Trump Blew an Enormous Hole in His Classified Documents Defense - by Dennis Aftergut - June 05, 20231:34 PM
On Friday, the New York Times reported that former President Donald Trump’s lawyers have told Special Counsel Jack Smith that their search of Trump’s properties has not turned up a classified document about American military options in Iran. A federal grand jury had subpoenaed the document because Trump had apparently spoken of possessing it in a July 2021 tape-recorded interview.
The lawyers’ inability to find the document would make no difference to any potential prosecution of Trump under the Espionage Act for his unauthorized retention of other national defense documents after his presidency ended, and for other crimes. Indeed, the recording will likely prove to be a damning piece of evidence against Trump, should he ever face trial.
In the tape recording, reported to be in Smith’s hands, Trump told the two interviewers that he had a document from General Mark Milley containing his plan to invade Iran. Per CNN, Trump expressed regret that he couldn’t show it to them because it contained classified information. Trump reportedly said he wished he’d declassified it.
Trump’s statements completely undermine the potential defenses he has repeatedly floated in the classified-documents case. Anticipating being charged, Trump has claimed that he had declassified the national security documents at issue and that he could do so “just by thinking about it.” This plainly ignored actual declassification procedure—and common sense—but Trump clearly thinks it has some intuitive appeal along the lines of a potential juror, or even more importantly to him, a Trump voter, thinking: Of course he can declassify documents, he was the president.
However, expressing regret about not having declassified a document signifies that he knew there was a formal process and that he hadn’t invoked it while president for at least one document he had wrongfully retained. Importantly, the recorded July 2021 statement contradicts his assertion that he had every right to keep the documents because he could declassify them in his head. In other words, he virtually established that he knew he had no right to possess classified documents, the difficult-to-prove mental element of the crime.
Perhaps the most amazing part of the July 2021 saga is that Trump had the interview recorded. He’s now handed federal prosecutors a tape, the absolute best evidence they ever get.
Let’s look at how prosecutors and Trump’s lawyers will deal with the fact that those lawyers could not find the document.
There’s a distinct possibility that the document about Iran is already in the government’s hands, although it may well not say what Trump reported to the interviewers—that Milley advocated invading Iran. In January 2022, six months after Trump’s taped interview, he turned over a batch of materials in response to a request from the National Archives. According to the Times, that batch included “one document concerning military options for Iran.”
Hence, in the July 2021 interview, Trump may have been discussing—probably inaccurately—the contents of a classified document that he gave back to the government six months later. Importantly, for purposes of proving his unlawful intent in retaining documents ultimately retrieved in the court-authorized August 2022 search of Mar-a-Lago, Trump’s recorded statements are powerful proof, whether or not they accurately described the document.
Now consider how Trump’s counsel might answer.
To preserve his defense that he could declassify documents unilaterally, his lawyer might argue: There never was such a document. My client simply made it up because he was angry that General Milley had just given an interview asserting that as the 2020 election approached, he worried that Trump might invade Iran to garner “rally ’round the flag” votes.
And so, the argument would go, he was just planting a false story—that Trump had Milley himself on the record planning to invade Iran—and maybe venting a bit.
And here would be the defense’s punchline: As an excuse not to show the interviewers a document he falsely boasted he had, the former president said something else that was untrue—namely, that he regretted not declassifying it. In truth, he sincerely believed he could declassify any document he wanted.
The problem is that lawyers can only make arguments in court based on the evidence. This would almost certainly require someone testifying as much on the stand. Trump, however, cannot take the stand to offer the story because he would subject himself to withering cross-examination.
Still, prosecutors have to prepare for all contingencies. One is that some die-hard Trump loyalist like Kash Patel, Trump’s former aide, might testify that Trump explained to him after the interview that he (Trump) had made it all up to get back at Milley and that Trump’s true belief was that he could mentally declassify anything. Patel has previously asserted that Trump had that power.
If, as is highly probable, Trump never told anyone that preposterous story, no one, however loyal to Trump, would testify to it under oath, subjecting himself to devastating cross-examination and perjury charges. And even in the unlikely event that Trump succeeded in introducing such evidence, prosecutors have powerful rebuttals.
First, the story doesn’t change the central fact—Trump’s taped statement that he had not declassified the document shows that he knew there was a formal process for doing so.
POPULAR IN NEWS & POLITICS At a Blowout Party for Unsung Republican Heavyweights, the Men Were Drunk—and Anxious The Supreme Court Has a New Bold Lone Dissenter Ron DeSantis’ New Target: 8-Year-Old Kids of Asian Descent Think You’re Pretty Smart? Prove It With This Week’s Quiz. Second, juries are instructed to “use their common sense.” The whole idea that Trump could magically declassify national security secrets “just by thinking about it” is ludicrous.
Third, prosecutors could simply ask in their argument to the jury: Was Mr. Trump lying to the interviewers on July 21, or was he lying to his witness who said Trump confided after the interview that he had fabricated the story? Mr. Trump’s defense is that he’s happy to lie to achieve what he wants!
NBC News reported on Saturday that the Washington, D.C., grand jury investigating the classified documents case is scheduled to meet again this week after a short break. Whether the jurors are being called back to return an indictment or to hear more evidence, Trump can be sure an indictment is coming.
Whatever the timing, by authorizing ill-advised tape recordings and giving out-of-court interviews in which he makes incriminating statements, Trump has cornered himself. Jack Smith appears to have one of the strongest cases ever brought against a political figure.
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