An older relative of mine, while perhaps not a committed fan of former President Donald Trump, is not not a fan. And he’s definitely not a fan of the legal efforts—at the state level in New York, at the federal level in Florida, and perhaps in Georgia, too—to prosecute Trump on criminal charges.
“Ooooh, Donald Trump used the wrong fork at dinner! Hit him with life in prison,” my relative will snark. “Oh no, you didn’t see Trump use his turn signal! Give him 30 years!”
This is a pretty standard Republican take on the allegations against their party’s de facto leader: Maybe he did what he’s accused of doing, but probably he didn’t, and the prosecution is nothing but political persecution, so it shouldn’t happen regardless. The possibility of guilt goes unacknowledged or ignored outright.
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But regarding his most recent indictment (this one by the feds), which concerns Trump’s personal retention of still-classified documents after his presidency, a recording CNN published Monday—in which Trump admits the papers are classified and that, as an ex-president, he no longer has the authority to declassify them—seems to settle this question.
The verdict: guilty.
CNN first reported the conversation heard in the tapes earlier in June, and the partial transcription available then was striking enough. But hearing it is something else.
There’s Trump, with perhaps the most recognizable voice on Earth, saying he knowingly did exactly what he’s accused of doing.
The papers are “like, highly confidential,” Trump explains. They are “secret information.” And while he’d like to share them publicly, he can’t, because “as president, I could have declassified it. Now I can't, you know, but this is still a secret.”
This tape was critical in the Justice Department’s decision to move forward with prosecution, The Wall Street Journal reports, and it’s not difficult to see why.
Before this revelation, I was inclined to say the Georgia case—in which Trump could be prosecuted for 2020 election interference, as demonstrated in the recorded phone call during which he asked state officials to “find” more votes for him so he could win the state—was uniquely compelling. There alone we had straightforward audio evidence of Trump doing what he was said to have done.
But with the recording released this week, remarkably, we have nearly the same thing in the documents case. A few months ago, proving Trump’s ill intent looked like a major obstacle to conviction. Not so much anymore. To all appearances, this recording has Trump acknowledging not only that he had the papers but also that he knew he should not have had them. That sounds like an admission of guilt for at least some of the charges in question.
(Speaking on Fox News on Monday, Trump denied this interpretation, claiming he “didn’t have a document, per se,” and that there “was nothing to declassify” because the papers heard rustling in the tape “were newspaper stories, magazine stories, and articles,” not classified documents. On social media he admitted the voice in the recording is his but insisted its contents actually exonerate him.)
Now, the tape seemingly settling the guilt question doesn’t answer other questions about this prosecution—questions that also deserve serious consideration.
For instance, did any actual harm come from Trump’s actions here? Is this “Loose lips sink ships”? Or is it “Loose lips put ships in real danger, and nothing happened this time, but only because you got very lucky while being very stupid”?
According to the indictment, the papers “included information regarding defense and weapons capabilities of both the U.S. and foreign countries; U.S. nuclear programs; potential vulnerabilities of the U.S. and its allies to military attack; and plans for possible retaliation in response to foreign attack.”
But if any concrete damage to U.S. national security resulted from what Trump did, to my knowledge, it has yet to be reported (and perhaps never will be).
Also unknown is whether these specific documents should have been classified in the first place. That description from the indictment suggests the answer is “yes,” but it’s hard to say for certain.
Or, more broadly, does our government routinely keep too much information hidden from the public it ostensibly serves? I’d say the answer here is definitely “yes,” as do many experts—though that doesn’t mean Trump was right to keep these papers.
Finally, the recording doesn’t solve the question of what should happen to Trump if he’s convicted, as now looks more likely. And here, I think, my relative has a point buried under all his hyperbole about forks and turn signals: Trump shouldn’t go to jail for this, nor, even now, is it certain that he will.
There's no mandatory minimum prison sentence for these charges, which means the judge will have discretion in sentencing. And that’s a good thing, because no one seriously imagines that Trump, in his eighth decade, presents an active, physical threat to the local community in Palm Beach. He shouldn’t go to prison—which isn’t to say there should be no consequences, only that the consequence shouldn’t be incarceration—because this isn’t a violent crime.
But Trump also shouldn’t go to prison because this is a crime we can absolutely guarantee he won’t and can’t commit again: All we have to do is not re-elect him as president. One way for that to happen is for Republican voters to accept his guilt here. The tape should make it easy enough. (But will it?)
