Indicted Again: Breaking Down the Classified Documents Case Against Donald Trump

Elections & Politics Policy Brief #82 | By: Arvind Salem | June 26, 2023
Photo taken from: politico.com

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Policy Summary

On June 8, 2023, Donald Trump became the first president in history to face federal criminal charges. The 37 federal felony charges stem from his alleged mishandling of classified documents from his presidency and obstruction of justice when he was investigated.

The indictment claims that boxes of classified information were stored in Mar-a-Lago, with a picture in the indictment showing boxes stacked in rows on the ballroom’s stage. The indictment also argues that Trump knew this information was classified but disregarded this fact, as shown by a July 2021 meeting in Bedminster, in which he showed off what he knew to be classified military information. 

Prosecutors allege that on an audio recording, Trump said that he knew the information was classified and he was showing it to people who didn’t have appropriate clearance and that he could’ve declassified the information as President but didn’t. This occurred as the National Archives made repeated demands for Trump’s presidential records, after realizing that many documents from Trump’s presidency were missing. The National Archives started these requests in May 2021 and informed Trump that they would refer the matter to the Justice Department in June 2021. In January 2022, Trump turned over 15 boxes to the National Archives found to contain 197 documents with classified markings. The National Archives expected to find presidential records, but did not expect to find classified documents and thus referred the matter to the Justice Department in February 2022. The Justice Department opened an investigation roughly a month later. The Justice Department seeked access to the documents that Trump provided theNational Archives, but Trump’s lawyers repeatedly ask for extensions.

Two months later, on May 11, 2022, a grand jury issued a subpoena for all classified materials in Trump’s possession. Before his legal team could search Mar-a-Lago to find classified materials in compliance with the subpoena, Trump had his assistant, Walt Nauta, move 64 boxes away from the storage room, eventually moving 30 of them back to the storage room, resulting in the lawyers being unable to access 34 boxes and unwittingly lying to the Justice Department when they certified that they had conducted a search and delivered all classified materials. This is also a reason why Nauta was named a co-conspirator in the indictment for many of the charges. Nauta repeatedly told the FBI he had no knowledge of the location of the boxes, which prosecutors allege was untrue as they believe he moved the boxes himself. The Justice Department, suspecting that there were additional classified materials being stored at Mar-a-Lago, successfully obtained a warrant and seized 102 classified documents.

The Justice Department brought 37 felony charges against Trump: charges 1-31 stem from his alleged storing of 31 classified documents at Mar-a Lago, charge 32 is conspiracy to obstruct justice by allegedly attempting to keep the classified documents out of the grand jury, charge 33 is withholding a document or record by allegedly moving the boxes of classified documents so the attorneys could not present them to a grand jury, charge 34 is corruptly concealing a document or record pertaining to the alleged attempts to hide the boxes of documents from the attorney, charge 35 is concealing a document in a federal investigation pertaining to allegedly hiding the documents and causing a false certificate to be submitted to the FBI, charge 36 is a scheme to conceal by allegedly hiding continued possessions of the documents from the FBI and grand jury, charge 37 is false statements and representations stemming from statements that Trump allegedly made which caused his lawyers to make false statements to the FBI. Charges 32-36 name Nauta as a co-conspirator and he is separately charged in another count accusing him of lying to the FBI in a voluntary interview.

Policy Analysis

Trump has fairly limited options for his defense in this case, especially in relation to the cases he’s fought before. His three main options appear to be he declassified the documents before leaving office, he is a victim of selective prosecution, or at least some form of prosecutorial misconduct, and he could fight key evidence that comes from his lawyers on the grounds of attorney-client privilege.

As the investigation has proceeded, Trump, his lawyers, and his aides have all argued that the documents he keeps are his personal records that he has a right to under the Presidential Records Act. The Presidential Records Act, enacted in 1978, four years after President Nixon’s resignation, established that presidential records are government property and do not belong to the president. According to  Jason R. Baron, former director of litigation at the National Archives, “Presidential records are records in the White House relating to the constitutional, statutory or other official or ceremonial duties of the president” and personal records, such as diary entries, that are not used for official government business are excluded from the definition of presidential records. Trump was also responsible under the act for separating his personal records from presidential records and handing his presidential records over to the National Archives.

