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Nearly 10 months after the FBI recovered more than 100 classified documents from Donald Trump’s Mar-a-Lago resort, there have been no federal charges against the former president, but we’re learning more about what the special counsel is looking at.
The 2021 audio tape of Trump acknowledging he held onto a classified Pentagon document about a potential attack on Iran, which CNN reported exclusively on Wednesday, is a key example. The recording – which also captures the sound of paper rustling, several sources told CNN – undermines all the arguments from Trump about his retention of classified documents after leaving the White House. (Trump, who has denied all wrongdoing, said in a Fox News town hall on Thursday that he didn’t “know anything about” the meeting that CNN has reported is on the tape.)
I talked to CNN’s Senior Crime and Justice Reporter Katelyn Polantz, part of the reporting team that uncovered the existence of the 2021 recording, about why these new developments are so important and why the federal investigation is taking so long.
The main takeaway for me: prosecutors must determine if classified information meets a sort of Goldilocks test. In other words, it must be clearly secret enough to convince a jury that sharing it jeopardized national security, but not so secret that the government cannot allow a jury to hear about it.
It’s not clear where a war plan for attacking Iran would fall.
Excerpts of our conversation, conducted at my desk in CNN’s Washington bureau on Thursday, are below.
What do we think this tape means?
WOLF: How do these developments – and the existence of the audio tape we’ve heard about but not heard – affect Trump’s larger legal issues?
POLANTZ: First of all, it’s an audio tape that the Justice Department has, which is a big deal on its own because an audio tape is evidence. And from all of the former prosecutors we’ve talked to, this is the type of evidence that would be admissible in court – that was legally recorded.
We don’t know what the actual words on the tape are and what you can hear Trump saying, but the way it’s been described to us is that it is abundantly clear that it captures Trump’s knowledge that he:
- has classified information in his possession still, where it should not be, outside of the hands of federal government,
- and also is willfully keeping it, which is a really important element when you’re looking at a criminal case.
So that’s all very significant. Whether or not it’s declassified – his team spends a lot of time focusing on that, whether he had this ability to declassify – that’s actually not what the law is about.
This case is not exactly about classified information
WOLF: It’s not?
POLANTZ: The law is about protecting national defense information. It can be classified, it doesn’t have to be. It is about criminalizing (the information) being kept outside of a protected area, even by somebody who is allowed to have classified information. Somebody with a clearance. This is Trump having it outside the protected area. He’s talking about the information in the document. He’s referring to the document as if it’s right there before him. You can hear what could be the document rustling on the tape. … What he’s acknowledging sounds like, from what we understand, it could very much be something that meets all of the things a prosecutor would look at to tick a box to say this is legally viable as we’re building a case on the mishandling of a record.
The timeframe is now expanded
POLANTZ: The other thing I would say about the substantial nature of this development in this investigation is that we have focused so much on what happened after the Justice Department subpoenaed all the classified documents back from Trump in May of 2022. And there’s the search of this storage room –
WOLF: Almost a year ago now.
POLANTZ: Right. … All of the discussion has been about how Trump and others may have handled documents after knowing there’s a criminal investigation that exists. We know there’s an obstruction of justice investigation around that. A key thing in an obstruction of justice investigation is knowing that there’s a proceeding that you could potentially be obstructing, like a criminal investigation.
But we had not spent a lot of time thinking about what happened to these documents before that moment in time when the criminal investigation begins in January of 2022. … And so that period of time – 2021 – it’s clearly something the Justice Department cares about because they’re gathering evidence about this. They have the tape. That’s an earlier timeframe and opens up the possibility that Trump may have had multiple times where he was talking about classified information he had.
It’s important this recording was made in New Jersey
POLANTZ: This also expands our understanding that this isn’t just about Mar-a-Lago. This tape is from Bedminster, in New Jersey. And Trump traveled back and forth from Mar-a-Lago to Bedminster over the course of these two years, 2021 and 2022. And ultimately, there were documents found in a couple of different places. There were documents that moved because things were traveling with him. We know that from the reporting we’ve had. This just changes our framework of understanding that this isn’t just a Florida situation.
WOLF: But it might also be expected because he’s always spent the winter at Mar-a-Lago and the summer in Bedminster.
POLANTZ: Totally. The thing that is different is that it creates a situation where it’s not just a bunch of boxes that people haphazardly threw stuff into without looking at and then just got dragged around down to Mar-a-Lago when he went there and then maybe moved to Bedminster.
This appears to indicate Trump knew he had documents with him at Bedminster and that the investigation certainly is not just about what happened at Mar-a-Lago.
