Why the newly obtained Trump recording complicates his Mar-a-Lago classified document defense

BEDMINSTER, NJ - JULY 31:  Former President Donald Trump walks on and talks to the fans at the 16th tee during the 3rd round of the LIV Golf Invitational Series Bedminster on July 31, 2022 at Trump National Golf Club in Bedminster, New Jersey.  (Photo by Rich Graessle/Icon Sportswire via Getty Images)
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Federal prosecutors have obtained a recording of former President Donald Trump on which he acknowledges that he was in possession of classified documents he took with him when he left the White House and that he did not have the power to declassify them, CNN reported Wednesday.

A number of other outlets, including Politico, CBS News and ABC News also confirmed the report, which said the recording is being scrutinized as part of special counsel Jack Smith's investigation of Trump's handling of classified documents after leaving Washington. According to the reports, in a 2021 meeting with people who don't have security clearances, Trump is heard at his Bedminster, N.J., golf course discussing a multipage, classified document in his possession that pertains to a possible attack on Iran. Notably, Trump is said to have spoken of his desire to tell other people about the document, but he acknowledged that he is legally prevented from doing so.

Those remarks, which have yet to be made public, appear to undercut Trump's claim that he had declassified all of the documents sought by the National Archives and the FBI.

'Even by thinking about it'

This partially redacted image shows documents seized during the Aug. 8, 2022, FBI search of former President Donald Trump's Mar-a-Lago estate.
This partially redacted image shows documents seized during the Aug. 8, 2022, FBI search of Trump's Mar-a-Lago estate. (Department of Justice via AP/File)

Since the FBI executed a search warrant on Aug. 8, 2022, at Trump's Mar-a-Lago home and country club in Palm Beach, Fla., and recovered dozens of classified documents, Trump has repeatedly claimed he had declassified the sensitive material.

"There doesn't have to be a process, as I understand it, because different people say different things. If you're the president of the United States you can declassify just by saying it's declassified — even by thinking about it," Trump said in a 2022 interview with Fox News host Sean Hannity. “In other words, when I left the White House, they were declassified.” 

On Wednesday, following the revelation of the existence of the recording of Trump at Bedminster, Trump lawyer James Trusty stuck to that defense.

“If you have the authority to declassify, you are not wedded to any bureaucratic process,” Trusty told CNN.

The argument ignores the fact that even unclassified documents are required to be handled by the National Archives when a president leaves office.

Pattern of obfuscation

Evan Corcoran.
Evan Corcoran, an attorney for Trump, leaves federal court in Washington on March 24. (Jose Luis Magana/File/AP)

In March, Trump lawyer Evan Corcoran testified before the grand jury investigating Trump's handling of classified documents, detailing the notes he took during meetings with the former president. Those notes are believed to show that Trump sought to contest a federal subpoena ordering him to hand over all classified materials. As with the newly obtained audio of Trump acknowledging his inability to declassify documents by "thinking" about them, Corcoran's notes could significantly undercut Trump's claim that he had been "cooperating fully" with the National Archives and the FBI.

The notes showed that Trump was seeking to contest a federal subpoena ordering the return of the documents, a revelation that contradicts his assertions of cooperation and could open him up to being charged with obstruction.

Espionage Act

Merrick Garland.
Attorney General Merrick Garland. (Mandel Ngan/AFP via Getty Images)

In April, the New York Times reported that federal prosecutors had asked multiple witnesses about whether Trump had shown them a map he had taken with him after leaving the White House that contained classified information.

If Trump is found to have revealed information contained in classified documents to people who did not have security clearances, the Justice Department could charge him with violating the Espionage Act, which prohibits such disclosures if they could potentially harm U.S. security.

Former Defense Department special counsel Ryan Goodman said in a Twitter thread Wednesday that the newly obtained recording makes it much more likely that Trump will be charged with crimes.

“Make no mistake. This is squarely an Espionage Act case. It is not simply an ‘obstruction’ case,” Goodman added. “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.”

For his part, Trump discounted Smith's investigation of the classified documents, saying it was politically motivated.

"Just like the Democrat inspired Fake Dossier, RUSSIA, RUSSIA, RUSSIA, UKRAINE, UKRAINE, UKRAINE, Impeachment Hoax #1, Impeachment Hoax #2, the 'No Collusion' Mueller Report, and so much else, the illegally leaked, by the DOJ, FBI, and Special 'Prosecutor,' Document story is a continuation of the greatest Witch Hunt of all time and, like all of the others, Fake News! I did nothing wrong, they did, and have been doing so for a long time. GREAT POLL NUMBERS - ELECTION INTERFERENCE!!!" he wrote Thursday on his social media site, Truth Social.