Former US President Donald Trump faces legal jeopardy – not least in a criminal case involving confidential government documents – even as he fights to contest the 2024 presidential election.

The voice on a recently revealed audio recording in the US is unmistakably that of former President Donald Trump. ‘This is like highly confidential, secret’, Trump is heard saying about a classified document he was showing to two people at his golf club in Bedminster, New Jersey.

In the July 2021 recording, referenced by US prosecutors in a 44-page indictment of the former president, Trump is describing a Pentagon document laying out potential US war plans against Iran. ‘This is secret information’, Trump says. ‘This was done by the military and given to me.’ Amid the sounds of shuffling papers and exclamations from the people he’s talking to, Trump continues: ‘As president I could have declassified it. Now I can’t, you know, but this is still classified.’

What’s remarkable about the exchange, first broadcast in June, is that it appears to show Trump in possession of – and sharing – a Pentagon war plan six months after he left office. On the recording, Trump acknowledges that the document was secret and that, as former president, he no longer had the authority to make it public.

Trump has railed against the recording, referring to the ‘continuing witch hunt’ against him and alleging on social media that independent prosecutor Special Counsel Jack Smith, who is pursuing the charges on behalf of the Department of Justice (DoJ), is ‘working in conjunction with the DOJ & FBI [Federal Bureau of Investigation], illegally leaked and “spun” a tape and transcript of me which is actually an exoneration’.

If presented at trial, the recording would be likely to take away any defence Trump might have that he didn’t know what he had in his possession, or that he didn’t understand the rules governing classified material.

Trump has been charged in the US District Court for the Southern District of Florida with 31 felony counts of mishandling confidential government documents he took when he left the White House in 2021. He’s also been charged with six counts ranging from conspiracy to obstruct justice, to concealment of records, and making false claims.

Trump appears to have kept hundreds of classified documents along with other presidential papers in dozens of cardboard boxes in various places at his Mar-a-Lago social club. When authorities sought their return, prosecutors say Trump instructed aides to move the boxes around and misled his own lawyers and the FBI about what he was keeping. Court filings cite a voluminous trail of closed-circuit video, emails, text messages and witness testimony. Trump has pleaded not guilty.

Law versus politics

Unprecedented and serious, the Mar-a-Lago documents case is but one of several trials that will soon collide with upcoming Republican presidential primary elections, in which Trump is a frontrunner. Voting begins in January 2024 in the Iowa caucus and New Hampshire’s first-in-the-nation primary election. Nevada and South Carolina hold early primaries in February and a crucial ‘Super Tuesday’ election in 14 states takes place on 5 March.

Simultaneously, Trump is set to go to trial in New York on 2 October on civil fraud charges related to alleged false asset valuations in the Trump Organization’s real estate business. Again, Trump refers to the case as a ‘witch hunt’. The former president also faces a criminal trial in New York in March 2024 on charges related to alleged hush money payments made during his 2016 campaign to adult film star Stormy Daniels. Trump has denied any relationship with Daniels and disavowed knowledge of the hush money scheme.

Trump faces additional charges related to his efforts to reverse President Joe Biden’s popular election in 2020. Prosecutors have been investigating Trump’s role in a so-called ‘fake electors’ scheme designed to flip Congress’ ratification of the 2020 election from Biden to Trump. Special Counsel Jack Smith brought an indictment against Trump on 1 August, charging the former president in Washington, DC, with criminal conspiracy to defraud the US and obstruct Congress on 6 January 2021; Trump has pleaded not guilty to these charges. The alleged scheme to present fake delegates for Trump to the US Electoral College from states Biden had won was tied to the 6 January protest and riot at the US Capitol. Additional charges from the state of Georgia are also expected. Trump’s campaign has issued a statement, calling the allegations ‘fake charges’ and suggesting they represent ‘election interference’.

It’s an open question whether the Mar-a-Lago case will be tried in time for US voters to be informed of the former president’s guilt or innocence. Special Counsel Smith had asked for a 11 December start date. Trump’s lawyers requested an indefinite delay, citing complexities of handling classified evidence and the difficulty of seating an impartial jury during a presidential campaign. The judge in the case split the difference and set 20 May 2024 as the trial start date, a time that falls after the Republican presidential nominating contest but before the campaign for the general election that November moves into full gear.
 

