Continuing my review of the Biden Administration’s federal indictment of their chief political rival, former President Donald Trump, for “unauthorized” retention of allegedly classified documents, conspiracy, obstruction of justice, and false statements (among other charges), we’ve made it to pages 7 and 8 of the 49 pages.
21. After his presidency, TRUMP retained classified documents originated by, or implicating the equities of, multiple USIC members and other executive branch departments and agencies, including the following: [lists U.S. intelligence community members, including CIA, DoD, NSA, NGIA, NRO, State Dept.]
(¶21, p. 7-8)
Of note, one of the preceding paragraphs, ¶19, makes mention of the intelligence summary that’s prepared for the President, the President’s Daily Brief (PDB). Presumably, some of the documents in Counts 1-31 of the indictment are copies of the PDB, though we cannot know for certain from the descriptions.
Page 9 lists some of President Trump's 2016 campaign statements and other public statements about classified information, reading more like campaign opposition research than an indictment.
24. In January 2021, as he was preparing to leave the White House, TRUMP and his White House staff, including NAUTA, packed items, including some of TRUMP's boxes.
TRUMP was personally involved in this process. TRUMP caused his boxes, containing hundreds of classified documents, to be transported from the White House to The Mar-a-Lago Club.
(¶24, p.10)
According to the indictment (¶2, p.2), however, and procedure under the Presidential Records Act, which provides for an ongoing process to segregate personal records and presidential records (44 U.S.C. §2203(b)), most of the boxes presumably already contained whatever they contained. The "some of TRUMP's boxes" that TRUMP "was personally involved in" packing were perhaps the last few. Notably here, the indictment doesn't give a specific date, which would be important for the legal significance of the activities ¶24 describes, which are otherwise innocuous and expected. It makes a difference whether TRUMP is packing still classified documents into boxes (or directing that others do so) when he's no longer President, and this seems unlikely, given that he reportedly left the White House at shortly after 8 AM on January 20, 2021 and landed in Florida at around 11 AM, ahead of the 12 Noon inauguration. As noted earlier, the probable cause affidavit for the Mar-A-Lago search relied in part on published reports of the presence of moving trucks at Mar-A-Lago on January 18, 2021, while TRUMP was still in office.
¶¶25-30 (pp. 10-12) describe various movements of the boxes at Mar-A-Lago by President Trump's employees, illustrated with the photographs of their locations mentioned in my previous article, inferring that documents having classified markings (or containing “national defense information”) were in those particular boxes and locations, prior to being consolidated into the storage room by June 2021.
32. In May 2021, TRUMP caused some of his boxes to be brought to his summer residence at The Bedminster Club. Like The Mar-a-Lago Club, after TRUMP's presidency, The Bedminster Club was not an authorized location for the storage, possession, review, display, or discussion of classified documents.
(¶32, p.14)
Again, President Trump’s club in Bedminster, NJ only became "unauthorized" either by operation of law at the end of President Trump's term, or by an intentional act of the Biden Administration making it so. [Is there an executive order about Bedminster?]
¶33-34 report an audio recorded interview with a writer and publisher at The Bedminster Club regarding published reports that President Trump had wanted to attack Iran (identified as "Country A" in the indictment), and President Trump denied this, saying that it was a plan the Defense Department and Gen. Mark Milley (identified as "Senior Military Official' in the indictment) came up with.
¶35 recounts a meeting "in August or September 2021" with a representative of his political action committee at the Bedminster, NJ club, and TRUMP allegedly commented that "that an ongoing military operation in Country B was not going well. TRUMP showed the PAC Representative a classified map of Country B..." [Country B is reportedly Afghanistan, as this conversation could be during or shortly after the Biden Administration's disastrous withdrawal in late August 2021.]
Both of these events took place prior to NARA's threat in June 2021 to refer the matter of the missing records to the Department of Justice.1
¶36 irrelevantly recounts another statement by President Trump criticizing leaks of classified information to the press.
As I mentioned in the previous article, these conversations at Bedminster have not been charged as offenses in the indictment (though the indictment could be amended in the future to include them), nor are there any “unauthorized” retention charges related to these allegedly classified documents.2 This is presumably because reportedly no FBI searches for documents at The Bedminster Club or Trump Tower in New York City were conducted. As such, the comments at Bedminster are not too relevant to the documents President Trump has been charged in the indictment with retaining, except perhaps to show “state of mind.” Like President Trump’s campaign comments, the Bedminster comments are included primarily for the press.
37. Beginning in May 2021, the National Archives and Records Administration ("NARA"), which was responsible for archiving presidential records, repeatedly demanded that TRUMP turn over presidential records that he had kept after his presidency. On multiple occasions, beginning in June, 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.
