On Monday night, CNN published an exclusive regarding former President Donald Trump’s federal indictment: audio of him allegedly discussing and sharing a classified document with civilians.
Although much of the tape’s contents was already covered in a written transcript included in Trump’s most recent indictment, the former president’s tone and his nonchalant approach to revealing classified information only bolster allegations that he knowingly kept sensitive documents and disclosed them to others who didn’t have clearance, legal experts tell Vox.
“It’s the accused proving the case against him[self]. You kind of don’t get any more direct evidence than that,” says Abbe Smith, a Georgetown law professor and criminal defense attorney.
In the audio, Trump refers to a document he says is about attacking Iran as “secret” and “confidential,” and seemingly shows it to a writer in order to prove a point that he did not want to go to war and that other officials like General Mark Milley allegedly did.
You can listen to the full recording, which is the audio of a written transcript that’s part of Trump’s recent indictment, here. We spoke with four law professors who broke down why the tape only strengthens any case the prosecution presents, and how it directly contradicts recent claims Trump has made in an attempt to defend himself.
The following interviews have been edited for clarity and length.
What, if any, bearing do you see the audio of Trump’s tape having on the case against him?
Abbe Smith, Georgetown law professor: I think it’s very compelling evidence at trial, to hear the voice of the accused basically boasting in a gleeful manner about possessing and sharing what he understands to be classified material.
What feels especially compelling is his tone of voice, the light, cavalier tone. And the people surrounding him could only be described as sycophants because they’re giggling kind of nervously. One manages to eke out a reference to this being a problem. That’s also helpful in terms of context — that there is certainly intent. And intent is important.
I’m a criminal defense lawyer. If that was a client of mine, who was heard on audio saying what Trump said, my client would be embarrassed, and should be. And we’d be talking plea.
Now, here’s the thing. There’s always ambiguity, one can always argue ambiguity, ambiguity is a defense lawyer’s best friend. Because it’s the government that bears the burden of proof beyond a reasonable doubt, and what people say and what they think is oftentimes hard to discern.
The fact that he was the president of the United States and was in a unique position to understand the gravity of disclosing state secrets, I think his role works against him here. [It] works against the argument that what people say can sometimes be ambiguous, that people say things for a bunch of different reasons, and that he may have had no intention of actually revealing true secrets.
Oona Hathaway, Yale law professor: This just strengthens an already very strong case against Trump. It shows, as did the tape referenced in the indictment, that Trump knew that he continued to hold documents that were still classified. The tape also apparently records him showing the document to others in the room, who presumably did not have the proper clearances to view the classified document. This could potentially form the basis for an additional charge, not currently in the indictment, that he not only unlawfully withheld documents but willfully communicated them to persons not entitled to receive such information.
Claire Finkelstein, University of Pennsylvania law professor: It makes you realize how conscious he was of what he was doing and how intentional the conduct was.
I do think it does strengthen the evidence, not just because one picture’s worth 1,000 words, and when you hear his voice on the tape it makes a strong impression, but also because you hear him rifling through the pages. So you know, he is actually looking at that document, showing that document.
He is showing it not only to a member of the press, who has no clearance to look at it, but he’s showing it to staffers who are standing right there who have no clearance to look at it. And he appears to be reveling in the fact that he’s doing the wrong thing.
He really seems to get that this is the sort of thing you must never show and he doesn’t give any explanation or any justification for why he would show it.
What difference is there in the prosecution sharing audio versus the written transcript?
Smith: Audio admissions by alleged perpetrators have always been powerful evidence and will be here, because it’s kind of direct. It’s, you know, playing that in court, hearing the accused’s own voice, making what can only be called an admission. I think it’s way more powerful than words on a page.
It kind of breaks up the monotony, too. A skilled prosecutor knows how to vary the evidence. Sometimes it’ll be transcripts. Sometimes it’ll be audio, and it’ll keep the jury engaged. I imagine that this is the kind of thing that the prosecution would play in their opening statement.
Hathaway: The key difference is that it will be much more compelling for a jury. The voice is also clearly his, so that removes any doubt that the transcript is somehow not an accurate representation of what took place in the meeting.
Finkelstein: It has a tendency to impact people very much the way that the photograph of the documents lying on the floor, on the carpet in Mar-a-Lago, did, the photograph of the boxes stacked in the bathroom. A picture brings it home to you because you can have all sorts of possible explanations in your mind. And when you hear that, it really brings home to you just how aware he is of wrongdoing while he was doing it.
Caroline Fredrickson, Georgetown law professor: It’s clear when you’re laying a case in front of a jury, it’s a whole lot better to have something live than something that is on paper. And to be able to have the confirmation in Donald Trump’s voice, talking about national secrets with people who had no right to know about them, and his admission that they were classified and they have not been declassified, I think that impact on the listener is really profound.
Do you see the audio as countering the claims Trump made in a Fox News interview last week that he wasn’t showing anyone a classified document, he was showing news clippings and other materials?
Smith: Yes, I think that absolutely contradicts what he said because he makes reference to specific people, the general. That’s not a news clip.
Hathaway: I don’t think that his defense of the original recording passes the laugh test. But this new tape further reinforces that he was sharing some of the many classified documents we know he unlawfully retained with people not authorized to see them.
I will add that these are only the meetings that we have on tape. That there are now two recorded meetings in which he is sharing classified documents with people not authorized to see them suggests that this may have been a common practice. It’s hard to imagine that the only times he shared these documents was when he knew he was being recorded. For the court case, the prosecutor needs evidence, though, and these tape recordings are quite damning evidence against Trump.
Finkelstein: Absolutely, because he says on the tape “I could have declassified it when I was president but I didn’t. I should have.” He very clearly rejects his own lie.
He’s his own worst enemy as usual: He makes very clear, number one, the document was still classified when he showed it to the reporter and the staff members. And number two, that he knew that it was still classified.
Fredrickson: I think the evidence was very clear that he was showing people classified documents, that he knew he was showing people classified documents, and, in fact, he was reveling in it. What I think this really shows very dramatically is perhaps the ... insecurity of Donald Trump that he felt the need to show off in front of these people.
What specific charges against Trump in the indictment could this tape speak to?
Smith: I would think that the tapes help the overall prosecution enormously. Because like I said, it’s the accused proving the case against him[self]. You kind of don’t get any more direct evidence than that.
Hathaway: It reinforces all the charges under the Espionage Act. It might also support the other charges, including obstruction of justice, since it shows, again, that he knew he willfully retained classified government documents to which he did not have lawful access.
Finkelstein: It potentially applies to all of them. The important part is that it applies to his mental state, the mental state necessary to ensure that he has the mens rea of “willful” required for the various charges.
Fredrickson: Well, it speaks to all of them, really, but a couple of them [deal with the] mishandling of classified material. Clearly, this is evidence of that in a very strong way. But I think there’s also the issue of obstruction of justice, which does require some type of state of mind requirements. And again, it’s hearing Trump’s acknowledgment that the documents were classified but not declassified that is, I think, pretty damning.