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Jack Smith having Donald Trump on tape is good evidence. But it may not be enough.

In criminal trials, not all audio recordings are created equal. Some provide clear and convincing evidence against a defendant. Others may be muffled and ambiguous.
Photo Illustration: An extreme close-up image of Donald Trump's open mouth next to sound waves
Special counsel Jack Smith reportedly has an audio recording of former President Donald Trump describing a classified document he kept at his Florida home, Mar-a-Lago.MSNBC / Getty Images

We learned last week that prosecutors investigating former President Donald Trump’s handling of classified documents have obtained a July 2021 voice recording of Trump reportedly describing a classified document he kept at his Florida home, Mar-a-Lago.  (News that federal officials had obtained the audio recording was first reported by CNN. NBC News has not heard the recording.) The reports generated a great deal of excitement among those waiting to see if federal charges will be brought against the former president. 

Some believe that the tape makes the case for the special counsel. But does it?

The voice recording was created by Trump’s own assistant during an interview of Trump by aides to his former chief of staff Mark Meadows, who was writing a book. On the recording, Trump reportedly talked about a document in his possession — believed to be a memo by Gen. Mark Milley about U.S.'s options to take military action against Iran — that Trump described as still classified. This admission, if true, would contradict Trump’s prior assertions that documents he removed from the White House were, by definition, no longer classified.  

Some believe that the tape makes the case for the special counsel Jack Smith. But does it?

It is true that the existence of a voice recording can be devastating for a defendant. In March, jurors took only three hours to convict South Carolina attorney Alex Murdaugh of murdering his wife and son. Murdaugh’s defense had fallen apart when investigators discovered his voice on his murdered son’s cellphone recording at the crime scene shortly before the murders, contradicting Murdaugh’s alibi. And Trump’s fate in the Fulton County, Georgia, district attorney’s criminal investigation regarding potential election interference revolves largely around the recording of his telephone call urging Georgia Secretary of State Brad Raffensperger to “find 11,780 votes.”

A voice recording of a target of a criminal investigation can be powerful evidence because, unlike witness testimony, a recording is unchangeable and can be played over and over in a courtroom. Emails and text messages can be helpful to a prosecutor’s case, but voice recordings allow jurors to also assess a defendant’s tone, such as enthusiasm, reluctance or assertiveness. And under the rules of evidence, a defendant’s own prior statements are admissible at trial even if he elects not to testify in his own defense. 

But not all recordings are created equal. Prosecutors know that the quality of a voice recording can depend on whether it is a telephone wiretap, an audio or video recording, a surreptitious voice recording in a private office or a hidden microphone in a noisy restaurant. What can be derived from those sources of evidence can make the difference between a conviction and an acquittal.

Take the tape recordings that provided irrefutable evidence that then-President Nixon approved a cover-up of the Watergate break-in, ultimately forcing him to resign his presidency in 1974. The Oval Office recording conditions were ideal, featuring a high-quality voice-activated recording system installed in a fixed location and calibrated to pick up all voices in the relative quiet of an office setting.

For similar reasons, the best voice evidence often comes from recorded telephone calls. Why? Because on a two-way call, there are only two speakers, and ambient noise is usually minimal. On phone calls the speakers cannot see each other’s facial expressions or lip movements, so they tend to speak more clearly. In the days before cellphones, wiretaps on landline phones consistently yielded excellent evidence.

Even settings conducive to recording can produce tapes that aren’t good evidence.

But recording quality degrades in less controlled environments. Try to secretly record a conversation using a hidden microphone in a restaurant, and you’re likely to get a cacophony of background music, parts of conversations from neighboring tables and the inevitable clinking of silverware and dishes, all mixed in with garbled sentences from a speaker chewing lunch. Other venues can be equally frustrating. Imagine, for example, trying to convict a defendant based on tapes on which half of everything said is drowned out by noisy buses driving by an open window.

Even settings conducive to recording can produce tapes that aren’t good evidence if it’s not clear who is speaking, or people are mumbling or talking over each other. (Picture narcotics prosecutors trying to discern whether a drug dealer is saying, “That guy who’s Colombian” or “That guy who’s coming in.”) Former Trump lawyer Michael Cohen, who is now cooperating with Manhattan District Attorney Alvin Bragg, produced a 2016 tape in which he claims Trump suggested cash be paid to a media company for the rights to a woman’s story about an alleged affair with Trump. But the speakers repeatedly talk over one another, and the tape ends abruptly after some confusing half-sentences. Cohen is heard to say, “we’ll have to pay;” Trump says, “Pay with cash,” at which point Cohen interrupts and says “No, no….” The context of the exchange is far from clear, and its meaning is hotly contested by different parties.

In the classified documents case, of course, there are reasons to believe that Smith has a relatively high-quality recording of what Trump said. The recording was not surreptitious, which means the microphone was likely placed in a good position to pick up Trump’s words clearly. Trump’s golf resort in New Jersey, where the conversation took place, was probably quiet. But keep in mind that an audio recording is not an Academy Award-winning documentary; there is no video, and Trump’s team has not yet located the classified document Trump reportedly claimed to have in his possession. If this audio tape is going to help prove Trump’s criminal intent to remove and retain classified documents, Smith will have to convince a jury that Trump truly believed the document was still classified — and wasn't simply trying to impress his audience by waving around a document he claimed was classified. 

With a potential target like Donald Trump, who has always been willing to assert falsehoods to elicit cheers, the biggest question may be when the former president is telling the truth and when he isn’t. To figure that out, Smith will likely need more evidence than just this recording can provide.