Brian Lehrer: It's The Brian Lehrer Show on WNYC. Good morning again, everyone. Let's take a few minutes to listen to and analyze this apparent smoking gun audiotape in the Trump classified documents case. As you probably heard, the indictment of Trump describes a recording in which Trump brags to a writer that he has a classified document from the Pentagon about war plans for Iran that he got after he was president, so he couldn't declassify it. He calls it classified and secret, but shows it to the writer anyway to try to settle a political argument with the Chairman of the Joint Chiefs of Staff.

Well, this week, as you may also know, CNN obtained what they say is the actual audio, so now we can all hear it for ourselves and see what we think of it as evidence in the criminal case and as evidence of whether Trump is fit for Office again. He remains consistently the early leading candidate for the Republican presidential nomination among likely primary voters surveyed by pollsters. We'll also get into the national security implications of having this document revealed, since Iran now knows something about what Trump and the Joint Chiefs of Staff Chairman were contemplating.

Just to complicate your thinking before we start, a mystery here is that the indictment describes and quotes from this tape, yes, but the document in question is not one of those Trump is officially accused of illegally keeping, and he's not charged with disseminating it, a more serious crime than just having it, even though showing it to a writer is exactly what he's doing on the tape; disseminating it.

With us to help explain what we hear on the tape in context is Quinta Jurecic, Senior Editor at the website Lawfare, which analyzes difficult national security choices. She's also a Fellow in Governance at the Brookings Institution and a contributing writer to The Atlantic.

Quinta, always good to have you. Welcome back to WNYC.

Quinta Jurecic: Thanks for having me.

Brian Lehrer: First, I'm going to play basically the whole two-minute tape, it's about two minutes, and then we'll replay a shorter piece of it that might be the most legally consequential. Here goes with the full version. Trump is talking to, apparently, two writers helping Trump's former chief of staff, Mark Meadows, write a memoir. Two of Trump's own staffers are also there. This is in July of 2021 at Trump's Bedminster, New Jersey, Golf Club. Trump is arguing that Joint Chiefs of Staff Chairman, Mark Milley, was wrong to accuse Trump of plotting to attack Iran because it was Milley himself who drew up Iran war plans. We pick it up there.

Donald Trump: Well, with Milley-- Let me see that. I'll show you an example. He said that I wanted to attack Iran. Isn't it amazing? I have a big pile of papers. This thing just came out. Look, [papers rustle] this was him. They presented me this-- this is off the record, but they presented me this. This was him. This was the Defense Department and him. We looked at some. This was him. This wasn't done by me. This was him. All sorts of stuff. Pages long. [papers rustle] Wait a minute. Let's see here. [laughter] I just found-- Isn't that amazing? This totally wins my case, you know. Except it is like highly confidential, secret. [laughter] This is secret information. Look at this, you attack--

Female Speaker 1: Hillary would print that out all the time in her private emails [crosstalk]--

Donald Trump: No, she'd send it to Anthony Weiner, [laughter] the pervert. By the way, isn't that incredible?

Female Speaker 1: Yes.

Donald Trump: I was just saying-- because we were talking about it, and he said he wanted to attack Iran [crosstalk]--

Female Speaker 1: He said you did [crosstalk]--

Donald Trump: These are the papers. This was done by the military and given to me. I think we can probably-- right?

Female Speaker 2: I don't know. We'll have to see. Yes, we'll have to try to figure out a [crosstalk]--

Donald Trump: Declassify it. See, as president, I could have declassified, now I can't, you know, but this is classified [crosstalk]--

Female Speaker 2: [chuckles] Yes, now we have a problem.

Donald Trump: Isn't that interesting? It's so cool. Look, we're here and I have-- and you probably almost didn't believe me, but now you believe me.

Female Speaker 2: No, I believed you.

Donald Trump: It's incredible, right? [crosstalk] Hey, bring some Cokes in, please.

Brian Lehrer: "Bring some Cokes in, please." That's how casual he was about the whole thing. Trump on tape, seeming to show three people a sensitive military document that he says flat out is classified, and he did not declassify it as president. The tape was described in the Special Counsel's indictment and now obtained and released by CNN.

