Key Facts In The Trump Classified Documents Case

On June 13, 2023, former President Donald Trump was indicted on 37 felony counts related to his handling of classified documents. The former President has pleaded not guilty.

The federal charges were brought by the Justice Department, led by Special Counsel Jack Smith.

Here are key facts in the case:

#1. According To The Indictment, Trump Knowingly Retained Documents From The White House Containing Classified Information

During its search of Mar-a-Lago (MAL) on August 8, 2022, the FBI reportedly recovered approximately 13,000 documents in Trump’s possession, including more than 100 containing classified information related to national security.

According to the indictment:

• At least 337 classified documents were recovered at MAL over the course of the investigation.

• The papers found in Trump’s possession included information on some of the nation’s most sensitive national defense programs, like U.S. intelligence operations involving China and Iran’s missile program.

• According to the indictment: “The unauthorized disclosure of these classified documents could put at risk the national security of the United States, foreign relations, the safety of the United States military, and human sources and the continued viability of sensitive intelligence collections methods.”

• Trump may have put national security at risk. Some documents were so sensitive that, The Washington Post reports, “Only the president, some members of his Cabinet or a near-Cabinet-level official could authorize other government officials to know details of these special-access programs, according to people familiar with the search.”

• Trump took documents from a number of federal agencies, including the CIA, Department of Defense, National Security Agency, National Geospatial Intelligence Agency, National Reconnaissance Office, Department of Energy, and the State Department and its Bureau of Intelligence and Research.

Trump allegedly knew that he had possession of classified government documents and was directly involved in handling them.

• In January 2021, after losing the 2020 presidential election, according to the indictment, Trump was personally involved in packing classified documents to transfer from the White House to MAL.

• Reports indicate that Trump told several aides, “It’s not theirs; it’s mine,” in reference to the documents he was retaining at the time.

• Former White House staffers and others in Trump’s orbit reportedly told federal agents that Trump had been “personally overseeing his collection of White House records” and “had been reluctant to return anything.”

Trump publicly admitted to intentionally taking the classified documents from the White House. Intentionally taking classified documents is a violation of law.

• During a CNN Town Hall on May 11, 2023 Trump admitted to taking the documents, incorrectly arguing “I have the absolute right to do whatever I want with them. I have the right.”

• The indictment includes a transcript of an audio recording from 2021 of Trump acknowledging that he had retained “highly confidential” and “secret” military information that he could no longer declassify.

• The indictment alleges that Trump kept boxes containing classified documents in rooms at MAL – including a ballroom where events and gatherings took place, a bathroom, an office space, and a storage room that could be accessed from multiple outside entrances, including a doorway that was often kept open – and that Trump showed classified documents to others without security clearances.

The government has alleged that Trump’s unauthorized possession of, and failure to return, the documents violated a set of laws, including the Willful Retention of National Defense Information (18 U.S.C. § 793(e)), better known as the Espionage Act. Though each of the 31 Espionage Act charges carries a maximum sentence of 10 years, a judge could have those sentences run concurrently.

Trump and his defenders, including Senator Lindsay Graham (R-SC), may claim that Trump cannot be convicted under the Espionage Act because he “did not disseminate, leak or provide information to a foreign power or to a news organization to damage this country. He is not a spy.” Such a claim is, ultimately, incorrect as a matter of law because:

• Contrary to Graham’s remarks, conviction under the Espionage Act does not require “spying” in the traditional sense. The section of the Act which Trump has been charged under – 18 U.S.C. § 793(e) – simply requires that the defendant gathered, transmitted, or lost national defense information.

#2. According To The Indictment, Through Lawyers and Members of His Team, Trump Repeatedly Made False Statements To Federal Agencies About Possessing The Documents And Obstructed Justice

Over the course of 15 months, the government attempted to recover the documents in Trump’s possession. Trump repeatedly refused to turn them all over, ultimately forcing the FBI to seek a subpoena and search his residence to recover them in August 2022.

 According to the indictment:

• In May 2022, Waltine “Walt” Nauta, Trump’s aide and co-defendant in the case, made false and misleading statements to the FBI about the boxes of documents stored at MAL, falsely stated that he was not aware of Trump reviewing the documents, and did not know how the documents had gotten to MAL or how they were stored there.

• In May 2022, Trump met with his attorneys at MAL and was told that they needed to search for documents to be responsive to the government subpoena. According to the indictment, Trump told his lawyers: “Wouldn’t it be better if we just told them we don’t have anything here?”

