Here’s why the Trump tape puts the former president in serious legal jeopardy
The blockbuster CNN report earlier this week that federal prosecutors are in possession of an audio recording of Donald Trump in which he admits to keeping a classified document describing a potential attack on Iran, could have major legal implications for the former president, The Bulwark reports.
According to the CNN report, Trump is heard on the recording suggesting that, although he wishes to share the information, he’s aware that as a former president he can’t declassify them, multiple sources told the cable news channel, indicating he understood he was in possession of classified material.
Kim Wehle writes for the Bulwark that, if reports of the recording are true, it could provide compelling evidence for special counsel Jack Smith, who took over two sprawling investigations of the former president; the handling of classified documents at Mar-a-Lago and Trump’s role in the Jan. 6 insurrection.
Smith in the Mar-a-Lago case will have to prove what in legal circles is called “mens rea,” which is Latin for proof of a guilty mind.
Wehle writes that “Smith’s team would have to prove in some fashion 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. In general, prosecutors can prove mens rea using circumstantial evidence, which relies on inferences. But direct evidence is better.”
Wehle notes the typical example of indirect evidence would be determining whether it had been raining through inference.
“The Bedminster audio recording, if authentic, is of the direct kind—it presumably reflects Trump’s own words in his own voice expressing his knowledge or belief that he possessed classified information, that he isn’t supposed to share it, and that he does not have the authority anymore to declassify it,” Wehle writes.
“Coupled with his preposterous 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 audiotaped meeting suggests that Trump knew he had stuff that he had no legal authority to have.”
Wehle believes the audio may provide the “mens rea.”
“Given how cavalier Trump is about saying the quiet stuff out loud (his town hall attacks on E. Jean Carroll after her $5 million jury verdict produced a request for even more punitive damages), it would be surprising if, Lordy, there aren’t more tapes out there,” Wehle writes.
“So far, the Mar-a-Lago scandal hasn’t weakened Trump’s hold on the GOP base. But as Carroll’s case showed, juries are different. Assuming the reports about this audio recording are accurate, it seems ever more likely that Trump will be held to account, and the American public will have its day in court.”
Read the full article here: https://plus.thebulwark.com/p/why-trump-tape-matters-for-mar-a-lago-case'Sharply incriminating': ex-federal prosecutor explains how Jack Smith has upper hand in docs probe
Donald Trump's criminal intent in the classified documents investigation won't be difficult to prove if Jack Smith does have a copy of the audio in which the former president admits to possessing military plans and discussing them with others.
If special counsel Smith has the audio, which purportedly includes an admission that he knew he couldn't just instantly declassify documents and was first reported by CNN, that could mean a lot, according to former federal prosecutor Glenn Kirschner. Kirschner.
Appearing on MSNBC on Friday night, Kirschener was asked by host Ali Velshi if the audio recording actually provides help in the area of criminal intent. Kirschener said it's important to remember that "everything you say is admissible in the court of public opinion" but not in a court of law.
"Guess what? Prosecutors get to introduce at a trial any statement they want that Donald Trump made," he said. "Because under the rules of evidence, it is a statement of a party opponent. They will surgically introducing statements."
The same doesn't go for Trump's side, Kirschener added.
"Donald Trump's lawyers are prohibited, under the rules of evidence, from introducing any of Donald's out of court statements to prove the truth of the matter asserted," he said. "So when we see these statements, conflicting statements from Donald Trump, prosecutors will exploit them by presenting the jury one statement where Donald Trump said I declassified everything with my mind, or automatically when I took them with me."
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