Our guest is Quinta Jurecic from The Atlantic, the Brookings Institution, and the Lawfare blog.

Quinta, how much did Trump incriminate himself there?

Quinta Jurecic: Quite a lot, I would say. I should say that the transcript of this interaction is available in the indictment released by the Special Counsel's Office, but it really is something else to really hear him say. As you say, that clip at the end where he says, can we get some Cokes, I will say that's not included in the indictment.

The thing that's really striking about this is that-- There's a couple things. One is that it makes clear that Trump here is saying he did not declassify this when he could have as president. That's important because one of the main lines of defense that he and his allies have been using in the press is that, well, Trump declassified all this when he was president, and if there isn't documentation of that, that's because he's capable of declassifying it just by thinking about it. Now that's a silly argument, and we can talk about why, but that is the argument that he's made. What's super important here is that he's saying, I did not declassify this, now I can't, but it's still secret. It's still sensitive. Then the staffer says, "Now we have a problem." That's important because it shows that he didn't declassify it, and he has some sense that he's doing something wrong here.

I think it's also interesting that the audio clip, unlike the indictment, again, includes this bit of him joking around about how Hillary Clinton would have just sent this document everywhere. That mirrors a section in the indictment where Special Counsel Jack Smith says, Trump would routinely talk about the Clinton email scandal, mock Clinton for what he saw as mishandling classified information, and that's crucial because it shows that this is something that Trump said he took seriously. It's something that he said he knew was wrong. That's important because it shows he probably knew that he shouldn't have been holding on to these documents and passing them around like he appears to have done.

Brian Lehrer: In just a second, we're going to replay the last 30 seconds of the tape we just heard because that's really the most important part, as you just referred to. We're going to replay that and focus on that a little bit more. You referred to the staffer who does say on the tape, but it goes by so quickly and is kind of jokingly said in the background, "Now we have a problem." That's in that last 30 seconds too, I think, because he's saying that something is classified that he's showing these writers.

I was also struck, in the spirit of his casual ordering of Cokes at the end of the clip, that he and apparently, they all are giggling as he says the words highly confidential-- highly, yes, "Highly confidential secret." He says, "This is off the record. Highly confidential secret," and they go [mimics giggling]. I don't know if that adds any legal weight in court, but there's something there about the attitude with which he's approaching it and that the writers and his two staff members are apparently taking it with.

Quinta Jurecic: I think that's absolutely right. As you say, I don't think that necessarily carries any legal weight, but this is a case that's going to go to trial before a jury, and he's going to have to go before a jury and try to defend himself. In that sense, this just looks bad. There's a particular weight to, as you say, hearing that laughter, the kind of jokey atmosphere, hearing him say I could have declassified this and I didn't, that just may be really convincing in a way that just seeing it on a page doesn't quite communicate.

Brian Lehrer: Listeners, your comments or questions welcome on the Trump classified document tape or the larger context. 212-433-WNYC. 212-433-9692. You can also text a comment or a question to that number or tweet @BrianLehrer.

Okay, let me just replay those last 30 seconds of the tape, the most direct apparent admission of guilt. It's sometimes useful to hear something a second time. Here we go.

Donald Trump: This was done by the military and given to me. I think we can probably-- right?

Female Speaker 2: I don't know. We'll have to see. Yes, we'll have to try to figure out a [crosstalk]--

Donald Trump: Declassify it. See, as president, I could have declassified, now I can't, you know, but this is classified [crosstalk]--

Female Speaker 2: [chuckles] Yes, now we have a problem.

Donald Trump: Isn't that interesting? It's so cool. Look, we're here and I have-- and you probably almost didn't believe me, but now you believe me.

Female Speaker 2: No, I believed you.

Donald Trump: It's incredible, right? [crosstalk] Hey, bring some Cokes in, please.

Brian Lehrer: Again, you can hear in the background that staffer saying, "Now we have a problem." How do you think the government might use this tape in the trial if Trump is not accused in connection with the tape itself? Well, let me actually take a-- [crosstalk] Before I ask you that question that way, we should take a step back for our listeners-

Quinta Jurecic: Sure.

