TRUMP HOISTS HIMSELF ON HIS OWN PETARD

Sooo... as a commenter at Charlie Pierce’s blog posted, “it turns out there is arrest for the wicked.”

This past Wednesday, CNN broke the news that Special Counsel Jack Smith has in his possession an audio recording of a July 2021 meeting at Donald Trump’s Bedminster, New Jersey, golf club in which the orange menace lets it be known that he has a classified document the topic of which is a potential attack on Iran. He then goes on to say that the document was written by General Mark Milley, chairman of the Joint Chief, in which Milley argues for an invasion of Iran, which he - Trump - opposed. He then goes on to admit that he would like to share the document with those present at the meeting, but is aware that he cannot declassify documents, since he is no longer President. As Charlie Sykes put it, if it’s real it’s a “smoking tape”- as close to a smoking gun with Trump saying “Yes, this is the gun I shot the guy on Fifth Avenue with” as prosecutors could hope for, because it goes directly to Trump’s state of mind.

The question is, does it exist? A subpoena has been issued for the document (since the information is too old - “stale” - to obtain a search warrant for Bedminster to look for it) but Trump’s collection of lawyers with licenses found in boxes of Wheaties claim they are unable to find it.

That it might all be a bluff on Trump’s part is not beyond the realm of possibility. The meeting with Mark Meadows’s ghost writers of his “memoir,” “The Chief’s Chief,” occurred a few weeks after the publication of Philip Rucker and Carol Leonnig’s tell-all, “A Very Stable Genius,” which broke the news that in the final weeks of Trump’s occupation of the White House, General Milley did everything he could - including calling his opposite number in the People’s Republic of China - to make it impossible for Trump to start a “wag the dog” war in a last-ditch effort to remain in office. Trump was on a tear about Milley, considering the acts to be treason to his person, and wanted to do what he could to smear Milley. Given Trump’s vague connection to the truth, it’s possible the document does not, in fact, exist.

Interestingly enough, the fact that he wasn’t actually waving around an official secret document that he didn’t possess doesn’t change the fact he can be charged under the Espionage Act for saying he did in an effort to influence the ghost writers.

So... let’s examine just what his alleged possession of this reported recording and his admission that he has no authority to declassify it, means for the investigation and potential prosecution of Trump.

Smith was assigned as Special Prosecutor to handle two broad investigations relating to the ex-president: one regarding Trump’s efforts to stymie the transfer of power after the 2020 election, including his involvement in and incitement of the January 6th insurrection; the other regarding his retention of classified documents at Mar-a-Lago for over 18 months in disregard of multiple requests for return of the documents by the FBI and the National Archives. In August 2022 - 13 months after the recorded conversation took place - the FBI executed a search warrant at Trump’s White House (that’s actually beige) In Exile, and a federal magistrate judge later unsealed the warrant, publicly revealing that it authorized the government to seize “all physical documents and records constituting evidence, contraband, fruits of crime, or other items illegally possessed” in violation of three statutes, which together offer a roadmap of how the recording could be helpful to prosecutors: 18 U.S.C. §§ 793(e), 2071, and 1519.

All three require what’s known as “mens rea” - proof of a guilty mind - to secure conviction. Smith would have to prove that Trump acted willfully, knowingly, or intentionally and not just out of hubris, ignorance, or neglect in taking the materials and then repeatedly blowing off the FBI. Prosecutors can prove mens rea using circumstantial evidence, but direct evidence is better.

A classic example from law school of circumstantial evidence taking he fact that the ground is wet in the morning to infer it rained the night before. Direct evidence would be testimony of a witness who says, “I saw it rain.”

The Bedminster audio recording, if authentic, is direct evidence; it presumably is Trump’s own words in his own voice expressing his knowledge or belief that he possessed classified information, that he knows he isn’t supposed to share, and that he knows he no longer has the authority to declassify it. When added to his looney public talking point that “If you’re the president of the United States, you can declassify just by saying ‘it’s declassified,’ even by thinking about it,” the audiotape is legal proof that Trump knew he possessed documents he had no legal authority to possess or to declassify.

Meadows’s book includes an account of a meeting, presumably this one, in which Trump “recalls a four-page report typed up by [former Chairman of the Joint Chiefs of Staff] Mark 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.”

