An Inadvertent Release

Judge Aileen Cannon forbade it. There would be no release of Volume II of Special Counsel Jack Smith’s report, the part that dealt with the discovery that Donald Trump kept classified documents, some at the Top Secret/SCI level, when he left the White House. When Smith testified before Congress, he carefully tailored his responses to avoid violating the court’s order.

But not so much the Trump White House. In what appears to be a sloppy but serious error, the administration released a document to Congress that MSNOW’s Carol Leonnig and Jacqueline Alemany reported on yesterday. They write, “In a January 2023 'progress memo' reviewed by MS NOW, Smith’s office discussed the possible motive after the FBI discovered that Trump held on to many documents related to his businesses.” Although the document isn’t publicly available, it sounds like the sort of reports agents and/or prosecutors might prepare for supervisors. This one contains some fascinating details.

The document was released as part of a regular document production DOJ has been making to Congress in support of the Republican inquiry into Smith. House Judiciary Democrats put it like this: “This particular production contained a memorandum detailing non-public information about the classified documents Trump stole when leaving office. The newly produced materials offer a startling view of evidence gathered by Special Counsel Jack Smith during his investigations into the criminal activity of President Trump, even as DOJ continues to suppress Volume II of his final report.”

First, is the hint at motive. Why did Trump do something so obviously criminal, and not do it particularly well? Why did he lie to DOJ officials when asked to return classified material they had learned was still in his possession? What was so important to the former president?

Motive is not an element of the crimes Trump was ultimately charged with (indictment ironically still available on the DOJ website). There were 32 counts of Willful Retention of National Defense Information, along with some related counts and a conspiracy to obstruct justice. The lead charge, 18 U.S.C. § 793(e), provides as follows:

Prosecutors have to prove the conduct the statute sets forth and the defendant’s state of mind. Here, that means convincing a jury that Trump unlawfully possessed classified information and willfully refused to return it to the National Archives when asked to do so. But prosecutors don’t have to establish why the defendant did that.

Of course, juries are made up of human beings and we are curious by nature. Prosecutors want to satisfy that curiosity by helping juries understand why the defendant did what he did. This newly released memo suggests at a possible motive: “‘Trump possessed classified documents pertinent to his business interests — establishing a motive for retaining them,’ according to the memo, which tracked progress in the documents and election-interference investigations. ‘We must have those documents.’”

“We must have those documents” is likely a reference to getting the intelligence community (IC) to provide a sanitized, unclassified version of the documents that could be admitted at trial as evidence. This is the dance prosecutors have to engage in when classified material is part of the evidence they want to use to prove their case—persuading classification authorities that either a declassification of a document or at least a version of it that, while protecting sensitive information, is sufficient to help them prove their case—should be made available.

The memo was written in January 2023. We don’t know if prosecutors received the IC’s blessing and moved forward with this theory or if other information came to light that led them to subsequently abandon it. But they sound serious about pursuing it. “We must have those documents,” they wrote in the memo. The implication is that Trump was using classified information for personal profit, putting national security at risk along the way.

Representative Jamie Raskin, the ranking Democratic member of the House Judiciary Committee, slipped another interesting detail into a letter he wrote to AG Pam Bondi. “These new disclosures suggest that Donald Trump stole documents so sensitive that only six people in the entire U.S. government had access to them.” That suggests a document of extraordinary sensitivity.

Asked for comment, the White House had only word salad to offer: “It’s pathetic that Democrats with zero credibility like Jamie Raskin are still clinging to deranged Jack Smith and his lies in 2026. President Trump did nothing wrong, which is why he easily defeated the Biden DOJ’s unprecedented lawfare campaign against him and then won nearly 80 million votes in a landslide election victory.” The insult to Raskin and the electoral victory do little to support the assertion that Trump “did nothing wrong,” when his conduct is plain.

How did the memo come to light? Raskin explained it like this in the letter to Bondi: “Apparently blinded by the frenzied search to find any scrap of evidence that could be twisted and distorted to level an attack against Special Counsel Smith (despite constantly coming up empty-handed), you have, quite amazingly, missed the fact that some of the documents you provided include damning evidence about your boss’s conduct and may well violate the gag order your DOJ and Donald Trump demanded from Judge Aileen Cannon.”

The reporting so far doesn’t reveal precisely which Trump business interests are involved, but Raskin engages in some educated speculation in the letter, which involves a classified map Trump had. “Without access to Volume II of the Special Counsel’s final report or the investigative files, we do not know what that classified map contained, nor can we determine from this memo the relationship between the classified documents President Trump stole and their pertinence to his ‘business interests,’” Raskin acknowledged. He continued, however, “We do know that around the time of this flight to Bedminster, President Trump was entering into partnerships with Saudi-backed LIV Golf and state-linked real estate firm Dar al Arkan.”

The flight is one where Trump allegedly showed others the map in question, and Raskin notes, “A month after this flight, in July 2022, President Trump played golf at Bedminster with Yasir al-Rumayyan, head of the sovereign wealth fund of Saudi Arabia—the same official who plied the Trump family with tens of millions of dollars as the family began to run out of money between terms. During this trip, President Trump defended his business partners from criticism levied by the families of 9/11 victims protesting the Saudi government’s role in the attack.” Raskin say that in this time period Trump boasted about having maps and said “that it was only the hawks who wanted to attack Iran, not him, and that he had Pentagon war plans ‘done by the military and given to me’ about such a potential attack.”

Raskin’s conclusion is stark because of what is going on today, years later. “If this map is related to our military posture in the Middle East,” he writes to Bondi, “and it was in fact shown to any foreign official, Saudi or otherwise, that would amount to an unforgiveable betrayal of our men and women in uniform who are currently valiantly fighting in President Trump’s disastrous war against Iran.” Raskin includes a list of questions for DOJ to respond to and demands that DOJ “cease cherry-picking investigative materials and produce all remaining investigative files, including memoranda, emails, and analyses prepared by the Special Counsel’s Office by 5:00 p.m. on April 14, 2026.” I suspect he’ll have even less luck with that than Congress has had obtaining the full Epstein files. But as with those files, public awareness and outcry is essential.

DOJ mistaked its way into providing information it has been desperate to withhold and has been able to keep from public view so far, with Judge Cannon’s help. But her decision is on appeal and a panel at the 11th Circuit will hear oral argument in June. That court could order the release of Volume II of the Special Counsel’s report and complete our understanding of the picture that is only hinted at here.

This one letter that has come to light reminds us that Jack Smith had a serious prosecution that was derailed, and not because it lacked merit. Recent reporting suggests that the Saudi’s continue to push the war in Iran. We have the implications of Raskin’s letter at hand. American lives are at stake in the Middle East, fighting a war that appears poorly thought out at best and likely to seriously impact the economy. The classified documents case, which Trump tried to dismiss and then delay, ultimately succeeding, reemerges as an extraordinarily serious matter.

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We’re in this together,

Joyce