ANALYSIS: Analyzing the Trump Indictment

Special counsel Jack Smith speaks at the Department of Justice in Washington on June 9, 2023. (Mandel Ngan/AFP via Getty Images)

News Analysis

On June 9, 2023, special counsel Jack Smith unveiled a 38-count indictment of former President Donald Trump and Waltine Nauta, a personal valet who works at Trump’s Mar-a-Lago estate. The first 31 counts relate to Trump alone and involve charges under the Espionage Act.

Of the remaining counts, five charge Trump and Nauta jointly with regard to the concealing of documents subject to a grand jury subpoena. The final two counts, one of which charges Trump and the other Nauta, pertain to making false statements. In total, Trump is charged with 37 counts in the indictment and Nauta with six counts.

Much attention has been focused on the 31 counts charged under the Espionage Act. Contrary to what the name Espionage Act indicates, most of the Act is unrelated to espionage. Trump has been charged under section e of 18 U.S.C. 793 of the Act, which makes it unlawful to willfully retain national defense information and to fail “to deliver it to the officer or employee of the United States entitled to receive it.” This section of the Espionage Act does not require that Trump share national defense information with anyone, nor even that he has the intention to share it with anyone. It merely requires that he have unauthorized possession of national defense information and that he failed to return it. It also does not explicitly require that the information be classified.

Espionage Act Charges

Trump is charged with having retained and not returned 31 separate documents containing, among others, information allegedly “concerning nuclear capabilities of a foreign country” and information “concerning military contingency planning of the United States.” Smith alleges that, on at least two occasions, Trump shared aspects of national defense documents he improperly retained with outsiders. In the first instance, in July 2021, Trump is supposed to have shared the information with an author who was at the time writing a book and who, with Trump’s apparent approval, was recording their conversation.

A short transcript of the conversation is cited by Smith and suggests that Trump shared military information with the author because he wanted to debunk public claims made by a senior military official against Trump. That official is reported to be Gen. Mark Milley, chairman of the Joint Chiefs of Staff. The transcript cites Trump as telling the author, “This is off the record,” “except it is like, highly confidential,” before adding “Secret. This is secret information.” With respect to the information’s status, Trump is quoted as saying: “See as president I could have declassified it … Now I can’t, you know, but this is still a secret.”

In a second instance of sharing national defense information, Smith alleges that in August or September 2021, Trump showed a classified map concerning an ongoing conflict in a foreign country to a representative of his political action committee. The representative is not named but Smith alleges that Trump told the representative that he should not be showing him the map and also not to get too close. While the representative appears to be cooperating with Smith, there is no suggestion that there is a recording of this second incident.

While these two incidents look very bad for Trump, there is no concrete evidence that Trump showed the parties involved actual national defense information as opposed to just boasting. That said, Smith does not appear to have included the incidents in the indictment for legal reasons—the Espionage Act does not require that the information was shown to anyone—but rather to shape the public narrative into one of Trump being reckless.

It is also noteworthy that Smith did not charge Trump under the Presidential Records Act (PRA), nor did he cite the PRA, which requires that presidential records be turned over to the National Archives and Records Administration (NARA) at the end of a presidential administration. Trump is alleged to have taken these records to his Mar-a-Lago estate when he left the White House. In January 2022, after receiving demands from NARA, Trump returned 15 boxes of documents to NARA. These boxes allegedly contained 197 documents that were marked classified.

On Feb. 9, 2022, NARA reported the presence of the 197 classified documents to the Department of Justice (DOJ). This led to the FBI opening an investigation of Trump, which in turn led a federal grand jury to issue a subpoena for any remaining documents with classification markings that may have still been in Trump’s possession.

A point that has been largely overlooked is that the grand jury subpoena was for documents with “classification markings,” meaning that the actual classification status was irrelevant to what the subpoena sought. This appears to have been a very deliberate choice of words by the DOJ as it negated possible claims by Trump that the documents had been declassified.

While Trump may have defenses for the Espionage Act charges—for instance, by claiming that certain documents did not need to be returned under the PRA, that he was authorized to have the documents, or that NARA itself was involved in packing boxes at the White House that were then moved to Mar-a-Lago—the remaining charges, all of which pertain to Trump’s response to the grand jury subpoena, are far more perilous for Trump.

As if to underscore this point, Smith has not charged Trump with any wrongdoing for the timeframe before the grand jury subpoena was issued on May 11, 2022. Although we do not know what would have happened had Trump complied with NARA’s request and returned all presidential records between when NARA first demanded them in May 2021 and when the subpoena was issued a year later, the implication is that Trump could have avoided legal problems had he done so.

Alleged Process Crimes

The most serious legal jeopardy Trump faces relates to alleged process crimes in connection with the grand jury subpoena. Process crimes are crimes against the judicial process, as opposed to underlying crimes. Put another way, the process crimes are about how Trump responded to the subpoena and not about whether or not Trump retained classified documents, nor about whether he shared classified information with anyone.

Specifically, Trump and his valet, Nauta, are charged with conspiracy to obstruct justice, withholding a document or record, corruptly concealing a document or record, concealing a document in a federal investigation, a scheme to conceal, and making false statements. Because these are all process crimes, Trump cannot avail himself of defenses such as that he had the right to retain documents under PRA or that he had declassified all pertinent documents. None of those arguments are relevant since what Trump is charged with are his actions in response to the subpoena.

According to Smith, two lawyers for Trump, including Evan Corcoran, told Trump on May 23, 2022, that in order to comply with the subpoena, they would need to search all of the boxes sent to Mar-a-Lago from the White House. According to Smith’s indictment, Trump allegedly tried to explore ways of circumventing the subpoena, such as ignoring it or simply claiming that there were no other documents. However, Trump ultimately appears to have agreed to comply with the subpoena and instructed Corcoran to conduct a search of the boxes, which were in a storage room at Trump’s Mar-a-Lago estate.