As explained in my previous article, NARA's authority under the Presidential Records Act (PRA) doesn't include criminal sanctions to recover presidential records. The PRA is civil law. If it were a criminal statute, it would be codified in Title 18 U.S. Code with the other federal criminal offenses. The PRA is found in Title 44.
Title 44, at §3106 requires the Archivist to notify the Attorney General about "actual, impending, or threatened unlawful removal, defacing, alteration, corruption, deletion, erasure, or other destruction of records in the custody of [a federal] agency" (emphasis added), and to initate "action" (a civil action, a.k.a. a lawsuit) through the Attorney General to recover the records.3
¶¶38-46 of the indictment recount President Trump's personal review of some of the boxes from the storage room, beginning in November 2021 for the production of documents to NARA in response to its threat. Ultimately, 15 boxes were produced on January 17, 2022, which, the indictment says contained 197 documents having classification markings (58% of the total that were retained, per the indictment).
¶47 sets up false statements charges against Mr. Nauta, President Trump's valet, for not recalling the details of the movement of the boxes during their review and production to NARA during an FBI interview in May 2022, several months after the events.
49. On February 9, 2022, NARA referred the discovery of classified documents in TRUMP's boxes to the Department of Justice for investigation.
(¶49, p.20)
Doing so required authorization from the Biden White House, due to access restrictions imposed by the Presidential Records Act (44 U.S.C. ¶¶2204-2205). So the escalation of the NARA records dispute to a criminal investigation required the active intervention of the Biden White House.
51. On April 26, 2022, a federal grand jury opened an investigation.
(¶51, p.20)
52. On May 11, 2022, the grand jury issued a subpoena (the "May 11 Subpoena") to The Office of Donald J. Trump requiring the production of all documents with classification markings in the possession, custody, or control of TRUMP or The Office of Donald J. Trump. Two attorneys representing TRUMP ("Trump Attorney 1" and "Trump Attorney 2") informed TRUMP of the May 11 Subpoena, and he authorized Trump Attorney 1 to accept service.4
(¶52, p.21)
As I mentioned in the previous article, for the 31 “unauthorized” retention charges in the indictment, classification status or markings of the documents don’t matter, and one of the documents President Trump is charged with “unauthorized” retention of has no classification markings.
¶53 says that Trump's valet, Walt Nauta, removed one of the boxes from the storage room on May 22, 2022.
This is not, in itself, unusual, as it's the same process President Trump used earlier in responding to NARA, to have someone go get the boxes and bring them to his residence so he could personally review them. However, the response to the grand jury subpoena was, according to the indictment, falsified as result of making some of the boxes in the storage room unavailable for review by one of President Trump’s attorneys.
62. In sum, between May 23, 2022, and June 2, 2022, before Trump Attorney 1's review of TRUMP's boxes in the Storage Room, NAUTA-at TRUMP's direction-moved approximately 64 boxes from the Storage Room to TRUMP's residence and brought to the Storage Room only approximately 30 boxes. Neither TRUMP nor NAUTA informed Trump Attorney 1 of this information.
(¶62, p.24)
So is this with the intent of concealing certain documents from Trump Attorney 1 (and thus the government), or just TRUMP being slow in personally reviewing the boxes? If the latter, it seems he got about halfway done with reviewing the 64 boxes Mr. Nauta brought to the residence, and according to the indictment, Mr. Nauta and another unnamed Mar-A-Lago employee had returned the 30 boxes to the storage room from the residence between 12:33 p.m. and 12:52 p.m. When President Trump’s attorney arrived to review the boxes in the storage room, Mr. Nauta escorted him there, and, the indictment says, neither Mr. Nauta or President Trump told the attorney about the remaining boxes still in the residence.
Looks pretty damning, right? However, I would suggest that “boxes aren’t documents,” and absent other evidence, one might argue that the boxes remaining in the residence had been reviewed, and contained no responsive documents, which is why they weren’t moved back to the storage room. The reason prosecutors would like us to assume there were responsive documents in the boxes in the residence on June 2, 2022 is because the FBI found such documents in the residence when they conducted their raid about 2 months later, on August 8, 2022.
72. Earlier that same day [June 3], NAUTA and others loaded several of TRUMP's boxes along with other items on aircraft that flew TRUMP and his family north for the summer.
(¶72, p. 26)
Has the FBI searched Bedminster? As I mentioned earlier, reportedly not. Yet evidence from the indictment, namely the reported discussion and recording concerning classified documents at Bedminster, would seem to show that there could be additional documents there, and prosecutors seem to want readers to draw that inference in this mention of "several of TRUMP's boxes" being loaded "on [an] aircraft that flew TRUMP and his family north for the summer." Nor are the documents discussed in the Bedminster conversations (the presumed Iran attack plan, and classified map of what may be Afghanistan), part of any of the counts in the indictment.
