United States v. Trump et al: The Indictment

I. Counts 1 – 31: Willful Retention of National Defense Information 18 USC § 793 (e)

Introduction

On June 8, 2023, Donald Trump, 45th President of the United States was indicted in Federal Court for the Southern District of Florida case number 23-801 01-CR-CANNON/REINHART.¹ The indictment alleges that Trump unlawfully retained and mishandled classified documents after leaving the White House at the end of his presidency From January 20, 2021 – August 8, 2022:

DONALD J. TRUMP, having unauthorized possession of, access to, and control over documents relating to the national defense, did willfully retain the documents and fail to deliver them to the officer and employee of the United States entitled to receive them; that is—TRUMP, without authorization, retained at The Mar-a-Lago Club documents relating to the national defense....²

The indictment lists 31 instances of classified documents that were found in Trump’s possession on August 8, 2022, during the execution of a court ordered search warrant by the FBI. Trump supporters refer to this as the raid on Mar-a-Lago. That is a false characterization.

NARA

The National Archives and Records Administration gave Trump every opportunity to return the documents in his possession. Beginning in May 2021, the National Archives repeatedly demanded that Trump turnover presidential records that he kept after his presidency. On multiple occasions NARA warned Trump through his representatives that if he did not comply, it would refer the matter of the missing records to the Department of Justice.³ Trump was given the opportunity to return the documents in his possession before the National Archives turned the matter over to the Justice Department. Had Trump complied fully, the National Archives would not have involved the Justice Department. Trump and his supporters maintain that the reason he’s being prosecuted is that he is President Biden’s leading political opponent. This is also a false characterization. Although the Attorney General of the United States is appointed by the President of the United States and confirmed by the United States Senate, the Justice Department is an independent department of the executive branch. Merrick Garland, to assure the independence of the investigation, appointed a Special Counsel – Jack Smith on November 18, 2022.

Presidential Records Act

In January 2022, Trump, Nauta, and employee 2 prepared 15 boxes for return to the National Archives.⁴ Those 15 boxes did not contain all the documents in Trump’s possession. The indictment makes clear that National Security information is the property and under the control of the United States government.⁵ Thus, by its nature is a presidential record and covered by the Presidential Records Act. It is not and does not become part of personal records, which are defined by the Act as:

(3)The term personal records means all documentary materials, or any reasonably segregable portion thereof, of a purely private or nonpublic character which do not relate to or have an effect upon the carrying Out of the constitutional, statutory, or other official or ceremonial duties of the President.⁶

It does not have any provision that allows a president or former president to transform presidential records into personal records after a presidency. Nor does it allow a former president to retain possession of presidential records. Therefore, Trump’s claim that he can keep the records under the Presidential Records Act is yet another false characterization.

Furthermore, Trump and his supporters claim that Judicial Watch, Inc. v. National Archives and Records Admin., 845 F.Supp.2d 288 (2012), which Trump refers to as the Clinton Socks Case; totally exonerates him.⁷ Trump and his supporters are wrong. The 16-page opinion refers to the Presidential Records Act section 2203 (b), The PRA requires that all materials produced or received by the President, ‘to the extent practicable, be categorized as Presidential records or personal records upon their creation or receipt and be filed separately.’⁸

On February 9, 2022, the National Archives referred the discovery of classified documents in Trump’s boxes to the Department of Justice for investigation.⁹ On March 30, 2022, the FBI opened a criminal investigation. On April 26, 2022, a federal grand jury opened an investigation.

II. Count 32: Conspiracy to Obstruct Justice 18 USC § 1512 (k)

From May 11, 2022-August 2022, according to the indictment, Trump, and his codefendant Waltine Nauta entered into a conspiracy to obstruct justice.

DONALD J. TRUMP and WALTINE NAUTA, did knowingly combine, conspire, confederate, and agree with each other and with others known and unknown to the grand jury, to engage in misleading conduct toward another person and corruptly persuade another person to withhold a record, document, and Other Object from an official proceeding, in violation of 18 USC § 1512(b)(2)(A) and to corruptly conceal a record, document, and other object from an official proceeding, in violation of 18 USC § 1512(c)(1).¹⁰

The conspiracy’s purpose was for Trump to maintain possession of the classified documents that he had taken from the White House and to hide and conceal them from a federal grand jury.¹¹

Grand Jury Subpoena

On May 11, 2022, the grand jury issued a subpoena to Trump requiring the production of all documents with classified markings in the possession, custody, or control of Trump….¹² On May 23, 2022, Trump met with two of his attorneys at Mar-a-Lago to discuss responding to the subpoena. One of the attorneys suggested that they would conduct a search for the subpoenaed documents on June 2, 2022. Trump made clear that he did not want anybody going through his boxes not even his attorneys.¹³ Between May 23, 2022, and June 2, 2022, Nauta—removed—at Trump’s direction—a total of approximately 64 boxes from the Storage Room and brought them to Trump’s residence….¹⁴ There are security cameras at Mar-a-Lago that show Nauta’s movement in and out of the storage room on specific days at specific times. This security footage was subpoenaed by prosecutors. On June 2, 2022, Nauta, with assistance, moved approximately 30 boxes from Trump’s residence to the Storage Room. Leaving approximately 34 boxes in Trump’s residence without informing the attorney conducting the search.¹⁵

False Certification to the FBI and the Grand Jury

On June 2, 2022, Trump’s attorney conducted a search in response to the grand jury subpoena. Nauta escorted the attorney to the storage room containing the 30 boxes. Between 3:53 PM and 6:23 PM, Trump’s attorney conducted the search and located 38 documents with classified markings inside the boxes…. The attorney took the documents and placed them in a Redweld folder, then, sealed the folder with clear duct tape. Trump has maintained that he declassified all the documents in his possession, if that were the case; then the attorney would not have secured the documents in that manner.¹⁶ According to the attorney, during a meeting he had with Trump after he conducted the search, Trump suggested that the attorney take the folder back to his hotel room and put it in a safe. While making the suggestion, Trump made a plucking motion:

He made a funny motion as though — well okay why don't you take them with you to your hotel room and if there's anything really bad in there, like, you know, pluck it out. And that was the motion that he made. He didn't say that.¹⁷

The above can be characterized as Trump’s consciousness of guilt and at that point the attorney who conducted the search was uncomfortable with the situation to say the least.

