Trump’s Bizarre Behavior Poses a Big Problem for Mar-a-Lago Prosecutors

There’s a bizarre mystery at the heart of former President Donald Trump’s most serious criminal case to date: Why did he fight so hard to keep all those national security secrets, anyway?

All the more so, because he didn’t seem to get anything for his trouble except criminal charges that could send him to prison for years. 

It’s not just an idle head-scratcher. The lack of a clear explanation for Trump’s baffling behavior threatens to make life harder for federal prosecutors when they set out to convince a jury to find him guilty. 

Despite running a massive, unprecedented investigation that turned at least one of Trump’s own lawyers into a witness against him and uncovered an instantly iconic picture of secret documents piled up next to a toilet, Trump’s thinking about the affair remains confusing at best. 

Jurors generally want to understand defendants’ motives before declaring them guilty, experienced lawyers and former prosecutors say. Prosecutors don’t necessarily need to solve this riddle to prove all the legal elements in this case. But the lack of an obvious explanation for Trump’s conduct could be a problem. 

“The Achilles heel of the government’s case is that there is no clear motive,” said Gene Rossi, a federal former prosecutor in the Eastern District of Virginia with experience in national security matters. “Do they still have a case? Of course. But their case would be incredibly powerful, even overwhelming, if they could explain the why.” 

Special Counsel Jack Smith charged Trump with 37 felony counts this summer for allegedly stashing highly sensitive military and intelligence files in his Mar-a-Lago beachfront estate in Palm Beach, Florida, and then conniving to stop the government from getting them back. If Trump is convicted, he could face a roughly two-decade-long sentence, according to one recent analysis of the charges and sentencing guidelines. 

Trump pleaded not guilty at an arraignment in Miami in June, and has repeatedly denied all wrongdoing. 

The indictment does give a hint of a possible rationale for holding on to all those documents, however—one that was revealed in even more vivid detail this week when an audiotape cited by prosecutors leaked to CNN. 

On the recording, Trump can be heard discussing a secret war plan, which he says he did not declassify, and claiming that it “wins” his case against General Mark A. Milley. 

Trump seems to have been reacting to a then-recent article in The New Yorker, published in mid-2021, which recounted Milley’s efforts to make sure Trump didn’t launch a military attack on Iran near the end of his presidency in order to stay in power. 

In the recording, Trump seems to be saying that the document proves that the general was the real warmonger, not him. (In reality, the military regularly presents options to the White House, including many plans that are never used. The exact nature of the document remains unknown, but the existence of such a plan doesn’t prove that the general actually wanted to use it.) 

“Isn’t that amazing?,” Trump allegedly asked a roomful of people without security clearance, including a writer, a publisher, and a couple aides. “Totally proves my case.” 

The recording does hint at a motive for having the documents: Trump may have thought he could use them for leverage, even if he hadn’t been sure exactly what kind at the moment when they were taken from the White House to Mar-a-Lago.  

That’s also the view of Michale Cohen, Trump’s estranged former attorney and fixer, who has long argued that Trump’s primary motivation for taking the documents was to gain leverage and influence after his presidency. 

Cohen served by Trump’s side for years and had plenty of time to study his former boss’ ticks. After the FBI first searched Mar-a-Lago for documents last year, Cohen told VICE News that he believed the most likely explanation was that Trump probably wanted to be able to use the files as political and legal bargaining chips. 

“I believe Trump held on to these classified documents as a way to extort the country and to use them as leverage in the event he is to be indicted and convicted by the DOJ,” Cohen told VICE News last year.  

This week, Cohen reiterated that view, saying all the information that’s become public since then only “confirms my earlier suspicions.”

Yet prosecutors will need facts that can stand up in court to convince a jury. And so far, even in the recording cited by prosecutors, Trump is only discussing a single document of the many he allegedly pilfered. 

Some Trump critics have speculated, especially on Twitter, that Trump may have wanted to use the documents for financial gain — including, perhaps, by trying to sell them to a foreign power.  But prosecutors gave no indication in the charging document that they give any credence to those theories. And the idea remains, for now, mere guesswork. 

Instead, prosecutors will need to rely on facts they can prove in court.

And for the moment, that fact pattern remains faint, at best.