Federal prosecution of Donald Trump (classified documents case)

United States of America v. Donald J. Trump, Waltine Nauta, and Carlos De Oliveira is a pending federal criminal case against Donald Trump, the 45th president of the United States, Walt Nauta, his personal aide and valet, and Mar-a-Lago maintenance chief Carlos De Oliveira. The grand jury indictment brings 40 felony counts against Trump related to his alleged mishandling of classified documents after his presidency, to which he has pleaded not guilty. The case marks the first federal indictment of a former U.S. president.

On June 8, 2023, the original indictment with 37 felony counts against Trump was filed in the federal district court in Miami by the office of the Smith special counsel investigation. On July 27, a superseding indictment charged an additional three felonies against Trump.

Trump is charged separately for each of 32 documents under the Espionage Act. The other eight charges against him include making false statements and engaging in a conspiracy to obstruct justice. The most serious charges against Trump and Nauta carry a maximum penalty of 20 years in prison. There are no mandatory minimum penalties.

Trump was arraigned on June 13, Nauta was arraigned on July 12, and both were arraigned on additional charges on August 10. De Oliveira was arraigned on August 15 on four criminal counts related to an alleged attempt to delete surveillance footage. All pleaded not guilty to all charges. Though the trial had been set for May 20, 2024, it has been indefinitely postponed.

Background

Under the Presidential Records Act (PRA), presidential documents must be transferred to the National Archives and Records Administration (NARA) by the end of a president's term. Trump's term ended in January 2021. In May 2021, NARA became aware of missing documents from the Trump Administration, and began an effort to retrieve documents improperly taken to Trump's residences at Mar-a-Lago and The Bedminster Club. Later, the Federal Bureau of Investigation (FBI) obtained evidence that Trump was personally involved in causing the documents to be taken.

After repeatedly demanding the return of documents from Trump's team and warning them of a possible referral to the Justice Department, NARA retrieved 15 boxes of documents in January 2022. NARA discovered that the boxes contained classified material, and notified the Justice Department on February 9, 2022. This led the FBI to launch an investigation into Trump's handling of government documents on March 30, 2022. In May 2022, a grand jury issued a subpoena for any remaining documents in Trump's possession. Trump certified that he was returning all the remaining documents on June 3, 2022, but the FBI later obtained evidence that he had intentionally moved documents to hide them from his lawyers and the FBI and thus had not fulfilled the subpoena.

This led to the FBI search of Mar-a-Lago on August 8, 2022, in which the FBI recovered over 13,000 government documents, over 300 of which were classified, with some relating to national defense secrets covered under the Espionage Act. The civil lawsuit Trump v. United States arose from the search, which briefly led to the appointment of a special master by District Judge Aileen Cannon to review seized materials. Cannon's ruling was later overturned.

In a November 2, 2022 interview with the FBI, a former Trump White House employee said that Nauta had been promised a pardon, "even if he gets charged with lying to the FBI", should Trump be elected in 2024.

In November 2022, the FBI investigation was taken over by a special counsel investigation, under the direction of Jack Smith who was appointed by Attorney General Merrick Garland. A second civil case allowed the Smith investigation to make use of the crime-fraud exception to attorney–client privilege to access certain evidence in the case.

In March 2023, the FBI initiated contact with Brian Butler, a 20-year-employee of Mar-a-Lago and longtime close friend of De Oliveira. Butler had helped move boxes of documents, not realizing what type of documents were inside nor others' intent to hide them. He provided information to investigators about the actions of De Oliveira and Nauta.

Proceedings

Original indictment

The grand jury handed up the indictment under seal on June 8, 2023. The indictment was unsealed the following day, and special counsel Jack Smith gave a brief statement emphasizing the seriousness of the charges and stating that his office would seek a speedy trial. In the court where the defendants were arraigned, scheduling trial within 70 days of a criminal indictment would normally be considered "speedy", but the Classified Information Procedures Act (CIPA) applies, and those required procedures may take additional time. As the Guardian explains, "the seven-stage Cipa process is sequential, meaning each previous section has to be completed before the case can proceed to the next section."

Its 37 counts against Trump and six against Walt Nauta include willfully retaining national defense information in violation of the Espionage Act, making false statements, obstruction of justice, and conspiracy to obstruct justice. The conspiracy to obstruct justice charge carries a penalty of up to 20 years in prison; violations of the Espionage Act carry a penalty of up to 10 years in prison. There are no mandatory minimum penalties.

