Donald Trump's federal indictment sheds light on two crucial questions about the presidential records he took with him when he left office in January 2021: How sensitive was this material, and what was Trump's intent in retaining it? Both points are relevant to the criminal charges that were announced last week.
Trump faces 31 counts of willfully retaining national defense information, each of which corresponds to a specific document described in the indictment. The relevant statute, 18 USC 793, covers "information relating to the national defense" that "the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation."
According to the indictment, all of the listed documents fell into that category. All but one of them were marked as "secret" or "top secret," and many of them bore additional labels, such as "SI" (special intelligence), "SPECIAL HANDLING," and "NOFORN" (not releasable to foreign nationals). But classification markings are neither necessary nor sufficient to establish that a document qualifies as national defense information under 18 USC 793.
Notably, one of the 31 records mentioned in the indictment, described as an "undated document concerning military contingency planning of the United States," bore "no marking." The Justice Department nevertheless alleges that it "could be used to the injury of the United States" or the advantage of a foreign country. Conversely, given the widely recognized problem of overclassification, a document marked as "secret" or "top secret" might not be covered by 18 USC 793, either because it never should have been classified or because the justification for that decision no longer applies.
The soundness of classification decisions is hard to assess without details that we are not allowed to know. But the indictment's general descriptions at least make it plausible that some of the documents Trump retained were deemed secret for good reason. They included, for example, a "document dated June 2020 concerning nuclear capabilities of a foreign country"; a "document dated October 4, 2019, concerning military capabilities of a foreign country"; an "undated document concerning military attacks by a foreign country"; an "undated document concerning military capabilities of a foreign country and the United States"; a "document dated January 2020 concerning military options of a foreign country and potential effects on United States interests"; and a "document dated November 7, 2019, concerning military activity of foreign countries and the United States."
More generally, the indictment says the documents that Trump kept "included information regarding defense and weapons capabilities of both the United States and foreign countries; United States nuclear programs; potential vulnerabilities of the United States and its allies to military attack; and plans for possible retaliation in response to a foreign attack." It adds that "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 collection methods."
On the face of it, it seems plausible that careless handling of such documents might expose information, including information about intelligence sources, that could undermine national security. And we know that Trump was, at the very least, careless. That much is reflected in the indictment's photographs of document boxes that were kept in unauthorized and unsecured locations at Mar-a-Lago, including a storage room, a bathroom, an office, a bedroom, and the stage of a ballroom where "events and gatherings took place."
But did Trump "willfully" retain national defense information? "We have seen absolutely no indication that President Trump knowingly possessed any of the marked documents or willfully broke any laws," Trump's lawyers said in an April 26 letter to the House Intelligence Committee. "Rather, all indications are that the presence of marked documents at Mar-a-Lago was the result of haphazard records keeping and packing by White House staff and [the General Services Administration]."
Such sloppiness could explain the presence of secret material in the boxes shipped to Mar-a-Lago. But the indictment presents substantial evidence that Trump knew he had classified documents and deliberately resisted the government's efforts to recover them.
In July 2021, Trump was interviewed at his golf club in Bedminster, New Jersey, as part of the research for former White House Chief of Staff Mark Meadows' memoir. Trump was irked by press reports that Joint Chiefs of Staff Chairman Mark Milley had restrained him from taking military action against Iran toward the end of his presidency. To rebut that narrative, Trump presented what he described as Milley's "plan of attack" for Iran.
"He said that I wanted to attack Iran," Trump said, according to the indictment, which quotes an audio recording of the Bedminster interview. "Isn't it amazing? I
have a big pile of papers, [and] this thing just came up. Look. This was him. They presented me this—this is off the record, but—they presented me this. This
was him. This was the Defense Department and him."
Trump described the document as "highly confidential" and "secret information." As president, he added, "I could have declassified it," but "now I can't," so "this is still a secret."
A month or two later, the indictment says, Trump met with a representative of his political action committee at the Bedminster club. Trump "commented that an ongoing military operation in Country B was not going well." Then he allegedly "showed the PAC Representative a classified map of Country B and told the PAC Representative that he should not be showing the map to the PAC Representative and to not get too close." The indictment notes that "the PAC Representative did not have a security clearance or any need-to-know classified information about the military operation."
The indictment contrasts Trump's sloppy handling and gratuitous use of classified records with his prior statements about the importance of guarding state secrets. During his 2016 campaign, for example, Trump repeatedly slammed Hillary Clinton for her careless handling of emails containing classified information when she was secretary of state. He promised that he would be much more careful.
