Opinion

When CNN reported on Wednesday night that special counsel Jack Smith has a recording of former president Donald Trump boasting at his Bedminster, N.J., club in 2021 that he had a highly classified multipage document relating to war plans against Iran, months of punditry that Trump would never be indicted went out the window. (The reported sounds of paper rustling suggest Trump might have had a document in hand.) According to news reports, he shared the substance of the document with others in the room, including biographers with no security clearance.

This evidence effectively destroys whatever defense Trump was trying to concoct (he didn't know there were classified documents, he declassified them, he thought they were not classified). Trump holds the presumption of innocence and has not been indicted. However, the last time such a damning piece of evidence (a "smoking gun") came to light, Richard M. Nixon's presidency was effectively over. (He left office less than a week later.)

News reports now indicate the federal grand jury hearing the documents case will meet this week. An indictment, if there is one, could come within days.

Trump's own words could provide damning evidence of a willful violation of the Espionage Act and of obstruction — and help fix venue in D.C., where the Justice Department almost certainly wants to try the case. Andrew Weissmann, the former lead prosecutor for special counsel Robert S. Mueller III, summed up the take of many career prosecutors: "I’m trying not to use hyperbole, but this is game over. ... If this story is accurate, there will be an indictment, and it's hard to see how there will not be a conviction." (A complete analysis from nine former prosecutors on the strength of the the special counsel's case — even before the tape recording was reported — can be found at Just Security.)

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When coupled with reports that a Trump lawyer was "waved off" searching the former president's office, a damning case of wrongful retention of highly sensitive (and likely classified documents) appears to have come together. Trump seems to have confessed that he knew the classification rules, didn't declassify documents before leaving office and knew that retaining them was illegal.

Moreover, his alleged dissemination of material to others (including allegedly verbally discussing this document with others) can solidify a separate part of the law: the prohibition against sharing and distributing confidential documents. A case of dissemination of classified documents would be so serious as to virtually ensure an indictment.

We don't know precisely what Trump said or what document if any he had taken, but, in a sense, it does not matter. Let's say the specific document he is alleged to have possessed didn't say what Trump said it did. It nevertheless confirms that Trump knew he hadn't declassified documents and was not supposed to keep any. This obliterates the "declassified in his mind" hooey he and his supporters have claimed. Sharing it with others makes prosecution all the more likely.

Ryan Goodman, a former national security lawyer for the Defense Department, reacted this way: "There it is. Espionage Act." He pointed to a recently unsealed opinion (ruling the attorney-client privilege was ineffective because of the crime-fraud exception) from Judge Beryl A. Howell that stated: "Other evidence demonstrates that the former president willfully sought to retain classified documents when he was not authorized to do so, and knew it." This evidence, if true, would fit that description.

Such glaring evidence of intent — even aside from the later alleged obstruction of the Justice Department (refusing to comply fully with the subpoena, moving documents) — makes for the sort of serious violation that prompts prosecution under the Espionage Act. To make matters worse, reporting suggests there are other recordings of Trump that could further implicate him.

The latest evidence also supports filing the case in D.C., where prosecutors likely would have a more favorable judge and jury than they would face in Florida.

Even before the most recent accounts, Laurence H. Tribe and Dennis Aftergut, analyzing Trump's admissions during the CNN town hall, explained:

The case for trying the case in Washington — where the alleged crime began — gets exponentially stronger with the newly revealed recording.

Strictly speaking, prosecutors don't have to prove motive in a criminal case, although it certainly helps juries reach the conclusion the crime was willful. But here, too, the smoking-gun recording might be powerful.

The CNN report explained: "The meeting in which Trump discussed the Iran document with others happened shortly after the New Yorker published a story by Susan Glasser detailing how, in the final days of Trump's presidency, [then-Chairman of the Joint Chiefs of Staff Mark A.] Milley instructed the Joint Chiefs to ensure Trump issued no illegal orders and that he be informed if there was any concern. The story infuriated Trump." The new developments suggest he was keeping the documents to burnish his image, debunk critics and/or show off to others. (Here's this classified document I have!)

The recording performs one more critical function: It puts Trump's actions in an entirely different legal universe than President Biden's or former vice president Mike Pence's retention of a few stray documents. (On Friday, Pence received a letter declining prosecution.) Trump's apparent willfulness (plus alleged dissemination) and alleged obstruction bear no resemblance to the facts so far reported in other cases. The Justice Department does not indict for sloppiness (as in the case of former secretary of state Hillary Clinton) but, time and again, it has pursued willful retention of sensitive documents (not to mention willful dissemination cases), especially when other crimes are at issue.

If equal justice under the law has any meaning and the evidence is there, Smith will have no choice but to recommend indictment, and Attorney General Merrick Garland will have no choice but to follow the recommendation. If Trump gets a pass on his alleged willful retention of war plans and alleged blabbing about them to others, then prosecuting virtually any other alleged violation would become all but impossible. And Garland certainly won't fancy being remembered for tying prosecutors’ hands for years to come.