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CNN obtains audio of conversation about classified documents (listen) (updated)

Justice Department via AP

Update: Trump has spoken about the story on TruthSocial:

There are a few things to note here. First, this tends to verify in ‘the court of public opinion’ that the recording is real and a true and correct copy of it. Now, in court, you would need more than that to get this evidence to a state that makes it admissible but it shouldn’t be difficult for the prosecutor to get it into evidence.


Trump also claims this exonerates him, but we don’t quite see how. The only thing that helps him at all is the complaints about how Hillary Clinton got away with doing something similar, but that only encourages jury nullification as we discussed below. As far as the traditional legal issues are concerned, the recording is bad news for him.


The toughest thing for the Trump defense to contend with in the upcoming ‘documents’ criminal trial is likely to be the alleged conversation Trump had that was described as follows:

In July 2021, at Trump National Golf Club in Bedminster, New Jersey (‘The Bedminster Club’), during an audio-recorded meeting with a writer, a publisher, and two members of his staff, none of whom possessed a security clearance, TRUMP showed and described a ‘plan of attack’ that TRUMP said was prepared for him by the Department of Defense and a senior military official. TRUMP told the individuals that the plan was ‘highly confidential’ and ‘secret.’ TRUMP also said, ‘as president I could have declassified it,’ and, ‘Now I can’t, you know, but this is still a secret.’

That’s on page 3 of the indictment, if you are following along at home. And there is an expanded version of the conversation on pages 15-16, which basically tracks with that summary.

Well, somehow CNN has obtained what it claims is that audio and presents it in this story:


If authentic, we are honestly not sure how his lawyers can defend it. The additional problem is that Trump talked about it in an interview. We have said before that it would be an injustice if Trump shut up completely:

But the serious point we are getting at, is that [telling Trump to shut up] might be profoundly bad advice for Donald Trump. You have to start with basic principles: What is the job of a lawyer representing Trump in this latest criminal case? If you said ‘to win the case’ you are subtly wrong. Your job is to attempt to accomplish Donald Trump’s goals—within the limits of the law and ethics. Now, winning the case is almost certainly a huge goal for Trump, but Trump wants something else: To be elected President of the United States in 2024. And to Trump, that might even be more important than winning the case. He might prefer to serve as President from a federal prison rather than be a free man but not president.

We imagine there is some ego involved, but he might also see an important principle to get the voters to repudiate the tactics that have been used against him in the last eight or so years. Perhaps the best way to stop the weaponization of the justice system is to ensure it fails.

And if you are Trump’s lawyer telling him to shut up, you risk creating a deeply unfair situation for Trump. Biden would be able to talk about the case (though he might have to be careful about what he said). DeSantis would be able to talk about it. Everyone running against Trump can use the charges against him, and Trump’s lawyer is going to tell him he can’t defend himself in the court of public opinion?

Indeed, to shift back to the higher principles, handicapping Trump in the election this way also might be one of the goals of this prosecution—or at least Trump might see it that way. In that scenario, he would literally be giving the prosecutors what they want if he shut up, which would encourage them to run these same tactics in the future against other candidates. Once again, the best way to prevent them from doing it again might be to make sure it fails.


But at the same time, Trump’s lawyers have to live with what he has said. In all frankness, if he was our client, we would have sat him down before he spoke to another living soul and asked him the toughest questions we could about everything. We don’t know if they did that before Trump had his interview with Brett Baier last week (maybe they did, for instance, and Trump ignored their advice), but he basically committed himself on that point to a very dubious defense.

You can watch much of the interview, here:

The part we are focusing comes at around the six-minute mark, and Trump claims in that July, 2021 discussion, that he didn’t really have any secret documents. If that audio is authentic, that really strains credibility.

Now, to be fair, if all the people at that meeting swear up and down that Trump didn’t have any such documents, then he might have a chance on that point. Remember, it is the government’s burden to prove beyond a reasonable doubt that he did, and if everyone says that it was just a newspaper clipping or something like that, there might be a reasonable doubt. But there is a reason why it is one of the earliest specific examples given in the indictment. Lawyers are taught to start with their best argument, and right now it clearly is the government’s best argument.

But for a government facing allegations that it is engaged in a politically-motivated prosecution, this also impacts that perception.


It’s funny. The fact that the FBI had the Hunter Biden laptop and had authenticated it didn’t leak until after Trump lost the election, but this audio leaks now—as the Hunter Biden story finally seems to be getting some traction in the media. Now, it is possible that it leaked from someone unconnected to the prosecution or the Biden administration—such as a hack of Trump’s lawyers’ computers by third parties—but to say it is suspicious is an understatement.

And all of this might feed into the ‘forbidden’ defense: Jury nullification. That is a term that actually sweeps in two different concepts. One concept is simply that the jury can interpret the law for themselves. The second is when a person has broken the law and the jury just decides it doesn’t care. And both might help Trump, openly or otherwise. We doubt an entire jury could be convinced to just ignore the law, but one Trump supporter might find him or herself on the jury and decide to cause a ‘hung jury.’ And one might find broader support for the notion that this kind of viewpoint discrimination violates the First Amendment (see RAV v. St. Paul, 505 U.S. 377 (1992)) and, therefore, under their interpretation of the Constitution, Trump has to be set free—because Hillary and Joe Biden got away with it, for instance.


Yet, at the same time, the recording (if authentic) is what it is. Even if jurors decide there is a reasonable doubt on each count, the public at large is not bound to that legal standard and might ultimately decide that criminal or not, what Trump did was irresponsible. It may be a dirty trick, but it still might work—which is troubling. The President is supposed to in charge of the administrative state. But if the administrative state can effectively stop a person from being president, who is truly in charge?

But that's not what journalism is about. Here's what it is about:

There is no claim there is video.


Finally, this person is trying his best to back up Trump’s defense:

So, the argument is that he was only responding to a New Yorker article, but that doesn’t really line up with what Trump was saying. We will keep an open mind, but if authentic, this is easily the defense’s biggest problem.


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