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Monday, June 12, 2023


Takeaways from the indictment of Donald Trump in the classified documents case 

 GUEST BLOG / By Tierney Sneed and Jeremy Herb, CNN--Special counsel Jack Smith returned a historic indictment against former President Donald Trump that was unsealed Friday, the first time that a former president has been charged with crimes in federal court. 

 Trump faces a total of 37 counts, including 31 counts of willful retention of national defense information. 

His aide, Walt Nauta, faces six counts, including several obstruction and concealment-related charges stemming from the alleged conduct. “We have one set of laws in this country, and they apply to everyone applying those laws, collecting facts, that’s what determines the outcome of an investigation,” Smith said in a short appearance in Washington, DC, on Friday. “Nothing more and nothing less.” 

 Trump indictment related to mishandling of classified documents 

The 49-page indictment included new details about how Trump allegedly took classified documents to Mar-a-Lago after leaving office in 2021 and resisted the government’s attempts to retrieve the classified materials. 

In his statement, Special Counsel Smith encouraged the public to read it “in full to understand the scope and the gravity of the crimes charged.” 

 Here are the key takeaways from the indictment: 

 Trump and Nauta face nearly a half-dozen charges relating to obstruction and concealment of documents in the Justice Department’s probe, which will help prosecutors make the argument that Trump’s alleged conduct went well beyond the classified document snafus involving President Joe Biden and former Vice President Mike Pence. 

 The indictment lays out how Nauta allegedly moved the boxes out of the storage room where a Trump attorney was set to search for classified materials in a response to a May 2022 subpoena, and how the aide only moved some of those boxes back before the attorney’s search. 

Prosecutors, pointing to phone calls and other evidence, allege that Nauta moved these boxes at Trump’s direction. 

 To bolster the narrative that Trump knew he was concealing materials that were being sought in a grand jury subpoena, the indictment points to a conversation Trump had with his attorneys about how to respond to the subpoena, in which Trump allegedly suggested that his team could not turn over the classified documents the subpoena demanded. “Wouldn’t it be better if we just told them we don’t have anything here?” Trump is alleged to have said. 

 After his attorney collected 38 records that would be turned over to the DOJ, the attorney discussed with Trump storing them in his hotel room. Trump, during the back and forth, made a “plucking motion,” the indictment said, which the attorney memorialized as meaning: “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.” 

 Trump showed classified documents to others on two occasions 

 The episodes described in the indictment suggest Trump knew the information was classified and highly sensitive and may help prosecutors explain to a jury why Trump’s alleged willful retention of national defense information is such a serious crime. 

 One of those occasions that Trump allegedly showed others classified records he took from the White House was a 2021 meeting in Bedminster, New Jersey, when Trump “showed and described a ‘plan of attack’ that Trump said was prepared by the Defense Department,” a meeting CNN first reported was captured on an audio recording. “Trump also said ‘as president I could have declassified it,’ and ‘Now I can’t, you know, but this is still a secret,’” according to the indictment. 

 According to prosecutors, in August or September 2021 Trump also showed a document at Bedminster to a representative of his political action committee: a classified map related to a military operation and “told the representative that he should not be showing it to the representative and that the representative should not get too close.’”

 The documents are extraordinarily sensitive 

The indictment says Trump retained documents related to national defense that were classified at the highest levels and some so sensitive they required special handling. That includes one Top Secret document, dated June 2020, “concerning nuclear capabilities of a foreign county” found at Trump’s Mar-a-Lago resort, according to the indictment. 

 This document was not only classified as “Top Secret” but included additional restrictions of “ORCON” and “NOFORN.” 

 Documents designated as ORCON cannot be disseminated outside of the department issuing it without approval. Those labeled NOFORN cannot be shared with foreign nationals.

 For the prosecution, the Justice Department has singled out 31 documents in particular for each of the 31 willful retention counts. Several of the records concern the military capabilities of various countries, with one of the records – marked as NOFORN – also including handwritten annotation in a black marker. 