Brian Lehrer: -because it is a smoking gun to the lay ear, but interestingly, as I mentioned in the intro, he is not charged with that incident or regarding that document, as I understand it. [perplexed]

Quinta Jurecic: That's correct, and I agree that it does seem a little odd as we're discussing this. I think there are a couple of different reasons why he may not be charged in connection with this, and we just don't know. We can engage in some informed speculation, but I should caveat this by saying this is very much speculation.

There could be a couple things going on here. One is that I think it's important to note that there has been reporting by the press. I know The New York Times, I believe some other outlets as well have reported that the government has not actually been able to get ahold of the document that Trump is talking about here. That they subpoenaed Trump's counsel for it and came up empty. They said they didn't have it.

I could imagine that if the Special Counsel is trying to build the strongest case that he absolutely can, he might want to hold back a little bit until he can find out more information about what this document is, how sensitive it is, what particularly was in it, how it was handled by Trump, where it is, if Trump is hiding it. Because as we know from the indictment, there were a lot of documents that the government asked him to return and that he repeatedly refused to return and, in some cases, actually hid from the government. If they can build a case saying, "Look, here is this highly sensitive document. We have him on tape talking about it. He didn't return it," and can set out what happened there, that would be really powerful, but maybe they just feel they need more time to build that case.

Another aspect-- [crosstalk] Sorry, go ahead.

Brian Lehrer: Go ahead. No, "Another aspect," go ahead.

Quinta Jurecic: Another aspect has to do with where this took place. The indictment, of course, was brought in the Southern District of Florida because a lot of the activity that the Special Counsel is talking about has to do with things that took place at Trump's estate in Mar-a-Lago. This conversation about the Iran document took place at his other estate at Bedminster, New Jersey. Which I have to say is in my home state, so I have a bit of state pride there. [chuckles]

What's important is that there are constraints on where the government can bring a case. There has to be a hook to where the particular crime took place. They probably want to be very careful about that because they don't want to risk having the case thrown out if Trump can successfully convince the judge, "Look, they brought this case in the wrong district." It's conceivable, and I will say my colleague at Lawfare and Brookings, Scott Anderson, has written about this, that perhaps the Special Counsel might bring a second case in the District of New Jersey concerning the actions that took place at Bedminster, and we could imagine that that document might feature there.

Brian Lehrer: What about the tape itself and how it surfaced? CNN, as a news organization, is under no obligation to say how they got it. The Trump side is certainly saying that, aha, it's Jack Smith. It's the Special Counsel breaking the law by leaking a tape in a legal proceeding to the media to gain public relations advantage. Other people say, no, it probably wasn't Jack Smith because he's really locked down and other people had it, like those writers in the room had it, because this was not a clandestine tape. They all knew, including Trump, that this tape was being made at the time.

Is that your understanding?

Quinta Jurecic: As you say, we don't know very much about how this tape surfaced, and CNN, understandably, has not given a lot of detail because they want to protect their sources. What I will say is that Jack Smith is bound by rules of grand jury secrecy. Essentially, if you are part of the prosecution, if you are sitting on a grand jury and you leak material that is presented in a confidential setting in front of the grand jury, that is a crime, and you can and likely will be prosecuted.

I'm not saying it never happens, but the government takes that obligation very, very seriously. Most of the time that you see these kinds of stories reporting on things that could be known by either the prosecution or the defense, it is often from the defense because they don't have that same obligation of grand jury secrecy. They're not before the grand jury in the same way.

As you say, I think it makes sense to think about who else would have access to this tape. The Trump camp would have access to it. The reporters that he's talking to, the aides, would have access to it. We know that there has been some dissension among the ranks of the Trump legal team. There have been a couple incidents where people who were representing them have had to get lawyers themselves because of their own potential legal exposure. There have been disagreements among the team about the strategy and how to engage with the government.

While I don't want to come down firmly on one side or another, I will say that you can tell a story that would make sense for how this document could have come out of the people around Trump.