What do we know about how or when the special counsel got the recording?
WOLF: The special counsel has the recording. Do we know when his team got it? Is this an evolving thing that they’ve just gotten or is it something they’ve had for a while?
POLANTZ: We’re still trying to learn more details about that, but we do know that a key moment in this part of the investigation happens in mid March of this year. That is when one of the aides to Donald Trump, Margo Martin, who was in this meeting at Bedminster, makes a grand jury appearance in Washington, DC. We saw her and we reported it when she went in. Our understanding is that at some point after that, the Trump legal team begins to understand that this tape is in the hands of the Justice Department. But it’s entirely possible they knew about it before then…
Trump was a person who frequently had his interviews with journalists, authors recorded on his own behalf. We know that because he sued Bob Woodward for publishing tapes Woodward made when he was working on a book during Trump’s presidency. His lawsuit disclosed that he was always trying to take his own recordings when he talks to journalists.
Could a Trump trial on mishandling documents be conducted before the election?
WOLF: I’m interested in the timing because – 2021, he leaves office and he has this taped conversation; 2022, a year later, is when the FBI retrieves classified documents; 2023, where we are right now, and it’s the beginning of the primary season. There have been no charges. Next year, 2024, is the presidential election. Is it possible that even if there were charges, they could be litigated before voters are asked to make a decision about returning Trump to the White House?
POLANTZ: It could be. Courts can move very slowly. Courts can also move very fast. I think it’s really hard to predict timing of how long a case would play out. I think the thing that is important about this story, and one of the things that makes this so different from the other Trump investigations that have been ongoing, is that there’s a component of it about the security of the country.
What we know, based on our reporting, is that there’s a moment where Trump is caught on tape, in his own words, apparently acting pretty cavalier with this document.
There is a Goldilocks test for bringing a classified information case
POLANTZ: These cases take time not because it takes time to run down the evidence, but because they have to go through a process to determine, are these state secrets that we want to use in a case?
Are they the sort of thing that national security prosecutors call Goldilocks documents? The type of documents that are so secretive that it’s clear to a jury that they would harm the country if they had gotten out. That’s the sort of document that would make a chargeable case for a mishandling records case. But also, it has to be something that’s not so secret that you could never bring it into court.
How does information like this get reported?
WOLF: How does it happen that we get little tidbits from what’s going on inside this investigation? How is a story like this built?
POLANTZ: I will say this was not a story that landed in our laps fully formed. We had to try to talk to lots and lots of people to get the story and get it correct. There were little hints of it out there already. There were hints in other reports. And then our own reporters had heard that investigators were asking about (Chairman of the Joint Chiefs of Staff Gen.) Mark Milley; investigators were asking about documents related to Iran. It took a while to actually figure out what it was.
On top of that, it took me a long time to realize it is an audio tape. A lot of that is piecing together the puzzle in your own mind and building relationships with many, many sources who can fill in the gaps if you need them to. … I’m sure everyone has agendas for their own reasons. And I know that people have agendas, both political and legal. But at the end of the day, I think that there are certain stories that people recognize, this is so important that people should probably know about this.
How will the special counsel finish his investigations?
WOLF: This is only one prong of what the special counsel is looking at. Do you have any sense of when he finally finishes his work, if he does so before voters are voting, will there be a report like the one on the Russia investigation or will he announce charges? What will the end of this look like?
POLANTZ: That’s really hard to predict, but there will be a report. That’s part of the regulations of how a special counsel’s office functions. They do produce a report to the attorney general that can be provided to Congress. But they also have the ability as a special counsel’s office to investigate and charge crimes that they decide they want to charge. The recent history of the Mueller investigation and the Durham investigation, which are the other two previous special counsels, is that they can bring several cases. They can charge cases through the entirety of their existence and then the report is the last thing they finalize. It’s quite plausible that if there is a chargeable case here, there will be charging decisions made. It would be charged and brought in court and we would learn details there. And then at the end of it, when the special counsel’s office is ready to close shop, they produce their report.
Rule of thumb: a trial could take a year
WOLF: There’s a policy that the Justice Department won’t bring cases a certain amount of time before an election in order to avoid influencing them.
POLANTZ: It’s a pretty short time. Like 60 days. … They have plenty of time to charge. And once it’s in court, it gets very controlled. You see the indictment and then they set the timeline and they move toward that timeline. It’s very structured, what they have to do in court to litigate a case. One year is a good rule of thumb for this federal court, from charge to trial. But a lot of things can happen. And you know, there’s also this additional issue of the constitutional protections around the presidency, which can also prompt other stuff in court that could slow things down.