However, this argument has been widely debunked and recognized as an extremely tenuous legal argument. The problem is that many of Trump’s documents were given to him by agencies and other government institutions and  are property of the federal government under the Presidential Records Act and are not Donald Trump’s personal records. Many people, including former Attorney General Bill Barr have completely dismissed this argument. Moreover, the prosecution is not charging him for violating the Presidential Records Act, since the Act includes no enforcement mechanism, and is instead being charged under the Espionage Act for illegally retaining  national defense information. A related argument is that Trump said he had unlimited power to declassify the documents as President and that he did so. However, Trump admitted on a recording that at least some of the documents he showed to people were classified and that he didn’t declassify them as president. 

Another one of Trump’s options would be claiming that he is a victim of selective prosecution since he was charged for the mishandling of classified documents, but other officials such as Hillary Clinton and Mike Pence were not charged for a similar offense. However, those cases have significant differences to this case. Both Clinton and Pence largely cooperated with the government, whereas Trump made significant attempts to obstruct the investigation. For Clinton, she mostly cooperated by turning over 30,000 work-related emails to the FBI and instructed an employee to delete any emails older than 60 days from her personal account. Later, an employee of the company that managed Clinton’s servers realized that the emails hadn’t been deleted and proceeded to delete them using a software program called Bleachbit the same month as the House was investigating Clinton for using her personal email for work-related matters. In further investigations, the FBI found no evidence that the emails were deleted in an effort to conceal them. 

For Pence, he had much less classified material at his house (around a dozen documents were found at his home) and the FBI consensually searched his home and found one more. Pence also cooperated fully with the authorities, whereas President Trump stored hundreds of documents containing extremely sensitive information about the country’s military plans and nuclear arsenal and did not cooperate with the authorities to return them.

Trump is also likely to attempt to throw out evidence provided by his lawyer M. Evan Corcoran to the prosecution by arguing attorney-client privilege. The evidence, specifically notes of their meetings that Mr. Corcoran recorded on his iPhone, is some of the prosecution’s strongest evidence and it shows Trump attempting to avoid complying with the subpoena. However, the prosecution argued that the evidence could be used, by using an exception to attorney-client privilege known as the crime-fraud exception. The crime-fraud exception can be invoked when there is reason to believe that legal services have been used to further a crime, which prosecutors will argue occurred when Trump misled Corcoran about complying with the subpoena.

However, a potential bright spot for Trump could be the assignment of one of his appointed judges, Judge Aileen M. Cannon, to the case. Judge Cannon has a history of issuing abnormally favorable decisions to President Trump, so favorable that one was unanimously reversed by the conservative Court of Appeals for the 11th Circuit. Judge Cannon set the trial date for August 14th, but it is extremely unlikely to start by then. Trump’s team is likely to have a bevy of pretrial motions, such as selective prosecution and motioning to throw out evidence from Corcoran as mentioned earlier, which will take time to argue and rule on. Additionally, Prosecutor Jack Smith requested to delay the trial by around 4 months: from August 14th to December 11th, arguing that both sides need more time to prepare and the defense does not object to moving the trial date. However, Judge Cannon is clearly trying to ensure a speedy trial by setting a deadline for July 24th for filing pre-trial motions, although she has not yet ruled on the motion to delay the trial.  Additionally, since this case deals with classified information, Trump’s lawyers need to obtain appropriate security clearances to handle that information. They started that process quite recently, around a week before at the time of writing, but the process can take months, adding another reason why both sides argue that the trial should be delayed.

Prosecutor Jack Smith has also recently turned over his first batch of evidence to the Trump legal team to review, including evidence from the subpoena and search warrants,  transcripts of grand jury testimony, witness interviews, and excerpts of closed-circuit television footage.



Engagement Resources

Winred

Winred allows people to donate money to Republican candidates to support their campaign. Readers interested in supporting President Trump or other members of the Republican party may find that this is a useful way to convey their support and help the Republican cause.

Brennan Center

The Brennan Center for Justice at NYU Law School is an organization that promotes reforms to American democracy and argues against many practices today such as gerrymandering and mass incarceration. Readers who are concerned about the health and protection of our democracy in light of this indictment may wish to support the Brennan Center and help it advance its proposed reforms.

 The Conservative Political Action Coalition

The Conservative Political Action Coalition (CPAC) is a conservative advocacy organization that seeks to promote conservatism, which it defines as popular sovereignty, and enact conservative policies.  Readers against this indictment or wishing to help promote conservative values and policies may wish to give to this organization or get involved in their work.

ActBlue

ActBlue allows people to donate to a host of Democratic organizations, candidates, and causes. Readers are likely to find organizations that are supporting the Trump indictment on this site and may wish to donate money to further that cause.

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