Trump the frontrunner

So far, the criminal indictments against Trump appear to be helping him politically. Trump leads his primary rivals in polling, with support from 52 per cent of Republican voters, according to multiple surveys compiled by the website FiveThirtyEight.com. Trump has used the indictments to raise funds towards his candidacy and has hauled in $35m in the second quarter ending 30 June, according to his campaign. After Trump was arraigned in Miami on the Mar-a-Lago charges, he flew to New Jersey to appear at a fundraiser at his Bedminster golf club. In the first quarter, he raised $18.8m even as he was being criminally charged in New York in the hush money scheme.

‘They can indict me, they can arrest me, but I know – and the American people know – that I am an innocent man’, Trump claimed in a late June fundraising email. ‘2024 is no longer just about an election. It’s about whether America will still even have elections – or if the president will be picked by unelected bureaucrats through a weaponized legal system.’ (Emphasis in italics is Trump’s own.)

Florida Governor Ron DeSantis and the former Governor of South Carolina, Nikki Haley, who have publicly defended Trump against his legal troubles and are also contending in the primaries, argue it’s too soon to draw conclusions about how people will vote. Trump’s former Vice-President Mike Pence, who is also in the running, has meanwhile cautiously allowed distance between himself and the former president.

Trump’s lawyers have made the claim that his prosecution is being ‘advanced by the administration of a sitting president against his chief political rival’. But Trump is being prosecuted by an independent prosecutor under DoJ special counsel procedures designed to insulate the case from politics.

Trump’s prosecution is more accurately understood as a conflict between the powerful US intelligence community and a former customer – the ex-president – over control of secret information. And while some voters now see the charges against Trump as partisan attacks by Democrats, the dynamics are expected to change in the coming months as primary debates begin and the focus realigns onto candidates and policy differences.

Focus on the judge

One factor weighing in the former president’s advantage in the Mar-a-Lago documents case is US District Judge Aileen Cannon. She was appointed by Trump in 2020 and has previously ruled in his favour. After the FBI searched Mar-a-Lago in August 2022, Judge Cannon blocked prosecutors from looking at seized documents pending a review by a special master. In September, a three-judge panel of the US Court of Appeals for the 11th Circuit reversed her decision, ruling Trump had no ‘possessory interest’ in any classified materials and opining that Cannon had probably ‘abused’ her discretion.

A former corporate lawyer and federal prosecutor in Florida, Cannon was assigned by random selection to preside over the documents case. Some legal commentators have called for her recusal. Her rulings will be closely scrutinised for objectivity.

Cannon has issued two early decisions in the case, neither of major consequence. She delayed a conference among the parties to discuss requirements for handling evidence under the US Classified Information Procedures Act, a law designed to protect US secrets from being publicly disclosed at trial, for four days. Cannon also denied a request by the Special Prosecutor to file a list under seal of 84 potential witnesses in the case. Trump had been admonished by the presiding magistrate at his arraignment not to talk to his co-defendant – Waltine ‘Walt’ Nauta – or other witnesses in the case.

Walt Nauta, a former Navy cook who had been assigned to the White House Navy mess since 2012, was elevated by Trump to serve as his military valet during his presidency. After Trump left the White House, Nauta retired from the Navy and followed the former president to Mar-a-Lago where he has served as a butler and ‘body man’ on the campaign trail.

Nauta was named in Trump’s indictment as a co-conspirator on five counts of concealing or withholding documents and obstructing justice. He is accused of moving boxes of documents at Trump’s direction and lying about it to the FBI. Newly unredacted details of the FBI’s affidavit seeking a search warrant for Mar-a-Lago revealed the FBI had video footage of Nauta moving boxes between rooms, leading law enforcement to suspect Trump was hiding documents. Nauta is seen as a loyal, trusted aide to Trump, and the former president’s political organisation is paying his legal fees. Nauta has pleaded not guilty.

William Roberts is a US-based freelance journalist and can be contacted at wroberts3@me.com

Image credit: Former US President Donald Trump departs the Wilkie D. Ferguson Jr. United States Courthouse, following his arraignment on classified document charges, in Miami, Florida, US, 13 June 2023. REUTERS/Marco Bello