Kim Wehle writes for the Bulwark that, if reports of the recording are true, it could provide compelling evidence for special counsel Jack Smith, who took over two sprawling investigations of the former president; the handling of classified documents at Mar-a-Lago and Trump’s role in the Jan. 6 insurrection.
Smith in the Mar-a-Lago case will have to prove what in legal circles is called “mens rea,” which is Latin for proof of a guilty mind.
Wehle writes that “Smith’s team would have to prove in some fashion that Trump acted willfully, knowingly, or intentionally and not just out of hubris, ignorance, or neglect in taking the materials and then repeatedly blowing off the FBI. In general, prosecutors can prove mens rea using circumstantial evidence, which relies on inferences. But direct evidence is better.”
Wehle notes the typical example of indirect evidence would be determining whether it had been raining through inference.
“The Bedminster audio recording, if authentic, is of the direct kind—it presumably reflects Trump’s own words in his own voice expressing his knowledge or belief that he possessed classified information, that he isn’t supposed to share it, and that he does not have the authority anymore to declassify it,” Wehle writes.
“Coupled with his preposterous public talking point that ‘If you’re the president of the United States, you can declassify just by saying ‘it’s declassified,’ even by thinking about it,’ the audiotaped meeting suggests that Trump knew he had stuff that he had no legal authority to have.”
Wehle believes the audio may provide the “mens rea.”
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“Given how cavalier Trump is about saying the quiet stuff out loud (his town hall attacks on E. Jean Carroll after her $5 million jury verdict produced a request for even more punitive damages), it would be surprising if, Lordy, there aren’t more tapes out there,” Wehle writes.
“So far, the Mar-a-Lago scandal hasn’t weakened Trump’s hold on the GOP base. But as Carroll’s case showed, juries are different. Assuming the reports about this audio recording are accurate, it seems ever more likely that Trump will be held to account, and the American public will have its day in court.”
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