justice leaked the tape to the press because this is all part of the political prosecution designed to inflict maximum injury on his candidacy. He posted the following response to the airing of the audio file on his platform “Truth Social”: 

The deranged Special Prosecutor, Jack Smith, working in conjunction with the DOJ & FBI, illegally leaked and “spun” a tape and transcript of me which is actually an exoneration, rather than what they would have you believe. This continuing Witch Hunt is another ELECTION INTERFERENCE Scam. They are cheaters and thugs!

A few points here.

First, as White House Correspondent Jacqui Heinrich noted, Trump does not seem to challenge the authenticity of the recording, only that it was “spun” against him. It’s hard to see how his actual words and the actual conversation are a spin, but here we are.

Second, it seems highly, highly improbable that Jack Smith or his team would leak the tape. Having such evidence out there could only further taint the jury pool as the most critical evidence against Trump gets heard by many more Americans in advance of the trial. Indeed, it is far more likely that Trump or his lawyers leaked the tape to get it out there and have it lose potency as a news item while making jury selection harder. (Whether they would do this in violation of the Protective Order is unclear.) In a worst case scenario, his lawyers could try to argue that the tape can’t come into the case in Florida at all because it’s plainly too prejudicial and doesn’t involve any of the documents cited in the charges—and Judge Aileen Cannon might agree. I don’t think that’s likely, but it is in the realm of the possible.

Third, as legal analyst Andrew Weismann reminded, many other people may have had access to or a copy of this recording, including Trump comms staff and the ghost writers of Mark Meadows’s book, which was the reason for that fateful meeting in the first place. Any one of them or their attorneys might have turned the tape over to CNN.

So we got him, right?

We ought to have him. But here, we need to take a breath and consider the practical realities.

If all the jurors on this case respected their oaths to assess the facts and apply the law impartially, this would be a slam dunk. But this is a politically charged case, and because of the location of the trial, there is a high likelihood that one or more ardent supporters of the ex-president will be on the jury. All it would take is a single juror to defy reality and refuse to convict, and the jury would hang without a verdict. The government would then need to decide whether to retry the case, but you can imagine how Trump would spin that.

Just as it is nearly impossible to argue with a true MAGA adherent about facts, reality, common sense and the importance of democratic values, it may be equally impossible to sway the mind of any MAGA juror who comes in with a mission to save the former president from prison.

Add to that the fact that the judge randomly assigned the case has shown a bias toward Trump in the past, going out on the limb for him to appoint a special master and stymie the Justice Department improperly. She got smacked down by the Eleventh Circuit for this and may choose to behave properly this time around, but no matter how you slice it, she will have a lot of say over what transpires in her courtroom.

Jack Smith has about as strong a case as you could build when it comes to violations of the Espionage Act and obstruction of justice. But that doesn’t mean the system gets it right. In the end, it’s only as good as the worst person selected for that jury.

Something that’s been nagging me

There’s a hole in this narrative that’s been bothering me and other legal observers. And it is this: If the best and strongest evidence Jack Smith has is that audio tape, why isn’t dissemination of that military plan to attack Iran being charged directly?

Smith instead has charged 31 counts of willful retention of a number of documents recovered from Mar-a-Lago after the FBI conducted a warranted search of the property in August of last year. So where’s the charge for the Iran plan? It’s not in there.

The optimist in me hopes that more charges are coming, perhaps not in Florida. After all, the incident captured in the audio recording took place in Bedminster, New Jersey. If Smith has witnesses willing to testify that Trump showed or tried to show them that plan, as the audio file makes pretty darned clear, there’s a possible clean case that could and should be brought in New Jersey for that separate crime.

I should caution that this could just be me wishcasting. There isn’t any evidence of a New Jersey grand jury, and plenty of people have been scouring for clues of one with no luck. But I would be remiss if I didn’t at least raise the possibility that we might not be done here on the full set of charges around top secret and classified documents. 

If I were Smith, I’d much prefer a New Jersey jury pool than a Florida one, and I’d be fully within the law to bring separate charges around illegal dissemination of national defense secrets in the very venue where the crime took place. I have no doubt that this option has been fully considered by Smith and his team. We just don’t know what their conclusion was.

A final thought

If we focus on the Florida jury pool and judge and the possibility for a grave miscarriage of justice, we might lose sight of what really matters here: the process of accountability. I’ve written a lot about this, but it bears repeating that the act of seeking to hold Trump accountable for his crimes is by itself critically important and essential, separate and apart from the question of whether Trump ultimately goes to prison. We cannot control what a jury does in the end, but we can support doing everything we can to see justice through.

The American electorate is going to learn, irrespective of that court outcome, just how cavalierly criminal Trump was with our nation’s secrets, and why he must face prison time just like any other person who had done what he did. That will inevitably affect how his re-election efforts go, even if that is not the point of the prosecution, because while prison is one way to ensure he never compromises our nation’s secrets again, so is a crushing electoral defeat.

Jack Smith’s job is to try and achieve the former. It is our job to see to the latter.