The indictment alleges that, while out of office, Trump deliberately kept many documents involving military, nuclear, and intelligence secrets. It makes the case that he knew full well some of that information was classified.
It contains a wealth of evidentiary detail attesting to Trump’s intense interest in those documents, and his deep involvement in discussions about what to return to the government. And it recounts how Trump allegedly schemed to hide certain documents from his own attorneys and from the government.
Some of this evidence relies on a recording Trump’s own attorney Evan Corcoran made recounting the case so far. According to Corcoran, in discussions about what to return to the government, Trump asked him, “Isn’t it better if there are no documents?”
Overall, Smith’s team charged Trump with 37 counts, accusing him of unauthorized retention of defense information, conspiring to obstruct justice, withholding government documents, scheming to conceal information from a grand jury, and causing false statements to be made to the government. They also charged Trump’s personal aide Walt Nauta on six counts, accusing him of making false statements to the FBI and conspiring with Trump to conceal information.
“Our laws that protect national defense information are critical for the safety and security of the United States and they must be enforced,” Smith said in a public statement. “Violations of those laws put our country at risk.”
Some mysteries remain. The indictment does not seek to provide an explanation of Trump’s motives in holding on to these documents. What was he trying to do? And its descriptions of the documents themselves remain quite vague, since they are still classified — any details, such as the names of countries involved, are redacted.
Overall, though, the indictment appears formidable. We’re still a long way from any trial — which would take place in Florida under a potentially Trump-friendly judge — or conviction. But the charges add to Trump’s heightening legal jeopardy, with potentially more to come.
What documents did Trump keep?
Since the FBI’s search of Mar-a-Lago and the government’s claim they recovered over 100 classified documents there last year, one big mystery has been what, exactly, those documents were about.
Smith’s indictment didn’t exactly clear that up, but he offered more detail than we’ve had previously. He lists the following broad topic areas the documents cover:
- Defense and weapons capabilities of both the US and foreign countries
- US nuclear programs
- Potential vulnerabilities of the US and its allies to military attack
- Plans for possible retaliation in response to a foreign attack
That seems like pretty serious stuff the government would prefer not to have sitting around in Mar-a-Lago.
Smith filed separate charges against Trump for unauthorized retention of each of 31 documents, which each get a vague description.
Two of these descriptions specifically mention the word “nuclear.” Count 5 is a “document dated June 2020 concerning nuclear capabilities of a foreign country.” Count 19 is about an “undated document concerning nuclear weaponry of the United States.”
Twenty other document descriptions include the word “military.” For instance, Count 11 is about an “undated document concerning military contingency planning of the United States,” and several other descriptions are about “military capabilities” or “activity” of foreign countries. Other documents are from intelligence briefings about other countries.
There are hints about two more specific documents. One reportedly involves Trump’s attempts to dispute claims in the press by Joint Chiefs of Staff chair Mark Milley, that he stopped Trump from attacking Iran. In a recorded session talking with several people on July 21, 2021, Trump mentioned, “I have a big pile of papers,” went looking for something, and pulled out a document he said disproved Milley.
“Secret, this is secret information,” Trump said, per the indictment. “Look, look at this. You attack, and —” Later, he mused that, “as president, I could have declassified it,” but “now I can’t.” He added: “This is still a secret ... Isn’t that interesting?”
Later, the indictment alleges, Trump commented to a staffer of his political action committee that a military operation in a certain country was not going well, pulled out a classified map to show the staffer, and added that he shouldn’t be showing it. Per the timing — August or September 2021 — the country here could be Afghanistan.
Smith paints a picture of Trump being deeply interested in these documents
While most of the details of the documents themselves remain obscure, the indictment paints a detailed picture of Trump as being very involved with them — and with discussions about how to respond to the government’s requests to get those documents back.
Those requests first came through the National Archives in 2021. And the indictment describes how Nauta, Trump’s personal aide, brought Trump boxes to his residence to review. “He’s tracking the boxes, more to follow today on whether he wants to go through more today or tomorrow,” Nauta texted another Trump employee in January 2022. (When he was later interviewed by the FBI, Nauta falsely told them that he didn’t do any of this, the indictment alleges.)
Trump returned 15 boxes of documents to the National Archives in January 2022. In those boxes, the government found 197 documents with classification markings, and officials suspected Trump had more. So the Justice Department got involved, and in May 2022 they sent a grand jury subpoena to Trump’s office, requesting all documents with classification markings.
Trump then discussed how to respond with two of his attorneys, one of whom was Evan Corcoran. Corcoran later recorded a lengthy voice memo chronicling his work on the case, which Smith’s team obtained by citing the “crime-fraud exemption” to attorney-client privilege. (Basically, if you use your attorney to commit a crime, privilege doesn’t apply.) Corcoran describes how Trump said he didn’t “want anybody looking through my boxes,” how he suggested he should tell the government, “We don’t have anything here,” and how he asked, “Isn’t it better if there are no documents?”
Trump scheduled a date for Corcoran to search through all the other boxes in the storage room. But before that, per the indictment, Trump directed Nauta to remove 64 boxes from that room and bring them to his residence. Later, Nauta brought 30 boxes back to the storage room. The indictment implies a whole lot of material did not make it back.
Cocoran eventually searched the now-less-crowded storage room and found 38 classified documents there. Per his voice memo, when he discussed what to do with them, Trump “made a funny motion” that he took as an implication that “if there’s anything really bad in there, like, you know, pluck it out,” but “he didn’t say that.”
In June 2022, Trump’s attorneys submitted a statement to the government asserting they’d conducted a diligent search and returned all classified documents. But DOJ still didn’t believe them — and they were right not to, as the FBI’s August 2022 search of Mar-a-Lago proved. During that search, the FBI seized 102 documents with classification markings. Most of the charges against Trump that cite specific documents are from this batch.
The indictment does not present a theory of Trump’s motives
Since the public learned of this investigation after the Mar-a-Lago search last August, there’s been much speculation about exactly why Trump was so set on holding on to these documents.
The indictment does little to clear that up. It establishes that he kept the documents and that he was keenly interested in keeping them, but it doesn’t try to explain why. Perhaps prosecutors will present more of a theory about this at trial.
A report from the Washington Post last year claimed that investigators had determined that his motive was “largely his ego and a desire to hold on to the materials as trophies or mementos,” citing people familiar with the matter. The indictment does not outright back up that claim but it doesn’t present anything to disprove it, either.
As a result, some of Trump’s defenders are already coalescing around a defense that, hey, he wasn’t selling them or giving them away, so what’s the issue? (All the obstruction of the investigation would be, I guess, something like a harmless prank, in this thinking.)
First read of indictment and my reaction is “That’s it? The conspiracy is with the aide who moved the boxes? No documents were sold or given to third parties not in his close employ?” https://t.co/47bvO7H4yT— Hugh Hewitt (@hughhewitt) June 9, 2023
We don’t know why Trump wanted to keep the documents. But the indictment alleges in stark terms that Trump wanted to act as though the law didn’t apply to him. Turns out, under special counsel Smith, it did.