Although it includes 49 pages and 38 “counts” or charges, the Trump document indictment tells a simple and compelling story. After his term as President ended, Donald Trump deliberately kept and did not return important documents containing national defense information, many of which were classified as “top secret.” Rather than taking steps to try to keep them safe and secret, he stored them recklessly and improperly disclosed some of them to other people. And rather than promptly returning them to the government and cooperating with efforts to get them back, Trump obstructed those efforts, lied, and continued to try to hide and keep these documents. Conservative and progressive experts alike have decried the shameful conduct that the indictment describes.
The specific charges against Trump in the indictment fall into two categories: 1/ willfully retaining government documents containing national defense information; and 2/ obstructing efforts by government to recover those documents and instead continuing to hide them, including trying to get other people to help him obstruct recovery efforts.
Willful Retention of National Defense Documents
The indictment notes that while he was President, Trump stored “hundreds of classified documents” in cardboard boxes at the White House, which also contained “press clippings, notes, cards, photographs, [other] official documents, and other materials.” The classified documents included information about the “defense and weapons capability” of the US and other countries, the disclosure of which to unauthorized people could “put at risk the national security” of the US, jeopardize our troops, and cause other harm.
When his term ended, however, Trump did not make any effort to return the classified or other official documents in the boxes to the government. Instead, the indictment recounts, he “caused scores” of boxes, many of which contained classified and official documents, to be transported to the Mar-a-Lago Club in Florida, where he lives.
This willful retention of government documents, which continued until the FBI recovered them when it searched Mar-a-Lago, violates the Espionage Act. It’s important to note that law does not require proof that Trump was spying, contrary to what some defenders have maintained. Instead, it simply requires proof that Trump had “unauthorized possession” of government documents with information “relating to the national defense,” and then “willfully retain[ed]” them and “fail[ed] to deliver” them back to the government. 18 U.S.C. 793(e). The indictment lists 31 such documents, which accounts for the first 31 charges or counts in the indictment. The government has sent a number of individuals who similarly retained and failed to return such government documents to prison for years, even when they pleaded guilty.
Obstruction of Justice and Efforts to Recover Documents
The indictment explains that beginning in May 2021, the National Archives and Records Administration (NARA) “demanded” that Trump turn over presidential records and “warned” him that if he did not, it would refer the matter to DOJ. Rather than sort through the boxes and return all such records, however, Trump kept many of the government records, stored them recklessly around Mar-a-Lago where people with no clearance could gain access to them, and even showed some national defense documents to people without such clearance. He enlisted aides and others in his efforts, including trying to get some to lie to government officials.
Specifically, the indictment describes and shows pictures of how Trump’s boxes were stored carelessly in places including “a ballroom, a bathroom and shower,” and “his bedroom.” In December 2021, Trump aide (and co-defendant) Waltine Nauta found the contents of several boxes spilled on the floor of a storage room, including at least one marked “secret,” where anyone passing by could access them.
Even worse, Trump personally showed several classified documents to people who had no clearance to see them, and discussed the documents with those individuals. The indictment describes how he showed a confidential “plan of attack” from the Defense Department to a writer, a publisher, and several others, and specifically stated that although he might have been able to declassify the document while he was president, the document remained secret. He also showed a classified map of a military operation to a representative of his political action committee, acknowledging that he “should not be showing” the map to him.
In January 2022, months after NARA demands, 15 of Trump’s boxes containing some classified documents were turned over to the government. But the indictment describes how many more were withheld, leading to the opening of an FBI investigation and a grand jury subpoena. Even then, the indictment explains that Trump and his aides continued to try to obstruct the investigation by such conduct as:
- “suggesting that his attorney falsely represent to the FBI and the grand jury that Trump did not have documents called for by the grand jury subpoena;”
- “directing” that Nauta “move boxes of documents to conceal them from Trump’s attorney, the FBI, and the grand jury;”
- “suggesting that his attorney hide or destroy documents called for by the grand jury subpoena;” and
- “causing a certification to be submitted to the FBI and the grand jury falsely representing that all documents called for by the grand jury subpoena had been produced – while knowing that, in fact, not all such documents had been produced.”
Finally, after Trump and his aides failed to provide all classified documents he retained in response to the grand jury subpoena, a federal judge authorized the FBI to search Mar-a-Lago in August, 2022. This led to the recovery of 102 more improperly withheld classified documents, many of which Trump is charged with illegally retaining in the indictment. In addition to the 31 counts concerning retention of defense-related government documents, the indictment includes 7 more counts charging Trump and Nauta with illegally making false statements and representations, scheming to conceal documents, corruptly concealing documents, and conspiring to obstruct justice.
Why It Matters
If the allegations in the indictment are true, Donald Trump betrayed his office, his country, and the American people in the gravest possible way. Showing top secret Defense Department and intelligence agency documents to people who lack a security clearance puts soldiers, sailors, airmen, Marines and people in the intelligence services at risk of losing their lives. Leaving these documents where anyone could stumble over them is just as risky. There is no possible justification for this behavior.
The prosecution of this case matters because in our democracy, nobody is above the law. If anyone, including a former president, has committed crimes, it’s the responsibility of our justice system to investigate, charge, prosecute and hold offenders accountable.
How to Talk About the Case
The Far Right is trying to defend Donald Trump with a variety of arguments, but these arguments are weak. Trump’s defenders can’t claim he is innocent of taking the documents because he has repeatedly admitted to having them. So they are trying other tactics. Here’s how to respond to the top arguments you may hear from the Right – and one you might hear from folks on all sides:
- The Right says: “This is all a political witch hunt!” One of the best responses to this comes from Bill Barr, Trump’s own former attorney general. Barr points out that the government gave Trump numerous opportunities to return all the documents and avoid indictment. But he never did. Far from being determined to prosecute Trump at all costs, the government repeatedly provided Trump a chance to come clean; his own resistance brought him to where he is today. Meanwhile, this indictment was not concocted by politicians: it was based on deliberations by grand juries of regular citizens, including a panel in Florida, who looked at the evidence and determined charges were warranted. This is a textbook example of how our justice system works, whether you are an ordinary citizen or a former president.
- The Right says: “What Trump did isn’t unusual – everybody does it! What about Hillary Clinton, Joe Biden and Mike Pence – they had classified material too!” The big difference is that Joe Biden and Mike Pence, when it was discovered that these documents were among their personal papers, immediately returned the documents to the government. In Clinton’s case, there was no indication that she intentionally exchanged or withheld classified information, and she cooperated with an investigation. Again, Trump could have avoided all this by cooperating. Instead he allegedly spent months dodging investigators and lying about hiding papers from them.
- Folks on different sides of the issue say: “What difference does this make? Trump’s been in legal hot water before – and nothing ever happens to him.” First, this is the first federal criminal indictment of Trump and by far the most serious charges that have been brought to date. Second, whether someone has been in legal trouble before is no reason not to prosecute them if there is evidence of new crimes. Trump is a powerful person, but he doesn’t have magic powers. If the evidence against him is as strong as it appears to be, there is every reason to believe that a jury will convict him.
Read Svante Myrick’s op-ed for The Hill about the indictment, here.