Trump Was Just Caught in the Act

Image of Special Counsel Jack Smith and ex-president Donald Trump courtesy of Newsweek

The odds of an indictment of ex-president Trump on charges of espionage, illegal removal of government documents and obstruction of justice just shot up.

Perhaps way up.

On Wednesday evening, CNN reported that a tape exists (there’s always a tape) of Trump in a meeting at his Bedminster golf club resort in New Jersey in July of 2021. At least two Trump aides attended the meeting, including Margo Martin, a communications specialist who recorded the meeting at Trump’s instruction. Other attendees included aides to former chief of staff Mark Meadows. 

During the meeting, according to multiple sources, Trump claimed he was in possession of a classified Pentagon document about a potential attack on Iran. (This is an eye-popping fact, and definitely something no one else should ever have known.) The recording indicates that Trump understood, as far back as July 2021, that he had retained classified material after leaving the White House and that, though he would like to share the information, he was aware of limits on his ability to declassify records.

None of the attendees had any kind of security clearance that would permit them access to classified materials. The meeting was conducted to assist Meadows, who was writing a book about his time in office. Trump apparently insisted the meeting be recorded so that his recollections were not distorted by the author. Oops.

The tape has not been reviewed by CNN directly, but its existence and what it shows has been independently confirmed by The New York Times through its sources and by reporting from The Guardian, which further confirmed that the document was at the “SECRET” level—the kind of document over which the Department of Justice would likely bring charges.

Whoever leaked this information knew that it would land as a bombshell and that legal experts would immediately recognize its importance to the case that Special Counsel Jack Smith is building against Trump. 

Let’s walk through why that is.

Trump’s “declassification” defense

All along, Trump has maintained that he had the power, as president, to declassify any document he wanted to. According to former Trump White House aide Kash Patel, there was even a standing order that any documents Trump took with him to his residence from the Oval Office were automatically “declassified.” Other former Trump officials immediately responded that this claim was “ludicrous,” “ridiculous” and a “complete fiction.”

When it became clear that there was no paper record of any such standing order and that his own former advisors would contradict this claim, Trump shifted to argue that he didn’t have to write a declassification order down. Saying it, or even just willing it, would suffice. “There doesn’t have to be a process, as I understand it,” Trump told Fox’s Sean Hannity in September of last year. “You’re the president of the United States, you can declassify just by saying it’s declassified, even by thinking about it.”

This is nonsense, of course, but that is his defense so far. He reiterated that position in a recent CNN “Town Hall,” which was packed with Republicans and his supporters. Asked by host Kaitlan Collins whether he took classified documents to Mar-a-Lago, Trump responded, “I had every right to under the Presidential Records Act. You have the Presidential Records Act. I was there and I took what I took, and it gets declassified.” When asked if Trump had shown the classified documents to any third parties, he said, “Not really. I would have the right to,” and then “not that I can think of.”

Many of the charges Trump might possibly face, including espionage and obstruction, do not hinge on whether a document was still classified or allegedly declassified by the president. But seen more broadly, Trump’s “declassification” argument is really about his state of mind and intent, which are relevant to any potential charges. If he truly believed he was taking and keeping documents that were no longer government secrets, then, so he figures, the espionage charge (which requires a showing of willfulness) might not stick.

The tape blows this defense apart and exposes Trump to charges

Trump will now have a difficult time making the declassification argument. As former U.S. Attorney Joyce Vance observed on MSNBC, it would be “unbelievably powerful to play a tape recording for a jury and to have them hear the defendant essentially confess that he knew that he could not de-classify information on the spot.”

But the tape goes beyond destroying his own already lame defense. In just two short minutes on the recording, as author and former FBI agent Peter Strzok noted, Trump managed to fill in all the elements of an espionage charge under 18 U.S.C. Section 793:

Appears Trump - in his own voice:

- knew the procedures for declassifying information 

- knew he hadn’t done it

- may have disclosed it to someone not authorized to receive it

Former Defense Department special counsel Ryan Goodman noted the grave nature and importance of the document in Trump’s possession. “War plans are among the most highly classified documents,” Goodman stated, adding that the tape will put “pressure on DOJ to indict, and a jury to convict.” He continued, “Make no mistake. This is squarely an Espionage Act case. It is not simply an ‘obstruction’ case. There is now every reason to expect former President Trump will be charged under 18 USC 793(e) of the Espionage Act. The law fits his reported conduct like a hand in glove.”

Why’d he do it?

Trump’s illegal possession of a classified war plan, allegedly drawn up by Joint Chiefs of Staff Chairman Gen. Mark A. Milley, makes a kind of perverse sense if you are Trump.

Meadows’s autobiography apparently includes an account of the same meeting that aide Margo Martin apparently recorded. During that meeting, according to Meadows’s book, Trump “recalls a four-page report typed up by . . . [Gen.] Milley himself. It contained the general’s own plan to attack Iran, deploying massive numbers of troops, something he urged President Trump to do more than once during his presidency.” 

But Milley says something very different was going on. In a lengthy and frankly shocking investigative piece in the New Yorker, reporter Susan Glasser recounted General Milley’s long, behind-the-scenes campaign to prevent Trump from doing something crazy in his final months in office after losing the election—like attack Iran. Indeed, on the recording of the meeting, Trump is allegedly heard railing about Milley and how he was claiming he supposedly stopped Trump from striking Iran.

It’s not necessary to prove a “motive” in an espionage case. But it often helps clarify intent. The recording may explain why Trump illegally held on to a secret plan, alleged by Meadows to have been drafted by Milley, to attack Iran. Such a document would tend to refute the media narrative that Milley was doing everything to stop a crazy Trump from going to war with Iran. After all, Milley had drawn up plans to do just that. And Trump kept a copy as proof. 

Now, it may very well be that these aren’t Milley’s plans at all, or that they were drawn up at Trump’s insistence. We don’t know that part yet. 

But what we do know now is that Trump took that secret plan with him, possibly to use against Milley later. He then told others about what was in it, admitted that it was still classified, and further admitted he couldn’t declassify it because he wasn’t president any longer.

And that’s pretty darned damning to his defense.

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