"In my administration, I'm going to enforce all laws concerning the protection of classified information," Trump said in August 2016. "No one will be above the law." The next month, he warned that "we can't have someone in the Oval Office who doesn't understand the meaning of the word confidential or classified." He promised to "enforce all classification rules" and "enforce all laws relating to the handling of classified information." He said he would provide "the best protection of classified information."
In February 2017, then-President Trump decried the "illegal process" by which reporters gain access to classified information. "The press should be ashamed of themselves," he said. "But more importantly, the people that gave out the information to the press should be ashamed of themselves. Really ashamed."
Although Trump was well aware of the restrictions on access to classified documents, in other words, he flouted the rules he said were essential to protecting national security. According to the indictment, Trump also impeded the Justice Department's attempts to recover those documents.
After the National Archives and Records Administration discovered classified material in 15 boxes that Trump surrendered a year after leaving office, the Justice Department launched an investigation. That led to a May 11, 2022, grand jury subpoena demanding the return of all documents with classification markings that remained at Mar-a-Lago.
Twelve days later, Trump met with two of his lawyers to discuss the subpoena. According to the indictment, notes taken by one of those lawyers, Evan Corcoran, indicate that Trump was inclined to defy the subpoena. In "sum and substance," the indictment says, he made comments like these:
"I don't want anybody looking through my boxes. I really don't. I don't want you looking through my boxes."
"What happens if we just don't respond at all or don't play ball with them?"
"Wouldn't it be better if we just told them we don't have anything here?"
"Isn't it better if there are no documents?"
Trump nevertheless agreed to let Corcoran look through the boxes in the Mar-a-Lago storage room on June 2. In the meantime, according to the indictment, Trump aide Walt Nauta, under his boss's direction, moved "approximately 64 boxes" from the storage room to Trump's residence at Mar-a-Lago. As of June 2, Nauta (who also was charged in last week's indictment) had returned "only approximately 30 boxes" to the storage room.
Corcoran's search of those boxes turned up 38 classified records, which he placed in a Redweld folder that he sealed with clear duct tape. While discussing where to store the folder until it could be delivered to the Justice Department, according to Corcoran, Trump "made a funny motion as though [he were saying,] 'Well, OK, why don't you take them with you to your hotel room, and if there's anything really bad in there, like, you know, pluck it out.' And that was the motion that he made. He didn't say that."
The next day, Corcoran asked another Trump lawyer, Christina Bobb, to sign a sworn certification saying that "a diligent search was conducted of the boxes that were moved from the White House to Florida"; that the search was aimed at finding "any and all documents that are responsive to the subpoena"; and that "any and all responsive documents accompany this certification." Bobb said those statements were "based upon the information that has been provided to me." She signed the statement as the "custodian of records" for Trump's office even though she had not reviewed the subpoena, had not participated in the box search, and had not examined the contents of the folder.
Corcoran gave that statement to the Justice Department when he surrendered the folder on June 3, 2022. But the FBI suspected, based partly on surveillance video that showed Nauta moving boxes around, that Trump had not delivered all of the documents covered by the subpoena. The FBI's August 8 search of Mar-a-Lago confirmed that suspicion, discovering 102 additional classified documents in the storage room and in Trump's office.
When the Justice Department revealed what had happened after it served the subpoena, it looked like Corcoran and Bobb had misled the government. Based on the evidence described in the indictment, however, it looks like Corcoran made a good-faith effort to comply with the subpoena but was frustrated by the movement of boxes, which Trump and Nauta did without notifying Corcoran.
Trump's response to the subpoena not only supports the charges related to willful retention of national defense information. It also supports the charge that he and Nauta conspired to obstruct justice. More specifically, they are accused of conspiring to "corruptly conceal a record, document, or other object from an official proceeding." The alleged conspiracy also involved "engag[ing] in misleading conduct toward another person and corruptly persuad[ing] another person to withhold a record, document, or other object from an official proceeding." Other charges against Trump and Nauta involve specific acts related to the conspiracy, including false statements to the FBI and obstructing a federal investigation by concealing documents.
Although we know more about the classified records than we did before, it remains unclear exactly how sensitive they were. But all of the charges against Trump involve conduct that goes beyond carelessness or negligence. Even if Trump initially removed classified documents from the White House by accident (as his lawyers have suggested), it is clear he eventually realized that purported error. But far from trying to correct it, he seems to have intentionally impeded the Justice Department's attempts to recover the records, which by his own account he viewed as his personal property.
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