Brian Lehrer: And the writers. I mean, is that who was recording it? Is that much known? I haven't seen that in the reporting that I've read and heard. Was it the writers who were recording this tape because they were working with Mark Meadows on his memoir, and so this interview with Trump was for the book, and so it was all above board with Trump that this was being recorded, and he still did this even knowing he was being recorded?

Quinta Jurecic: As you say, this conversation took place while Trump was having a conversation with, I believe, a ghost writer who was putting together a book for Trump's former chief of staff, Mark Meadows. It is common practice when a person is talking to someone who's writing, a reporter, a journalist, that there will be a recording made and that everyone will know that that's the case and it will be above board. We, of course, don't know that that's the case here. It could have been surreptitiously recorded.

As you say, if this was recorded on the record and Trump was just casually waving this document around, that's pretty incredible because he's putting himself at a lot of legal risk there. He's saying, I could have declassified this, I didn't, and I'm showing it to you anyway, which is a pretty good statement of consciousness of guilt right there in terms of breaking the law.

Coming from anyone else, honestly, I would say that seems so unlikely, it can't possibly be the case, but we know that Trump just doesn't care about these kinds of legal restrictions and how they control his actions. We also know that he's said numerous times that he felt that these documents were his, that they belonged to him rather than the US government, and he didn't see anything wrong with holding on to them. In that sense, perhaps he just simply didn't understand or want to understand that this could create problems.

Brian Lehrer: This also proves, apparently, that Trump was lying about this document to the American people on TV last week. Here's a clip of what he said when asked about it by Fox News Anchor, Bret Baier.

Donald Trump: There was no document. That was a massive amount of papers and everything else talking about Iran and other things, and it may have been held up or may not, but that was not a document. I didn't have a document, per se. There was nothing to declassify. These were newspaper stories, magazine stories and articles.

Brian Lehrer: Yes, so he said there was no document and nothing classified. I mean, is there any way for even him to wriggle out of that being a lie to the American people on Fox News? He's the king of plausible deniability, but can even he even try to do that with this?

Quinta Jurecic: I'm sure he'll find a way, but I agree with you that it's pretty hard to figure out how he could possibly wiggle out of that one. It just seems to be a bald-faced lie.

Brian Lehrer: Since he's not charged in conjunction with this document, how do you think the government might use it in the trial?

Quinta Jurecic: I would guess that they're going to use it to establish that he knew that this was not something that was declassified. That if he tries to present that defense, they're going to say, "Look, you knew that this-- you could have declassified it and you didn't, and we have you saying that on tape. What's more, we have you talking about how you know it's wrong to share this information because you're mocking Hillary Clinton for doing so."

That I think is going to be a very important part of their case because proving that he violated the Espionage Act in retaining this classified information requires proving his state of mind. It requires proving that he knew that he was doing something wrong, that he was violating the law, that this material was material that was classified rather than, say, material that he had declassified or that he believed that he declassified. In that sense, it's a very powerful piece of evidence.

Brian Lehrer: Ivan in Burlington, Vermont, you're on WNYC with Quinta Jurecic from Lawfare, and the Brookings Institution, and The Atlantic. Hi, Ivan.

Ivan: Hi. Thank you for your wonderful coverage. I want to recommend to your listeners that they looked on YouTube for a clip of Kid Rock being interviewed by Tucker Carlson, in which he tells the story about Trump showing him maps and Kid Rock said, "Am I supposed to be in on this?" Kid said to Carlson. It's more proof of that behavior. He's a seven-year-old. [chuckles] Thank you.

Brian Lehrer: Thank you very much. Did you know about that moment? I didn't know Kid Rock was on Tucker Carlson.

Quinta Jurecic: I had heard about that actually, yes, and there's an anecdote that Kid Rock tells were Trump is asking him how to solve the North Korea problem. [chuckles] I think it's an amusing anecdote. It does indicate that Trump is perhaps discussing sensitive issues with people who are not cleared by the government to discuss them and who don't necessarily have expertise. I certainly wouldn't ask Kid Rock about how to deal with North Korea.

I don't think there's any indication that that incident is related to anything that's described in the indictment, but I think it does speak to this general casualness and, frankly, carelessness with sharing potentially sensitive information with people outside the government.

