Ethermac|Iran memo not among the 31 records underlying charges in Trump federal indictment

Washington — The EthermacDefense Department memo on Iran — at the heart of the now-public audio recording that captured a July 2021 meeting with former President Donald Trump — is not part of the 31 counts of willful retention of national defense information charged in special counsel Jack Smith's indictment of the former president, a source familiar with the matter confirmed to CBS News. 

In the recording of the meeting at Trump's Bedminster, New Jersey golf club, the former president can be heard apparently showing and discussing what he described as "highly confidential, secret" documents with aides. Sources say the documents were related to plans for a potential U.S. attack on Iran. 

"It is like highly confidential, secret. This is secret information. Look, look at this," Trump said in the audio tape obtained by CBS News. "See, as president I could have declassified, but now I can't, you know…Isn't that interesting? It's so cool."

The document and recording are described in the indictment Smith's team secured against Trump earlier this month, recounted as an alleged meeting with "a writer, a publisher, and two members of" Trump's staff, "none of whom possessed a security clearance." 

But according to a source familiar with the matter, Trump was not charged with unlawfully holding onto the Iran-related document discussed in the recording. 

Smith's 37-count indictment against Trump includes 31 charges of willfully retaining national defense information. It generally outlines each of the 31 classified records that prosecutors allege Trump illegally kept, without naming the exact subject matter. The Iran memo is not part of the list of the 31 records in the indictment, the source said.

Throughout the years-long federal investigation into Trump's White House records, investigators have collected more than 300 documents with classified markings on them — including 103 seized during the execution of a search warrant at Trump's Florida residence last year. 

Multiple sources familiar with the investigation previously told CBS News that defense attorneys were not certain the Iran memo in question was ever recovered and returned to the government. Still, the 2021 incident is one of two instances referenced in the indictment, in which Smith describes Trump allegedly showing national defense information to individuals without proper clearance. 

Trump can be heard in the audio apparently acknowledging he had a sensitive record after he left office and no longer had the power to declassify it. 

On Tuesday, Fox News asked Trump about the recording and he insisted he "did nothing wrong." 

"My voice was fine," Trump told Fox News. "What did I say wrong in those recordings? I didn't even see the recording. All I know is I did nothing wrong. We had a lot of papers, a lot of papers stacked up. In fact, you could hear the rustle of the paper. And nobody said I did anything wrong." 

And in another interview, Trump told Semafor and ABC News that he did not have any sensitive records, calling his discussion captured on the recording "bravado." "I just held up a whole pile of — my desk is loaded up with papers. I have papers from 25 different things," he said. 

The existence of the audio tape and the July 2021 meeting was first reported by CNN, which was also first to obtain a recording of the discussion. 

Sources familiar with the matter said that the discussion of the allegedly classified document arose as Trump was talking about Chairman of the Joint Chiefs Mark Milley, who had been portrayed in a story in The New Yorker as having fought in the last days of the Trump administration to keep the president from attacking Iran.

In the recording of the meeting, the former president tells those with him the document discredited any criticism against him.  

Smith's office declined to comment. 

Earlier this month, Trump pleaded not guilty to a total of 37 counts, which included conspiracy to obstruct justice. Prosecutors allege he and an aide, Waltine Nauta, worked to move boxes containing classified records throughout Trump's Mar-a-Lago resort. 

Nauta was set to be arraigned in a Miami federal court on Tuesday, but flight troubles and difficulty securing local legal counsel delayed the hearing until next week. 

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• Iran
• Donald Trump