Trump (37 counts):

• 31 counts of retaining and failing to deliver national defense documents under the Espionage Act.

Each of these charges is for possession of a separate, specific document. Ten of these documents were handed over to the government in June 2022, and the other 21 were recovered in the August 2022 search. According to the indictment, the 31 documents describe U.S. nuclear weapons; foreign military attacks, plans, capabilities, and effects on U.S. interests; foreign nuclear capabilities; foreign support for terrorist activity; communications with foreign leaders; U.S. military activities; White House daily foreign intelligence briefings; potential vulnerabilities of the United States and its allies to military attack; and plans for possible retaliation in response to a foreign attack.

• 5 counts relating to conspiracy to obstruct justice and withholding documents and records
• 1 count of making false statements.

Nauta (6 counts):

• 5 counts relating to conspiracy to obstruct justice and withholding documents and records
• 1 count of making false statements.

The indictment included photographs showing boxes containing classified information in "a ballroom, a bathroom and shower, an office space, his bedroom and a storage room" at Trump's Florida home.

It included transcripts of an audio recording it says are of Trump showing a classified U.S. military attack plan (the name of the target country is redacted) to a book publisher, writer, and two staff members in July 2021, while saying he was unable to declassify the document. News reports said the target country was Iran that and Trump was showing the document to the writers while complaining that General Mark Milley, Chairman of the Joint Chiefs of Staff, had unfairly portrayed him to the media. Milley later told a journalist: "Our job is to render advice. We have plans for all kinds of things ... Not one time have I ever recommended to attack Iran."

The indictment also alleged that in fall 2021, Trump showed a classified military map to a representative of his political action committee (PAC) (later identified in the press as Susie Wiles, CEO of his Save America PAC) who did not have a security clearance, and that Trump acted to keep classified documents he knew he could not be in possession of because they had been subpoenaed.

Information from Yuscil Taveras

Shortly after Trump and Nauta's original indictment in June, a target letter was sent to Yuscil Taveras, the director of information technology at Mar-a-Lago who oversees the surveillance cameras. At first, Taveras was represented by attorney Stanley Woodward, whose legal fees were paid for by Trump's Save America PAC to represent Taveras and a number of Trump allies. While represented by Woodward, Taveras provided testimony to the grand jury. On July 5, after being told that Woodward might have a conflict of interest, Taveras notified the court he wished to drop Woodward as his attorney and to switch to a public defender. Taveras then retracted his previous testimony and provided new information regarding a plot to delete surveillance video at the Florida property that implicated Trump and others. This led to a superseding indictment in which Taveras was not charged. He agreed to testify for the prosecution.

Superseding indictment

On July 27, a superseding indictment was filed, charging an additional defendant, Carlos De Oliveira, the maintenance chief at Mar-a-Lago, and adding new counts for Trump and Nauta. In the new indictment, all three defendants face two counts related to the attempt to delete the surveillance footage:

• "Altering, destroying, mutilating, or concealing an object" (Title 18 USC Sections 1512(b)(2)(B) and 2)
• "Corruptly altering, destroy, mutilating or concealing a document, record, or other object" (Title 18 USC Section 1512(c)(1))

In the new indictment, Trump also faces an additional count of willful retention of national defense information under the Espionage Act. The 32nd document is the Iran document he referenced in the July 2021 conversation. The indictment says that he possessed it until January 17, 2022, so it may have been inside the 15 boxes of material he voluntarily surrendered to NARA that month (before the subpoenas and search).

Charging Trump with these three new counts brings his total number of counts to 40.

Assignment of district judge

Federal judge Aileen Cannon, who was appointed to the bench by Trump in 2020, was randomly assigned to preside over the case. Cannon previously made unprecedented rulings favorable to Trump in 2022, particularly in appointing a special master to review seized documents, which temporarily stymied the FBI and special counsel investigations. The rulings were criticized by legal scholars, and a panel of the conservative U.S. Court of Appeals for the Eleventh Circuit unanimously overruled them, writing, "We cannot write a rule that allows any subject of a search warrant to block government investigations after the execution of the warrant. Nor can we write a rule that allows only former presidents to do so."

