Why the Trump Tape Matters for the Mar-a-Lago Case
Assuming press reports about it are accurate, here’s what the recording does to Trump’s potential defense case.

ON WEDNESDAY, news broke that Special Counsel Jack Smith has obtained an audio recording of a July 2021 meeting at Donald Trump’s Bedminster, New Jersey, golf club in which the former president acknowledges having a classified document about a potential attack on Iran. He then reportedly goes on to suggest, for about two minutes in total, that he would like to share the document with those present at the meeting, but is aware that he cannot declassify documents after leaving the White House. Although the actual recording is not public, “multiple sources” described it to CNN’s reporters. It seems to be, as Charlie Sykes put it, a “smoking tape”—about as close to a smoking gun as prosecutors could hope for because it goes directly to Trump’s state of mind.
So let’s take a look at just what this reported recording means for the investigation and potential prosecution of Donald Trump.
Recall that Smith was handed control of two broad investigations relating to the ex-president: one involving the efforts to stymie the transfer of power after the 2020 election, including Trump’s involvement in the January 6th insurrection, the other involving Trump’s retention of classified information at Mar-a-Lago for months in disregard of multiple requests for its return by the FBI and the National Archives. In August 2022—more than a year after the recorded conversation took place—the FBI executed a search warrant at Trump’s Florida residence, and a federal magistrate judge later unsealed the warrant. It authorized the government to seize “all physical documents and records constituting evidence, contraband, fruits of crime, or other items illegally possessed” in violation of three statutes, which together offer a roadmap of how the recording could be helpful to prosecutors: 18 U.S.C. §§ 793(e), 2071, and 1519.
All three of these statutes require some form of what’s known as “mens rea”—or proof of a guilty mind—in order to secure a conviction. 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.
A classic example of circumstantial evidence is inferring from the fact that the ground is wet in the morning that it rained the night before. Direct evidence, by contrast, would be the testimony of a witness who can say, “I saw it rain.” 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. 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.
At the CNN town hall last month, Kaitlan Collins asked Trump if he had shown documents marked as classified to anyone since leaving the White House. “Not really,” he said, adding “Not—not that I can think of.” Yet present at the Bedminster meeting were two people working on Mark Meadows’s autobiography (published later that year), as well as a handful of Trump aides, including communications specialist Margo Martin. None had security clearances.
It also turns out that Meadows’s book includes an account of a meeting, presumably the same one, in which Trump “recalls a four-page report typed up by [Chairman of the Joint Chiefs of Staff] Mark Milley himself. It contained the general’s own plan to attack Iran, deploying massive numbers of troops, something he urged President Trump to do more than once during his presidency.” Pentagon officials have reportedly denied that Milley ever urged attacking Iran. But whether the document Trump discussed at his golf club was in fact classified is beside the point—which is that the incident reveals important information about his state of mind.
The Milley connection is also notable because of the first statute listed in the warrant: the Espionage Act of 1917, which predates modern conceptions of classified material but bans misuse of information relating to “national defense.” The Espionage Act is the primary restraint on mishandling national security information and formed a basis for the DOJ investigation of Hillary Clinton’s use of a personal email server while serving as secretary of state. General David Petraeus (who shared secrets with his mistress Paula Broadwell) and Army Private Chelsea Manning (who gave WikiLeaks thousands of classified documents) were both charged and convicted under the law. (President Barack Obama commuted Manning’s 35-year sentence to 7 years; Petraeus was fined and sentenced to probation.)
The section cited in the Mar-a-Lago warrant applies when an individual is in “unauthorized possession” of certain national defense information and “willfully” communicates it to someone else who isn’t entitled to receive it, or “willfully retains the same and fails to deliver it to the officer or employee of the United States entitled to receive it.” It’s hard to imagine that potential plans for a military attack on Iran, if that document exists, would not qualify as national defense information.
The other two laws—§ 2071 and § 1519—criminalize willfully and intentionally concealing or removing a government record and knowingly concealing evidence with the intent to obstruct a federal investigation, respectively. The audio recording, again, is important here because it bears on the question of Trump’s state of mind, undermining the likely defense that his layers of employees were responsible for cleaning out the White House and managing his Mar-a-Lago storage closets, and that he can’t be held responsible for their negligence.
Smith’s team has already questioned Milley about the incident, and it’s been reported that Martin “routinely taped the interviews [Trump] gave for books being written about him.” She’s no doubt turned them all over to prosecutors. 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.
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.