Trump Jury May Never Hear Bombshell Tape in Court

A newly-obtained bombshell tape that appears to show former President Donald Trump admitting to possessing "highly confidential" documents has been released to the public, but the audio clip might never be played in court.

On Monday night, the two-minute recording from a meeting at the former president's Bedminster, New Jersey, golf club in 2021—in which Trump was heard discussing keeping national security documents he did not declassify—was aired on CNN's "Anderson Cooper 360."

The recording is reportedly a key piece of evidence in Special Counsel Jack Smith's federal indictment of Trump, who was charged with 37 felony counts in relation to his mishandling of confidential records. Trump has pleaded not guilty to the charges.

But while the audio is important to the prosecutor's case against Trump, it might never be heard by the jury.

Can Prosecutors Play the Tape in Court?

The tape itself is admissible. Former federal prosecutor Neama Rahmani told Newsweek that evidence is admissible as long as it is relevant, authentic and does not violate the Rules of Evidence or the Constitution.

"Federal law generally requires one-party consent, so as long as the recording was not obtained unlawfully, and a witness can lay its foundation, it should be admissible even if a nonparty leaked it in violation of a protective order," Rahmani said.

But the recent publication of the audio could present Trump with a strategy to have it excluded from the trial, which is scheduled to begin in August.

Former Assistant United States Attorney Andrew Weissmann told Newsweek that there are two rules Trump's legal team will likely use to make their argument: rules 404b and 403. Under rule 404b, evidence of other crimes or wrongs are not admissible to prove a person's character, while evidence can be excluded under rule 403 if its value is substantially outweighed by the danger of unfair prejudice.

"The government has the better of the 404b argument which allows evidence of other crimes to prove motive, intent, opportunity and lack of mistake," Weissmann said. "The government should prevail on rule 403 which requires inclusion unless the unfair prejudice substantially outweighs the probative value."

But while prosecutors would have the upper hand if Trump moves to get the tape thrown out from the trial, Weissmann noted that Judge Aileen Cannon, the Trump appointee overseeing the case, has "more wiggle room" to side with Trump under rule 403.

Cannon has previously shown favor to Trump in Smith's investigation, granting him a special master to review the documents—a decision that was reversed by a conservative appeals court and has faced calls to recuse herself from the case.

On Monday, she denied the government's request to keep a list of witnesses secret, meaning that some or the entire list of 84 witnesses who Trump is barred from discussing the case with could be made public at some point.

What's On the Tape?

In the audio clip, Trump is heard saying, "These are the papers," while referring to something he called "highly confidential."

"This was done by the military and given to me," Trump is heard saying in the recording. "See, as president, I could have declassified it. Now I can't, you know, but this is still a secret."

The tape contradicts statements Trump made last week to Fox News, in which he denied ever showing secret documents to people at the Bedminster meeting, only "newspaper stories, magazine stories and articles".

"There was no document," the former president said.

After the tape's release, Trump accused Smith of working with the Justice Department and Federal Bureau of Investigation to leak and spin the audio.

"The Deranged Special Prosecutor, Jack Smith, working in conjunction with the DOJ & FBI, illegally leaked and 'spun' a tape and transcript of me which is actually an exoneration, rather than what they would have you believe," the former president wrote on Truth Social.