Brian Lehrer: Could the government use the Fox News tape in court, or does that matter only politically that he'd be caught by the public in a lie to them and doesn't matter legally?

Quinta Jurecic: I think what they would want to show is that Kid Rock wasn't just making that up. Because of course, you can't lie under oath to the government, that's a crime, but there's no law against lying on Fox News. In that sense, I agree that it certainly looks bad, but you'd want to make sure that you could confirm what was the map that Kid Rock says he was shown. Was it classified? When did this happen? Really lock down that he wasn't exaggerating, that kind of thing, and make sure that it can hold up in court.

Brian Lehrer: Yes, and I wasn't even thinking so much of the Kid Rock moment on Fox News as the Trump on Bret Baier moment that we played the clip of. He's so obviously lying to the American people, contradicting what he said to the writer on the tape, that, again, I don't know if that only matters politically, if it even does matter politically, or if it can matter legally in any way.

Quinta Jurecic: That's a good question. I'm not sure. I could certainly see-- I agree, politically, it definitely looks extremely bad. One thing to keep in mind is that the Special Counsel has been extremely careful in what kind of evidence they put forward. If you read this indictment, there is not a word out of place. They are very, very selective in what kind of material they put forward. They're also doing their best to make sure that this does not appear to be a political prosecution, that they're playing it really straight down the middle.

I could see, although I don't know, that there might be some anxiety on their part that you don't want to start bringing in off-the-cuff statements that Trump makes in appearances that relate to his 2024 campaign because you could be seen to be penalizing someone for their political speech. No, I agree that outright lying about the facts for what you're under indictment seems to be in a bit of a different category, but I wouldn't be surprised if they shied away from that.

Brian Lehrer: Given your blog's focus on national security, what are the implications of something like this for national security? Milley is still in office as Chairman of the Joint Chiefs, and now presumably, Iran has something that they didn't have before.

Quinta Jurecic: It's hard to say, of course, because the whole nature of this problem is that the public doesn't have access to these documents and shouldn't likely have access to many of these documents. These are materials that are held very, very close to the chest by the government. Without speaking directly to the question of this Iran material, I can say more generally that what the government sets out in its indictment is that, look, these are materials that were extremely, extremely sensitive that needed to be held close to the chest because they could reveal not only what the United States knows about Iran, Russia, various countries around the world, or information about sensitive US programs, for example, but also how the United States knows those things.

For example, if there's information there that the US gathered through a particular form of Intelligence collection on Iran, having that information out there wouldn't just tell Iran, they know what we're doing, but it would also tell them, oh, we can figure out that the US was able to track down this information through this channel, and that means that that channel could be closed off in the future. That's why there's a follow-on effect that builds on itself in the potential danger of having this material publicly available.

You see that this is something that the government takes incredibly seriously. That is why they're so concerned about this material being talked about at Bedminster, potentially within earshot of people who we don't know about and could be not people who are folks who you'd want to have access to this. That they were in a bathroom at Mar-a-Lago. They say the door was locked, but someone could have broken that lock. That's what is causing such concern from the government here.

Brian Lehrer: Right, and just to linger on that point for a minute, this is why this all really matters. It's not about Trump is this kind of a person, Trump is that kind of a person, Trump had some papers he shouldn't have. It's because there are real risks and potential risks to national security, to US Intelligence agents in the field who this could be traced back to or something else could be traced back to, whose lives might be in danger, or it might weaken us against Iran if we actually do ever have to go to war against them. All of that is why this really, really, really matters, right?

Quinta Jurecic: That's right. I think that that makes it harder for Trump to say this is-- well, it doesn't make it harder because he'll say anything, but it makes it a little harder for him to say, they're just going after me because they don't like me. That this is really tied very directly to a specific and potentially ongoing harm, and the government can say, look, this is a person who took things that didn't belong to him and, in doing so, endangered the security of the United States and the American people.