So about that FBI raid…
75. During the execution of the warrant at The Mar-a-Lago Club, the FBI seized 102 documents with classification markings in TRUMP's office and the Storage Room, as follows:
(¶75, p. 27)
How did documents having classified markings end up back in the storage room by August 8 after Attorney 1's search there on June 2? Are there any video recordings showing boxes or documents being returned from the residence (or anywhere else) to the storage room following Attorney 1's search? It should be noted that none of the documents found by the FBI in the raid were found with Trump's attorneys present, though President Trump has claimed to have video surveillance recordings of the FBI search (presumably from the same Mar-A-Lago surveillance cameras used by the government to show movement of the boxes of records).
At the time the Mar-A-Lago search warrant and accompanying affidavit of probable cause was released, several legal observers said that the search warrant’s scope violated the “particularity” requirement of the 4th Amendment:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
(Fourth Amendment, U.S. Constitution, emphasis added)
The warrant sought not just documents containing national defense information, or classification markings, but “[a]ny government and/or Presidential Records created between January 20, 2017, and January 20, 2021” —President Trump’s entire term of office. Reportedly, a number of items, including President Trump’s passports, personal medical records, tax records, attorney-client communications, and even his will, were seized by the FBI. Even though these sensitive documents were eventually returned, their seizure illustrated the broad scope of the warrant, and that it violated President Trump’s Fourth Amendment rights.
As former federal prosecutor-turned defense attorney William Shipley argues, a motion to suppress the evidence obtained in the FBI raid should be one of the pretrial motions filed by President Trump’s attorneys due to the overbreadth of the search warrant.
Without the evidence illegally seized by the FBI, 21 of the 31 counts of “unauthorized” retention of documents containing national defense information would be knocked out, leaving only the counts regarding 10 documents produced in response to the grand jury subpoena. Without the evidence seized in the FBI raid, the remaining counts related to conspiracy, obstruction of justice and false statements also become more difficult to prove.
The remaining counts...
I’m not going to get into the weeds of these charges, other than to say that the foundation for them requires there to be an underlying crime. Former Judiciary Committee staffer and Justice Gorsuch law clerk Mike Davis (@mrddmia) points to a 2019 Department of Justice Office of Legal Counsel opinion which says that “it would be rare for federal prosecutors to bring an obstruction prosecution that did not itself arise out of a proceeding related to a separate crime.” (p.3)
The lower federal courts, and ultimately the U.S. Supreme Court, will need to consider the question of whether or not the Espionage Act can be used against a former President for retaining records of his own administration where the Presidential Records Act is the governing statute, has no criminal enforcement provisions, and by its terms contains a statutory guarantee of access to all records by the former President (or his designated representative(s)), whether classified or not, if the records were in the custody of the National Archives and Records Administration. Also they will need to consider whether what the Congressional Research Service has called the President’s “high degree of discretion over what materials are to be preserved under the PRA”5 includes keeping copies of classified documents, or documents containing ‘national defense information” as “personal records.” Further, whether the power entrusted to the President under the Constitution as Commander-In-Chief and as the original classification authority requires that he conform to any particular formal procedures in order to exercise the power of declassification, or does it, as Justice Blackmun stated in Dept. of the Navy v. Egan (1988), “exist quite apart from any explicit congressional grant” (that is, he needn’t ask permission of Congress, or members of the “intelligence community” in order to exercise it), in keeping with separation-of-powers principles, and the structure of the Constitution which makes the President the embodiment of the entire executive power.
Count 32 charges President Trump and Mr. Nauta with Conspiracy To Obstruct Justice under 18 U.S.C. §1512(k), which provides that
(k) Whoever conspires to commit any offense under this section shall be subject to the same penalties as those prescribed for the offense the commission of which was the object of the conspiracy.
The offenses listed for this count are 18 U.S.C. §1512(b)(2)(A), Withholding a Document or Record; and 18 U.S.C. §1512(c)(l). Corruptly Concealing a Document or Record (see below).
Count 33 charges President Trump and Mr. Nauta with Withholding a Document or Record under 18 U.S.C. §§ 1512(b)(2)(A), which provides that
(b) Whoever knowingly uses intimidation, threatens, or corruptly persuades another person, or attempts to do so, or engages in misleading conduct toward another person, with intent to- […]
(2) cause or induce any person to-
(A) withhold testimony, or withhold a record, document, or other object, from an official proceeding; […]
shall be fined under this title or imprisoned not more than 20 years, or both.
