New Trump Audio Raises Four Questions, Alan Dershowitz Urges

The newly released audio of Donald Trump discussing classified documents raises a handful of new questions, according to his one-time lawyer Alan Dershowitz.

Former President Trump is currently facing a litany of federal criminal charges stemming from his alleged mishandling of classified documents at Mar-a-Lago and his attempts to retain them in spite of requests from the National Archives. Among the documents he retained after leaving office, according to the unsealed indictment from special counsel Jack Smith, were files containing highly sensitive information about the United States's defense apparatus and nuclear capabilities, and those of foreign countries.

One of the key pieces of evidence to emerge in the case was an audio recording from the summer of 2021 in which Trump discusses one such document, admitting that it is classified but continuing to show it to someone nevertheless. The tape was obtained by CNN and released on Tuesday, revealing the full scope of the conversation, which some observers have called legally damning for Trump's defense in the documents case.

Four Questions Raised By Trump's Audio File

Dershowitz, a lawyer who represented Trump during his first impeachment trial in 2020, wrote about the audio recording on his official Substack, raising a handful of questions about the clip and what it might pertain.

Firstly, he wondered who might have been responsible for leaking the clip to CNN, given that it is part of an ongoing criminal investigation and prosecution.

"If prosecutors leaked it, that would almost certainly constitute a crime or at the very least a violation of Justice Department rules," Dershowitz wrote. "If the Trump defense leaked it without Mr. Trump's permission, that too would raise serious legal and ethical questions."

Secondly, he wondered how the former president's legal team might be able to offer a defense to the recording, which he called a "smoking gun" for the prosecution that blew holes in many of the defenses Trump has tried to make in the case.

"Mr. Trump has claimed in an interview that what he showed the writer and publisher were not classified documents but rather newspaper and magazine reports on the issue," Dershowitz continued. "Listening to the recording, however, suggests that Mr. Trump showed them a document that he said was secret and that he could have declassified, but did not, while he was president. It is likely, therefore, that the prosecution will be able to prove at trial that Mr. Trump showed the writer and publisher material that he believed was still classified."

Dershowitz then raised the possibility that the document Trump was allegedly showing had already lost its classified status somehow, despite him mentioning on the tape that he believed it to be classified. If that were the case, he questioned if the prosecution could still bring charges against Trump for sharing a declassified document while wrongly believing it to be classified. Determining the answer to this could prove difficult, as the document at the heart of the tape has reportedly gone missing.

Finally, Dershowitz questioned which side would have the burden of proving that the document had been declassified.

"Would the government have to prove beyond a reasonable doubt that the contents of the documents had not been publicly disclosed and thus effectively declassified?" the lawyer wrote. "Or would the defense have to offer proof of prior publication? This, too, is a complex and difficult question."

Newsweek reached out to Trump's press team via email.