Brian Lehrer: Do we get, from this tape, any closer to why Trump took all these classified documents and hoarded them and refused to give them back even under subpoena? That's been a head-scratcher. Certainly, we see him kind of showing them off to be cool, like he's got this trophy, a classified document, because I was president of the United States. Is that it? Does this lead you to conclude that that was the centerpiece of his motivation?

Quinta Jurecic: It is pretty bewildering why he did this and why he put himself in such significant legal jeopardy for basically nothing. I do think that part of it is that he just thinks that these things are his and he deserves to have them. It is also true that he seems very concerned here in prosecuting a dispute with Mark Milley, the Chairman of the Joint Chiefs. He's really going after Milley. He's clearly quite angry with him. Perhaps he did this because he has a personal grudge, that this is just not a person he likes and he wants to get back at them. We know [crosstalk]--

Brian Lehrer: Well, there is the argument that Trump is having with Milley, the content of the argument there, about who threatened to go to war with Iran. Milley said, oh, Trump was so desperate to remain in Office after he lost the election that he was even considering attacking Iran, and Trump is trying to prove by showing this document that, no, it was Milley who drew up Iran war plans.

Is there an answer?

Quinta Jurecic: We don't really know. We do know-- There's a reporting in The New Yorker about the nature of this dispute that appears to be ongoing. Without knowing more about the document, it's hard to know the specifics, but the short version is that it appears that Milley and those around him were very concerned that Trump, as you say, might have tried to start a war with Iran as a way to hold on to power, get a rally around the flag effect. That it seems Trump is saying, look, they wanted a war with Iran too. This wasn't just me. It's hard to know.

I will say that there has been reporting that this document was not produced by Milley, despite what Trump is saying. That maybe suggests that this story is perhaps a little more complicated than whatever Trump is putting on the table there.

Brian Lehrer: Wait, we know that, that what Trump was showing these writers as a Milley document wasn't actually a Milley document?

Quinta Jurecic: Yes. I believe that CNN and The New York Times have reported that. Although, I don't know if they've reported who did actually produce the document. It could-- well, I believe it's something else within the military, but not Milley personally.

Brian Lehrer: Last thing, Quinta, you and I have been talking about evidence of Trump criminality since the Russia investigation. Yes, he was encouraging help from Russia, but Robert Mueller didn't find it in a way that could be charged, so in a way it didn't matter. Then the two impeachments on Ukraine and January 6th, impeached by the House, not convicted by the Senate, so in a way it never mattered. He's now been indicted on this and by the Manhattan DA on the falsifying business records charge. He's already been found liable by a jury for sexual assault of E. Jean Carroll and defaming her, and he's still the leading candidate by far in the Republican primary polls.

Looking at this whole body of cases, what does it matter to, and how do you even relate to doing something like this over and over again?

Quinta Jurecic: That's a great question and it's something I asked myself. It does feel a bit like Groundhog Day, frankly. I think that for me, I will say the point where we actually got criminal charges against Trump, in addition to, as you say, a civil judgment against him for sexual abuse of E. Jean Carroll, it feels like we're in a different part of the story now where he is actually facing legal accountability in the courtroom.

I don't think that that will solve our political problem. Certainly, there is a significant contingent of Americans who appear to be willing to back Trump basically no matter what he does. It does mean that we've shifted, I think, more to an environment where we can say, possibly, he can't get away with this with no consequences. That there are going to be some consequences that Americans, collectively, are going to have to think about whether we want this kind of person to be in Office, what kinds of responsibilities we want our former presidents to have, whether we want them to be subject to criminal prosecution. I would say that that's a positive development because of everything that we're seeing here.

In that sense, it feels to me like we have, at least to some extent, broken out of that kind of Groundhog Day cycle, and we're now in a bit of a new phase. I don't know where that phase will go or how it will end up. I think there are potential good or bad outcomes, but I do think that it is, generally speaking, a positive step; that we seem to have stepped at least a little bit out of that cycle and are moving somewhat forward.

Brian Lehrer: Quinta Jurecic, Senior Editor at the website Lawfare, which analyzes difficult national security choices. She's a Fellow in Governance at the Brookings Institution and a contributing writer to The Atlantic.

Quinta, thanks so much.

 

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