• During the period May 23, 2022 – June 2, 2022, Trump and Nauta, “at Trump’s direction,” moved approximately 64 boxes in the storage room, but did not inform Trump’s lawyers of this.

• In June 2022, a Trump lawyer stated that a “diligent search” of the boxes had been conducted and “any and all” documents were returned. This was false, as Trump had directed the boxes be moved before the lawyers could review the documents.

According to news reports, Trump knew he could not lawfully retain the classified documents and risked criminal penalties if he did. 

• Trump’s lawyers provided numerous warnings and notifications making him aware that he could not lawfully retain the documents and risked criminal penalties for doing so.

• Trump’s White House Counsel issued a memorandum to White House staff in 2017 on “Presidential Records Act Obligations,” identifying the criminal penalties for concealment of presidential records.

• Trump was urged by at least two of his Chiefs of Staff during his time in office to follow the law on preserving documents.

• Trump lawyers were warned by the National Archives General Counsel Gary Stern and the Justice Department’s Chief of the Counterintelligence and Export Control Section Jay Bratt. 

The government has alleged that Trump’s conduct violated a set of laws including obstruction of justice (18 U.S.C. § 1519) and making false and misleading statements to the FBI (18 U.S.C. § 1001(a)(2)). If convicted on these counts, Trump could face up to 25 years in prison.

#3. According To The Indictment, Trump Engaged In Conspiracy To Obstruct By Directing Aides to Obstruct The Federal Investigation And Withhold Documents

The indictment alleges that Trump directed his staff to obstruct law enforcement efforts to recover the classified documents by making false statements and concealing them.

• Both The New York Times and The Washington Post report that Trump repeatedly resisted efforts to return the documents, even when two former White House officials tried to facilitate their return. Trump reportedly described the boxes of documents as “mine.”

According to the indictment and published reports, Trump suggested that his attorney falsely represent to the FBI and grand jury that Trump did not have the documents the government sought.

• The indictment alleges that Trump suggested that his attorney “hide or destroy documents called for by the grand jury subpoena,” and claim that he was “cooperating fully.”

• In early 2022, according to The Washington Post, Trump pressed his legal counsel Alex Cannon to make false statements to the National Archives that all presidential records had been returned, which Cannon refused to do on the grounds that he did not believe that statement to be true.

The indictment provides evidence, including call logs and text messages, that Trump directed his aide Waltine “Walt” Nauta to move boxes containing classified documents around MAL. Nauta faces six counts in this case, with charges ranging from conspiracy to obstruct justice to concealing evidence.

• In May and June 2022, according to the indictment, Nauta allegedly moved boxes at Trump’s behest that contained classified documents from the MAL storage room to the residence.

• Nauta is seen on security footage moving boxes out of a storage room at MAL, both before and after the Justice Department issued its subpoena.

The government has alleged that Trump and Nauta knowingly conspired with each other and with others to mislead investigators and withhold documents from a federal grand jury, violating both 18 U.S. § 1512(b)(2)(A) and 18 U.S. § 1512(c)(1). If convicted on these counts, Trump could face up to 40 years in prison.

#4. There Have Been Hundreds Of Similar Prosecutions Related To The Illegal Retention Or Dissemination Of Classified Information Related To National Security

• Since 1945, there have been more than 250 prosecutions brought by the Justice Department which alleged, charged, or included evidence of dissemination of national defense information (NDI).

• Furthermore, legal experts have affirmed that the existing Justice Department precedent indicates that to decline to bring a case against Trump would be treating Trump far more favorably than other defendants.

As shown in the indictment and published reports, Trump has repeatedly said that laws relating to the handling of classified documents should be enforced.

• In August 2016, Trump stated, “In my administration, I’m going to enforce all laws concerning the protection of classified information. No one will be above the law.”

• In September 2016, Trump said, “We also need the best protection of classified information.”

• In March 2017, Trump stated that “Congress, the FBI and all others should be looking into … the leaking of classified information.”

• In July 2018, Trump issued a statement about classified information, saying, “[T]he issue of [a former executive branch official’s] security clearance raises larger questions about the practice of former officials maintaining access to our Nation’s most sensitive secrets long after their time in Government has ended.”

• In June 2020, speaking about former National Security Adviser John Bolton, Trump said that Bolton should go to jail “for many, many years” over a claim that Bolton allegedly shared classified information in his book.

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