Smith, however, alleges that before Corcoran had a chance to search the storage room, Trump directed Nauta to ferry boxes of documents between the storage room and Trump’s private residence. According to Smith, Trump misled Corcoran “by moving boxes that contained documents with classification markings so that [Trump’s attorney] would not find the documents and produce them to a federal grand jury.” Smith alleges that the purpose of what Trump was doing was “to keep classified documents [he] had taken with him from the White House and to hide and conceal them from a federal grand jury.”

Smith’s theory is that Trump removed boxes from the storage room so that Corcoran could not search them and so that relevant documents would never be returned to NARA. Smith claims that a total of 64 boxes were moved from the storage room to Trump’s residence but only around 30 boxes were returned to the storage room. The net effect, according to Smith, was that Corcoran would not, and indeed could not, have found many of the documents with classification markings that were responsive to the grand jury subpoena.

On June 2, 2022, Corcoran conducted a two-and-a-half-hour search of the storage room, during which he found 38 documents with classification markings. On the following day, Corcoran returned those documents to NARA via the FBI.

Subpoena Certification

While it was Corcoran that conducted the search, he did not sign the subpoena certification himself. A subpoena certification is meant to certify that a subpoena has been complied with. Instead, Corcoran asked another lawyer for Trump, Christina Bobb, to come to Mar-a-Lago to sign the certification. According to Smith, Bobb was brought in at the last minute, had not performed any search of the boxes, had not reviewed the subpoena, and had also not reviewed the 38 documents recovered by Corcoran. It is not known why Bobb agreed to sign the certification under penalty of perjury when she apparently knew nothing about the matter.

Specifically, Bobb attested to the fact that “A diligent search was conducted of the boxes that were moved from the White House to Florida” when, according to Smith, some of those boxes were never searched as they had been moved to Trump’s residence. Bobb’s claim that “Any and all responsive documents accompany this certification” was also shown to be incorrect after the FBI apparently found an additional 102 documents with classification markings during the Aug. 8, 2022, Mar-a-Lago raid.

Consequently, Smith has now charged Trump with various concealment offenses with respect to moving the boxes around, as well as with lying to the grand jury and the FBI because he allegedly knew that the certification signed by Bobb was untrue. According to Smith, “Trump knew, because Trump had directed that boxes be removed from the Storage Room before [Corcoran] conducted the June 2, 2022 search for documents with classification markings, so that [Corcoran]’s search would not and did not include all of Trump’s boxes that were removed from the White House.”

As for Nauta’s role in the alleged concealment, it is not clear from the indictment how or why Nauta would have known about the grand jury subpoena or the incorrect subpoena certification. But based on the final count of the indictment, which accuses Nauta of lying to the FBI when he claimed he had not moved any boxes to Trump’s residence, it appears that Smith surmises that Nauta must have been aware of the alleged scheme. Assuming that Smith has security camera footage of Nauta moving boxes from the storage area to Trump’s residence, Nauta appears to have little in the way of defenses, at least against the charge of lying to the FBI.

Trump is in an arguably better position than Nauta, as he can, and probably will, blame his attorneys. Unlike Nauta, Trump did not speak to the FBI himself. Trump could argue that his lawyers handled the entire matter and that he did not know what the subpoena demanded, nor what the subpoena certification stated. In fact, it is unlikely that Trump had any role in drafting or approving the language used in the certification.

Trump could further argue, as he appears to have already done on Fox News, that he had the right to look through the boxes that were under subpoena. He could, for instance, say that he was merely recovering personal items and that he did not remove any documents with classification markings. While Smith appears to know from security camera footage how many boxes were removed from and returned to the storage area, it is unlikely that he knows what, if anything, was taken from those boxes.

Trump could claim that Corcoran never explained the parameters of the subpoena and that it was Corcoran’s task to conduct a diligent search, not Trump’s. Similarly, he could argue that Corcoran should not have caused the certification to be signed by Bobb without searching other parts of Mar-a-Lago. He could even argue that Corcoran’s decision to bring in Bobb to carry out certification at the last minute is an implied admission of wrongdoing on Corcoran’s part.

We do not know what Corcoran will do. He might take all the blame himself or he could agree with Smith that he was misled by Trump. Ultimately, Trump’s fate with respect to the alleged process crimes appears to hinge on what Corcoran will tell the jury and whether the jury will believe Corcoran or Trump.

What is indisputable is that Trump is in real legal jeopardy. Unlike the flimsy charges brought by Manhattan district attorney Alvin Bragg in April, the charges brought by Smith are serious and appear to be backed by ample documentary evidence. There is also the matter of Nauta, who may decide to testify against Trump in exchange for leniency. This prospect is heightened by the fact that Nauta appears to have no defense against the charge of lying about moving boxes.

While these events have now placed Trump in legal peril, it should be borne in mind that no official has ever been pursued with the same zeal as Trump. For instance, it wasn’t until years after he left the office of the vice president that NARA became interested in recovering President Joe Biden’s classified documents, some of which were later found in his Delaware garage. Similarly, no action was ever taken against former Secretary of State Hillary Clinton despite the fact that a trove of documents with classification markings was found on her private email server. At the time, then-FBI Director James Comey infamously claimed that Clinton was “extremely careless” but that “no reasonable prosecutor would bring such a case.” It is beyond doubt that Trump is treated by a very different standard.

The Legal Analysis of the Trump Indictment is the topic of an episode of “Truth Over News” that will air on EpochTV on June 14, 2023.

Views expressed in this article are opinions of the author and do not necessarily reflect the views of The Epoch Times.