Kaitlan Collins asked Trump at the CNN “Town Hall” if he had shown documents marked as classified to anyone since leaving the White House. “Not really,” he replied, “Not—not that I can think of.” Yet there were two people at the Bedminster meeting who were working on Meadows’s memoir, along with several Trump aides, including communications specialist Margo Martin, who made the recording in accordance with Trump’s direction. Smith has already had Martin before the grand jury, where she testified that she “routinely taped the interviews Trump gave for books being written about him.” They have also already questioned Milley about the incident.

What’s important is that none of these people he spoke to in that meeting had security clearances.

Whether the document Trump described was in fact classified is irrelevant. The event reveals important information regarding his state of mind - his “mens rea.”.

The Milley connection is important because the first statute listed in the warrant - the Espionage Act of 1917 - predates the modern concept of “classified material” but bans misuse of “information” that relates to “national defense.” The Espionage Act is the main law regarding mishandling national security information; it was the basis for the FBI investigation of Hillary Clinton’s use of a personal email server when she was Secretary of State. It was the basis for charging and convicting General David Petraeus for sharing secrets with his mistress Paula Broadwell, and Army Private Chelsea Manning for providing WikiLeaks thousands of classified documents.

Section 793 of the Espionage Act, which is cited in the Mar-A-Lago warrant, applies when an individual has “unauthorized possession” of certain “national defense information” and “willfully” communicates it to someone who isn’t 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.” Trump’s revelation that he possessed a document regarding potential plans for a military attack on Iran, which he revealed to the two Meadows ghost writers, Margo Martin, and the other Trump aides who were present at that meeting, is - in the words of Andrew Weissman, “game, set and match” for conviction under the Espionage Act, which carries a sentence of 20 years.

Section 2071 criminalizes willful and intentional concealment or removal of a government record, while Section 1519 criminalizes knowingly concealing evidence with the intent to obstruct a federal investigation.

The audio recording is important here because it undermines the likely defense that his employees were responsible for cleaning out the White House and managing his Mar-A-Lago storage closets, and that he can’t be held responsible for their negligence.

Given how cavalier Trump is about saying the quiet stuff out loud - his town hall attacks on E. Jean Carroll, the day after her $5 million jury verdict, produced a request by her attorney for even more punitive damages - it would be surprising if, “Lordy, there are more tapes.” Trump had several meetings with authors and researchers that year that Martin would have recorded.

In the light of this news, Joyce Vance, Harry Litman and Andrew Weissman have all changed their predictions that Trump “might be” indicted to “when” he’s indicted. News reports have it that Smith is “winding up” his investigation and that any indictments could come as soon as this month. That’s on top of the likely indictment in Georgia for election tampering that Fani Willis has indicated could come in the second week of August, and the existing indictment for business fraud in New York City.

So far, none of these scandals have weakened Trump’s hold on the GOP base. But as Carroll’s case demonstrated, juries are different.

If the reports about this audio recording are accurate, it is now more likely that Trump will be held to account, and the American public will have its day in court. Sooner rather than later.

And he will be convicted and imprisoned by his own words. The man who famously never signs any document and never uses email, who only talks on the phone in “mafia boss speak,” has hoisted himself on his own petard.

As Joyce Vance put it in her post last night:

“If Donald Trump was anyone other than Donald Trump, he would have pled guilty by now to the charges that are inevitably coming from the Mar-a-Lago search. Of course, if he was smart, he would have comprehensively searched and returned everything in his possession the minute the National Archives came knocking. So, this isn’t about whether he’s smart. It’s about whether he has a survival instinct and some common sense at this point.

“He does not. If he did, the only smart move, after his failed efforts at deceiving federal prosecutors and his attempt to obstruct the investigation came to light, would’ve been a guilty plea. That’s the only thing that could limit his exposure on charges, some of which carry a statutory maximum penalty of twenty years in prison.”

Clio, Muse of History, has put a case of Dom Perignon on ice.

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P.S.: there is a chance I may be offline for a couple days at the beginning of this week to have my computer checked since it has just reported a problem. Have no fear, as the Terminator said, “I’ll be b ack.”