Arraignments

Trump arrived in Miami the day before his arraignment at the Wilkie D. Ferguson, Jr. U.S. Courthouse and had dinner at his golf club in Doral with his lawyer Christopher Kise; Nauta; Nauta's Washington DC lawyer Stanley Woodward; right-wing activist and President of Judicial Watch Tom Fitton; and other advisers.

Trump

At his June 13 arraignment, Trump pleaded not guilty to all 37 counts. Trump and Nauta were both released. Trump was instructed not to speak about the case to any of the 84 witnesses, including Nauta, who continues to be Trump's personal assistant. Trump was represented by Todd Blanche, a former assistant U.S. attorney in the Manhattan federal prosecutor's office who is also representing him in his prosecution by the Manhattan district attorney. (Trump attorneys Jim Trusty [wd] and John Rowley [wd] had resigned the day after the indictment.) At the arraignment, Blanche entered the plea on Trump's behalf.

Trump is also represented in the matter by Lindsey Halligan. Halligan is the local counsel for the case and filed the Motions to Appear Pro Hac Vice for Evan Corcoran and James Trusty, initially on August 22, 2022. She was one of the few lawyers working for Trump who was on site during the FBI search, which she said was a "huge surprise". She said Trump's subsequent indictment goes "for the jugular".

On August 4, in a court filing, Trump pleaded not guilty to the three new counts. He told the court he would not appear in person for the arraignment. At the August 10 arraignment, the judge formally accepted the plea he had submitted.

Nauta

On June 13, Nauta appeared in court, but he could not be arraigned because his lawyer was not eligible to represent him in Florida. On July 6, Nauta, having hired a Florida lawyer, Sasha Dadan, pleaded not guilty. On August 10, he appeared in court again and pleaded not guilty to the added charges.

De Oliveira

On July 31, De Oliveira appeared in court and was released on $100,000 bond. He is represented by John Irving, whose firm has been paid nearly $200,000 by Trump's Save America PAC. His arraignment was delayed because he did not have a Florida lawyer. He was arraigned on August 15 and pleaded not guilty.

Pretrial proceedings

The trial will involve procedures under the Classified Information Procedures Act. Under that act, the government plans to share classified documents relevant to the case with the defense as part of discovery. On June 19, a judge issued a protective order that restricted Trump to viewing the relevant documents under his attorneys' supervision and explicitly prohibited him from publicly discussing the evidence, as DOJ had requested three days earlier.

By the third week of June, the government began disclosing unclassified evidence to the defense as part of the discovery process. That includes documents obtained via warrants and subpoenas; transcripts of witness testimony before the grand jury; witness interviews; and copies of the videorecordings from Mar-a-Lago. The government's first discovery disclosure to the defense included at least 833,450 pages of material, including emails and other documents; of this set, about 4,500 pages were designated as "key" documents, the most crucial evidence.

On July 18, lawyers for Trump and Nauta attended the first pretrial conference, while Trump went to Iowa for a televised campaign event with Sean Hannity. Several days later, the judge set another pretrial hearing for May 14, 2024.

On August 22, prosecutors made a court filing asking whether Stanley Woodward may have a conflict of interest if he has to cross-examine Taveras, who was formerly his client. At an October 12 hearing, Cannon complained that prosecutors had introduced new arguments during oral argument and said she would potentially schedule further hearings about the matter in the future.

Following a September 12 hearing (postponed from August 25), Cannon prohibited Trump from commenting on classified evidence.

Earlier in 2023, in a different case, Cannon closed jury selection to the public on the basis that the courtroom was too small, which according to some was a constitutional error. Trump's trial was scheduled for the same courtroom.

In November, it was reported that Mar-a-Lago staff, including the person who cleaned Trump's bedroom, may be called to testify.

On February 6, 2024, Cannon ruled that witnesses' names could be made public, as the government had not explained its concerns related to "witness safety and intimidation". Two days later, the government asked her to reconsider. On April 9, Cannon ruled that witnesses in the case could remain private, reversing her prior decision. However, Cannon also did turn down a request seeking the sealing of substantive witness statements.

On February 12, Trump attended a hearing to determine whether prosecutors could withhold some classified evidence from the defense. The hearing was closed-door and in a sensitive compartmented information facility (SCIF).