It has been reported that M. Evan Corcoran is Trump attorney 1. The above quote from the indictment came from Corcoran’s notes which were made at some point in 2022. Those notes were made available to the prosecutors by court order pursuant to the crime fraud exception to the attorney client privilege.¹⁸ On June 2, 2022, Corcoran contacted Christina Bobb, he requested that Bobb act as custodian of records. Although Bobb had no role in the search for records in Trump’s boxes she agreed.¹⁹ On June 3, 2022, Bobb signed a certification stating in essence that a diligent search was conducted pursuant to the subpoena and any and all response of documents were handed over to the representative of the FBI with the certification.²⁰ This certification was of course false because, as detailed above, Trump had caused the removal of 64 boxes from the storage room and the return of only 30 before Corcoran conducted the search for documents. It is possible that Corcoran suspected that there were in fact more documents, which is why he did not sign the certification.

Court-Authorized Search of Mar-a-Lago

In July 2022, the FBI and grand jury obtained and reviewed surveillance video” from Mar-a-Lago, which showed the movement of Trump’s boxes.²¹ On August 8, 2022, the FBI executed a court-authorized search warrant on Mar-a-Lago. The search warrant authorized the FBI to search for and seize, among other things, all documents with classified markings.²² The search recovered 102 documents from Mar-a-Lago detailed in the table below:

It is unclear whether the documents listed above are all the documents that Trump had in his possession.

III. The Iran Document Audio Recording and Counts 33-37

Iran Document Audio Recording

On July 21, 2021, when Trump was no longer president, he gave an interview at his Bedminster Country Club in connection with a then-forthcoming book. The interview was recorded with Trump’s consent. Before the interview, reports had been published that, at the end of Trump’s term a senior military official, Chairman of the Joint Chiefs of Staff General Mark Milley, reportedly feared that Trump might order an attack on Country A and [Milley] advised Trump against doing so.²⁴ Of the five people in the room during the interview, four did not have security clearance or any need-to-know any classified information about a plan to attack [Iran]. Furthermore, Trump had not received any security briefing after January 6, 2021, and in February 2021, President Biden barred Trump for receiving intelligence briefings that are usually given as a courtesy to former presidents.²⁵ In the audio, Trump can clearly be heard shuffling papers and saying, Look, look at this. You attack, and— ….²⁶ The listener is clearly left with the impression that Trump is showing the other four people the document. However, Trump has yet to be charged with disseminating classified information. Additionally, Trump makes clear his understanding that the document under discussion is classified, he could have declassified it while president, and he cannot declassify it because he is no longer president, which leads one staffer to say, Now we have a problem.²⁷

Counts 33-37

The remaining five charges against Trump: Withholding a Document or Record, Corruptly Concealing a Document or Record, Concealing a Document in a Federal Investigation, Scheme to Conceal, and False Statements and Representations, are crimes committed in furtherance of obstruction of justice. Put simply, Trump just did not want to give the documents back. For his actions, Trump could conceivably, at 77 years old, spend the rest of his life in prison if found guilty by a jury.

IV. Observations

As stated above Donald Trump and his supporters have made several false characterizations. The charges are politically motivated. They are not. Merrick Garland appointed a special prosecutor—Jack Smith who has complete independence. Additionally, if Trump had returned all the documents in his possession to the National Archives he would not have been indicted. As detailed above the National Archives when out of its way to avoid involving the Department of Justice. However, Trump and his followers maintain that Trump is being persecuted and no other person in similar circumstances would have been charged. That is false. Moreover, Trump and his supporters claim that he is the victim of a two-tiered justice system. There is a two-tier justice system in this country, and it is working in Trump’s favor because anyone else would be and has been imprisoned for the same crimes.

Counts 1-31 Willful Retention of National Defense Information have nothing to do with whether those documents are classified, thus Trump’s assertion that he declassified the documents in his possession is irrelevant. He was not entitled to have the documents in his possession. Nevertheless, no president can simply unilaterally declassify documents, specific procedures must be followed. They were not. That is the case with Count 19 “undated document concerning nuclear weaponry of the United States” a decision on declassification is made jointly by the Department of Energy and the Department of Defense:

Some secrets such as information related to nuclear weapons, are handled separately under a specific statutory scheme that Congress has adopted under the Atomic Energy Act Those secrets cannot be automatically declassified by the president alone and require, by law, extensive consultation with executive branch agencies.²⁸

No such consultation took place; therefore, the above document is still classified and should not have been in Trump’s possession. In any case, formal procedures exist so government agencies know with certainty that information has been declassified and that there is a record of that decision.²⁹

The indictment clearly explains the charges and specifications against Trump. What is not clear is, if Trump has any legal defense to what is alleged in the indictment. The defenses that he has offered so far are merely for public consumption and will not stand up in a court of law. It is not even clear if he has the attorneys with the necessary skills to defend him against the indictment, or if he can find any. What is clear is that Trump should seriously consider a plea bargain.

Notes