Subject: Re: Audio of Trump's Conversation
Ok, so why ISN'T Trump being charged with disclosure based on the two incidents cited in the charges, aka, the "showing to another" behavior that we hear on the audio tape? Does it not prove anything adequately enough?

I expect it's because they can't prove beyond a reasonable doubt what was actually in the document.

The reporter and/or staffers in the room can probably confirm that Trump was holding/gesturing with a document or documents during that part of the interview. But I suspect that they can't tell investigators exactly what the documents said or showed, either because they didn't get a good look or because they don't remember.

We do have Trump's oral statements about what the documents showed. But you can't introduce those statements as evidence to show the contents of those documents, because it's hearsay. Hearsay general is defined to mean someone's oral or written out-of-court statements that are being offered as proof of the matter asserted in the statement. So if someone in an audio tape says, "This document is a classified document that I can't show you because it's classified," you can't introduce that statement as evidence that the document is actually a classified document.

However, you can introduce out-of-court statements to prove a defendant's state of mind. So in the statement above, you can't use the statement to prove the document was classified - but it is evidence that the defendant thought it was classified and that the defendant was aware that classified documents couldn't be shown to third parties.

That's why the tape is very useful. It debunks Trump's claim that he mentally declassified each and every document that he took with him from the WH. It is evidence that (at least at the time of the recording) Trump believed he still had classified information in his possession that had not been returned to the government. And it doesn't reflect well on Trump that he was showing/talking about this document with reporters, which puts a difficult choice to defense counsel whether they want to argue that Trump genuinely believed that everything he had in his possession was innocuous (whether through declassification or that it wasn't defense information) - they would prefer that tape not be played in open court.