Donald Trump and the Case of the Audio Evidence

Does the former president know something that he’s not yet sharing?

The playing of the most recent Trump audio recording on CNN raises several important questions. First, how did CNN acquire the recording, which is part of an ongoing criminal investigation and prosecution? The only people who should have had access to it were prosecutors, the Trump aides who made the recording, and perhaps the Trump legal defense.

If prosecutors leaked it, that would almost certainly constitute a crime or at the very least a violation of Justice Department rules. If the Trump defense leaked it without Mr. Trump’s permission, that too would raise serious legal and ethical questions. CNN will almost certainly not disclose the source but others in the press should be asking these questions.

The second issue is whether there is any possible defense that the Trump legal team can offer to what the prosecution regards as a smoking gun with fingerprints. Mr. Trump has claimed in an interview that what he showed the writer and publisher were not classified documents but rather newspaper and magazine reports on the issue. 

Listening to the recording, however, suggests that Mr. Trump showed them a document that he said was secret and that he could have declassified, but did not, while he was president. It is likely, therefore, that the prosecution will be able to prove at trial that Mr. Trump showed the writer and publisher material that he believed was still classified.

It is possible, however, that although Mr. Trump believed the material to be classified, its contents had already been made public, and it had thereby lost its status as top secret and classified. Mr. Trump may not have known this, but some previously classified material may automatically lose that status when the contents are made public. If this is the case, then Trump could not be charged with unlawfully possessing and showing classified secrets.

Now here’s an interesting twist that grows out of my 50 years of teaching criminal law: what if Mr. Trump mistakenly believed that he was showing material that was still classified and secret? He said he believed it on the recording, but his belief may have been incorrect. Could he be charged with attempting a crime if he erroneously believed that material that had become declassified were still classified? 

That question has been a staple of criminal law classes for centuries. Indeed I won such a case nearly 50 years ago, when I successfully defended a man who shot his acquaintance believing he was alive when in fact he was already dead. This defense is denominated as “impossibility.” There are two kinds of impossibility under the law: legal and factual. 

It is a matter of dispute and degree whether these defenses are valid, and it is unclear whether they would be successful in a case like this one. But before we even get to that perplexing issue it would have to be established that the documents had not been declassified by prior publication.

The next question is who would have the burden of proof on that issue. Would the government have to prove beyond a reasonable doubt that the contents of the documents had not been publicly disclosed and thus effectively declassified? Or would the defense have to offer proof of prior publication? This, too, is a complex and difficult question.

Beyond the fascinating issues posed by CNN’s release of the audio tape, the burden of proof has now been shifted in the court of public opinion. In the court of law the burden always remains on the prosecution. Yet the public is entitled to draw its own conclusions from the available evidence. 

Listening to the recording with one’s own ears, rather than reading it through the filter of an indictment or press bias, places the burden on the Trump team to explain what everybody can now hear from Mr. Trump’s own mouth. So far the explanations have been less than satisfactory, but this is just the beginning of what promises to be a long process, both in and out of the courtroom.

Normally defendants are instructed by their lawyers to remain silent before a trial, but here the defendant is running for president and complete silence is not really a political option. So let’s see how the Trump teams — both legal and political — handle the most recent disclosure, namely the recording of what appears to be incriminating statements. 

Mr. Trump has already stated that the recording is exculpatory. Perhaps that is wishful thinking, or perhaps the former president knows something that he is not yet sharing.