 The materials include White House intelligence briefings “related to various foreign countries.” One record relates to the “timeline and details of attack in a foreign country,” while another December 2019 document concerns “foreign country support of terrorist acts against the United States interests.” 

 Nationally security law experts previously told CNN that when prosecutors are investigating a classified materials case, they look for so-called “Goldilocks documents” that are sensitive enough to drive home the seriousness of the crime but not so sensitive that they cannot be used in a trial. 

 Pictures are worth 1,000 words 

 In addition to the timeline in the charging papers – sometimes broken down by the minute explaining how boxes with classified information moved around Trump’s Florida resort after Trump allegedly brought them there from the White House – the indictment includes six pictures that allowed prosecutors to vividly make their case that classified documents had been moved all over Mar-a-Lago. 

 The photos show boxes in a ballroom, a basement storage room – even in a bathroom and shower inside the Mar-a-Lago club’s Lake Room, according to the indictment. In one photo, there are boxes of spilled documents on the floor. The indictment states that Nauta found the contents of several boxes spilled on the floor of the storage room in December 2021, including a “Five Eyes” classified document, which means intelligence only shared among five countries: the US, United Kingdom, Canada, Australia and New Zealand. 

 Nauta allegedly texted two photos of the spill to another Trump employee, prosecutors allege. The indictment includes that photo – illustrating how the classified documents Trump kept were interspersed with newspapers and photographs. Trump wasn’t charged over classified documents he turned over voluntarily With the 31 documents the indictment describes as underlying the 31 counts of willful retention of national defense information, the indictment also lists when those documents were recovered by the government. 

 Twenty-one were retrieved on August 8, 2022 – the date of the FBI’s search of Mar-a-Lago – and 10 were retrieved on June 3, 2022, when Trump lawyer Evan Corcoran turned over classified documents in response to the Justice Department’s May 2022 subpoena. 

 The indictment does not, however, list in the charges that any of the classified documents were turned over in January 2022, when Trump handed over 15 boxes to the National Archives. The Archives found nearly 200 classified documents in those boxes, according to the indictment, including 30 marked “top secret.” 

 It’s notable that the indictment does not include any documents retrieved in January 2022, given that Trump and his allies in Congress have attacked the Justice Department for not charging Biden or others who had unauthorized classified documents in their possession. 

 The difference of course, is that Biden – as well as former Pence – immediately contacted the National Archives and offered to return the documents, while prosecutors allege that Trump obstructed efforts to retrieve the classified documents at Mar-a-Lago. 

 A separate special counsel investigation into Biden’s handling of documents remains ongoing, while the Justice Department told Pence’s attorney no charges would be brought over the discovery of classified documents in his Indiana home. 

 What’s next in classified documents case 

Trump has been summoned to appear in court in southern Florida at 3 p.m. ET Tuesday, where he will appear before a magistrate judge to hear the charges against him and is expected to enter a not guilty plea.

 On Friday, Smith pledged that his office would “seek a speedy trial on this matter consistent with the public interest and the rights of the accused.” Just how quickly the case goes to trial is still an open question, as the discovery process for this case could be lengthy. It will be further complicated by the fact that this prosecution involves classified materials. The Justice Department believes it will take prosecutors 21 business days – about a month – in court to present their case to a jury at trial, according to a document prosecutors filed with the court alongside the indictment. 

The estimate does not include how long the defense might take to present its case, which includes the possibility that Trump could chose to testify in his own defense. The case has been assigned to federal District Judge Aileen Cannon, a Trump-appointed judge who raised eyebrows last year when she oversaw court proceedings related to the Trump’s efforts to appoint a so-called special master to review the documents seized in the FBI’s August search of Mar-a-Lago. 

Her move to order the third-party review of the search was overturned by a conservative federal appeals court. Trump already has a trial scheduled for March 2024 in his New York criminal case, and additional investigations into the former president – including from the Fulton County district attorney and the special counsel’s separate January 6 probe – are still looming. 

 CNN’s Katelyn Polantz contributed to this report. 

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