Count 34 charges President Trump and Mr. Nauta with Corruptly Concealing a Document or Record under 18 U.S.C. §§ 1512(c)(l), which provides that
(c) Whoever corruptly- […]
(1) alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with the intent to impair the object's integrity or availability for use in an official proceeding […]
shall be fined under this title or imprisoned not more than 20 years, or both.
Count 35 charges President Trump and Mr. Nauta with Concealing a Document in a Federal Investigation under 18 U.S.C. §§1519, which provides that
Whoever knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States or any case filed under title 11, or in relation to or contemplation of any such matter or case, shall be fined under this title, imprisoned not more than 20 years, or both.
Count 36 charges President Trump and Mr. Nauta with a Scheme to Conceal under
18 U.S.C. §§1001(a)(l), which provides that
(a) Except as otherwise provided in this section, whoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully-
(1) falsifies, conceals, or covers up by any trick, scheme, or device a material fact
shall be fined under this title, imprisoned not more than 5 years or, if the offense involves international or domestic terrorism (as defined in section 2331), imprisoned not more than 8 years, or both.
Count 37 charges President Trump with making False Statements and Representations under 18 U.S.C. §§ 1001(a)(2), and Count 38 charges Mr. Nauta with making False Statements and Representations under 18 U.S.C. § 1001(a)(2), which provides that
(a) Except as otherwise provided in this section, whoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully-
(2) makes any materially false, fictitious, or fraudulent statement or representation;
shall be fined under this title, imprisoned not more than 5 years or, if the offense involves international or domestic terrorism (as defined in section 2331), imprisoned not more than 8 years, or both.
While this case is serious, particularly as regards these latter counts, so are the serious and unprecedented constitutional and legal questions this prosecution raises for the presidency, the destabilization and criminalization of American politics, selective prosecution and a two-tiered system of justice, and the use of indictments to interfere in an upcoming presidential election. The stakes could hardly be higher.
At least the indictment is now a public record. Let’s hope the secrecy stops here.
—end—
As of yet, I haven’t been able to find any documentation of this NARA threat in June 2021 to refer the missing records matter to the Department of Justice. The DOJ does do civil litigation as well, so its not clear whether the warning to President Trump’s attorneys the indictment mentions in ¶37 was of possible criminal charges or civil litigation, though given how the dispute with NARA has progressed, it seems likely it’s the former.
Independent journalist Paul Sperry noticed (for what it’s worth) that the indictment misstates President Trump’s comments in ¶6(a), in comparison to the transcript quoted later in ¶33-34.
Here, because the Presidential Records Act places custody of presidential records constructively with NARA, the requirement of "in the custody of the agency" is probably met under this provision, even though the records at Mar-A-Lago weren't in NARA's physical custody. So NARA perhaps could have sued to reverse what it claims was “actual …unlawful removal,” so long as the records were designated as “presidential records,” the category that NARA is responsible for. If the former President had deemed them to be “personal records” during his term of office, existing case law (while thin) suggests that NARA would have no legal recourse to recover them.
I’m not entirely sure who “Trump Attorney 1” is in the indictment, but I suspect it’s M. Evan Corcoran, who was compelled to testify against President Trump to the grand jury under the “crime/fraud” exception to attorney-client privilege. In the FBI raid on Mar-A-Lago, federal prosecutors may have also obtained privileged attorney-client communications, similar to how the FBI previously raided Trump' counsel Rudy Giuliani and obtained such records. No privileged records for you, Bad Orange Man!
See note 5 of Part 1 of this column, p.4.
"compelled to testify against President Trump to the grand jury under the “crime/fraud” exception to attorney-client privilege"
If we find in the end that neither crime nor fraud was committed, do Corcoran or Trump have any recourse about the violation of attorney-client privilege? I would love to see some FBI, DOJ and the prosecutor spend time behind bars for violating Trump's rights.
" Further, whether the power entrusted to the President under the Constitution as Commander-In-Chief and as the original classification authority requires that he conform to any particular formal procedures in order to exercise the power of declassification, "
Has Trump argued that he declassified any of these documents? He had that power. Classification was solely under his authority (other than nuclear weapons info under Atomic Energy Act). There's no law that I am aware of that prescribes the means of declassification. History is on his side. LBJ made a public comment about the value of 'space photography' when reconnaissance satellites were still highly classified. Nothing happened, because (a) he was the president and (b) LBJ was both prickly and vengeful. The simple fact that 'space photography' was classified solely under Johnson's authority meant that Johnson could say whatever he wanted about it, declassifying his own statement by stating it.