In a presidency chock-full of peculiarity, it ranked near the top of the list. It was Donald Trump’s relationship with North Korean leader Kim Jong Un, whom Trump once threatened with “fire and fury,” but with whom he later forged a relationship he lightheartedly compared to a “love” affair.
But there is increasing evidence that Trump’s pride in his correspondence with Kim could cost him legally, experts say.
Not only were Trump’s letters with Kim apparently so treasured that he opted to show them off and took them with him when he left the White House — along with other highly sensitive government documents — but, now, The Washington Post reports that Trump in late 2019 and early 2020 appeared to acknowledge that these letters were indeed highly sensitive government documents.
Ashley Parker reports on the new Trump interview tapes that The Post’s Bob Woodward is releasing as an audiobook:
As Parker notes, this is Trump acknowledging the documents’ sensitivity in his own words.
And it’s actually not the first time. Back in 2019, Trump showed reporters from Time magazine a letter from Kim, but when a photographer tried to snap a photograph, he was told he couldn’t and threatened with prison. “Well, you can go to prison, instead, because if you use, if you use the photograph you took of the letter that I gave you …” Trump said, without finishing his thought. (Trump didn’t explicitly cite the letter’s classification status.)
But what might that actually mean for the burgeoning Mar-a-Lago documents investigation and Trump’s potential legal liability?
There has been evidence that Trump might have been well aware of what he had in his possession, even as he resisted returning documents when the National Archives and Records Administration and the Justice Department came calling. The Post has reported that when Trump returned some of the documents in January, he personally oversaw the packing of the boxes “and did so with great secrecy, declining to show some items even to top aides.” The documents had also been requested many months before, meaning there was ample opportunity to do an inventory.
What the new interview tapes add is Trump’s saying, in his own words, that these kinds of documents were “so top secret.” That’s not just saying Trump must have known what he had; that’s him talking about specific documents and how sensitive they were — before taking them anyway.
From there, it’s worth going over the specifics and the timeline.
The first thing to note is that these conversations occurred during Trump’s tenure as president. Trump has claimed (at least publicly) that he declassified the documents. The implication is that even if the documents were classified when he spoke with Woodward, they weren’t classified when he took them. (There remains no evidence that Trump actually declassified these or any other documents, of course, and his lawyers have conspicuously avoided echoing their client’s public claims.)
Former federal prosecutor Brandon Van Grack said the timing of the conversations means the new evidence isn’t definitive.
“I think most conversations that predate inauguration are going to have a limit to their value,” he said, “because it doesn’t answer the question as to whether the document was declassified.”
David Priess, a former CIA officer and expert on classified documents who once delivered the president’s daily brief, said Trump could also potentially claim that he was using “top secret” in a colloquial rather than technical sense.
“But that is weak compared with the growing circumstantial evidence that he knew exactly what he had,” Priess added.
But that’s also less pertinent when it comes to the crimes the government has said it’s investigating, which generally pertain to obstruction of justice and retaining sensitive — though not necessarily classified — documents. And that’s where experts say this new development could be troublesome for Trump.
The subpoena that the government issued in May for documents didn’t request only classified documents, but any documents with “classification markings.” So whether the documents were declassified is a bit of a red herring.
“It appears to be further confirmation that there was material at Mar-a-Lago that was highly sensitive,” Van Grack said. “And whether or not there was a declassification order doesn’t change the fact that the information was highly sensitive.”
Ashley Deeks, a former deputy legal adviser to the National Security Council who teaches at the University of Virginia law school, said the Woodward revelation “clearly seems to help the government” when it comes to one specific crime. That crime: “willfully” retaining information that could damage national security and failing “to deliver it to the officer or employee of the United States entitled to receive it.”
“Under the statute, the government has to prove that the person possessing information related to the national defense has ‘reason to believe’ that the information ‘could be used to the injury of the United States or to the advantage of any foreign nation,’ ” Deeks said.
Deeks added: “The government, I suppose, will have to prove the connection between knowing that information shouldn’t be widely disclosed and knowing that the information could be used to harm the United States or help another government.”
Apart from Trump’s apparently having knowledge of the sensitivity of the information he took, there’s the matter of when he returned these specific documents he knew were so sensitive.
We recently learned, thanks to yet another new Trump interview tape, that Trump suggested to the New York Times’s Maggie Haberman in September 2021 that he had not, in fact, taken the Kim letters when he left the White House.
“No, I think that has the … I think that’s in the Archives, but most of it is in the Archives,” Trump said. He added that he had taken “nothing of great urgency, no.”
Yet, as of May 2021, the government had specifically cited the Kim letters among the materials that hadn’t been returned. The National Archives told Trump’s legal team that it was “essential that these original records be transferred to NARA as soon as possible.” By June 2021, the Archives instructed a Trump adviser who was handling the matter to return the letters by FedEx overnight shipping, CNN has reported.
Trump did return the letters in January 2022, when the Archives retrieved 15 boxes from Mar-a-Lago. That’s the first known instance of documents being returned to the government, and it predated the Justice Department’s apparent involvement. But it also came eight months after the National Archives specifically requested those documents in May 2021 — a reflection of Trump’s resistance to complying.
So the timeline would appear to indicate Trump would have been aware that he had these specific documents, in addition to his being aware that they were highly sensitive, by his own newly revealed declaration.
Added Deeks, of the statute she cited: “It defies belief to think that a person could recognize that certain information was top secret and yet not realize that the information, if revealed, could be used to harm the United States.”