On February 22, Trump's lawyers made multiple court filings asking for the case to be dismissed. On March 14, Cannon heard two of these motions, and she immediately rejected Trump's request to dismiss the case based on his claim that the Espionage Act was vague, though she is open to hearing his arguments about the law's vagueness as part of the case. Trump's second claim was that a president may keep any government documents he wishes under the Presidential Records Act.

On April 4, Cannon denied Trump’s motion to dismiss the indictment. Trump had claimed that a president, under the Presidential Records Act, may keep any government documents he wishes. Cannon ruled that the Presidential Records Act provides no "basis to dismiss” the charges.

On May 6, Cannon delayed a major deadline for the defendants to submit court filings (which had been set for May 9). She did this after it was revealed that prosecutors had shuffled the order of documents within each box while reviewing the boxes. As prosecutors acknowledged in writing: "The filter team took care to ensure that no documents were moved from one box to another, but it was not focused on maintaining the sequence of documents within each box." Trump attorney Todd Blanche described this as "the spoliation of this evidence" and said that prosecutors had committed an ethical breach by not revealing it promptly.

On May 7, Cannon canceled the May 20 trial date and wrote that it would be "imprudent and inconsistent" to finalize a new trial date before resolving pretrial issues. She issued a new pretrial schedule, under which defendants' motions to dismiss will be heard May 22 and June 21, there is a CIPA deadline on June 17 (delayed from May 9), defendants’ combined speedy trial report will be due July 19, and a status conference and a CIPA hearing will be held on July 22.

Trump's request to indefinitely delay trial

Cannon set an administrative placeholder date for a trial. The prosecution requested that the trial start on December 11, 2023—a relatively short delay—to give the defense more time to review discovery material, obtain security clearance, and properly handle classified evidence. The case could be delayed several months beyond what the government asked for. Prosecutors told the court that the trial should still proceed expeditiously given its significance and because the case "involves straightforward theories of liability" and presented neither "novel questions of fact" nor "unusual or complex" legal issues.

In a July 11, 2023, court filing, Trump and Nauta asked the court to indefinitely delay their trial. Their attorneys argued that it would be "challenging" to prepare for trial while Trump spent his "time and energy" on the presidential campaign trail and that it would be hard to find a "fair and impartial" jury. In its reply two days later, prosecutors argued that there was "no basis in law or fact" for such an "indeterminate and open-ended" delay, and they asked for trial to begin December 11. On July 21, Cannon set the trial to begin on May 20, 2024. In October, the Trump team asked to delay the trial until after the 2024 election. On November 10, Cannon said it was too early to decide whether to delay the trial. She delayed deadlines for filing and responding to motions, and she said she would reconsider the trial date at a March 1, 2024 scheduling conference. On November 16, Cannon said she would likewise wait until the March 1 hearing to give Trump a deadline for saying which classified evidence he will use at trial. That deadline would likely be about one month from the time it is set; if so, it would be an April deadline. Because of the sequential nature of pretrial deadlines under the Classified Information Procedures Act, Cannon's decision had, according to The Guardian, effectively delayed the trial by four months. Legal experts, including national security attorney Bradley Moss and former federal prosecutor Brandon Van Grack, said the original trial date of May 2024 was now implausible, while former U.S. Attorney Joyce Vance said Cannon was "on track to delay past the election."

At the March 1 hearing, Cannon did not make any decisions. Prosecutors proposed holding the trial on July 8. The defense continued to request that the trial be held after the election, but proposed August 12 as an alternative, a date that might overlap (and therefore interfere) with the trial on federal charges of election obstruction.

On March 18, Cannon gave each side two weeks to propose jury instructions. Each side must provide two sets: an instruction for the jury to decide whether each of the various records Trump kept should be considered “personal” or “presidential” under the Presidential Records Act, and another instruction that assumes Trump was permitted to take anything he wanted anyway. On April 2, the special prosecutor said that these different interpretations of the Presidential Records Act are irrelevant to assessing whether Trump violated the Espionage Act.

In an April 14 court filing, Smith asked that the defendants "not be allowed to use their overlapping engagements to perpetually delay trial".

Response to indictment

Trump

After the indictment, Trump and his allies within the Republican Party escalated verbal attacks on the FBI, Justice Department, and federal prosecutors, whom Trump denounced in a speech to the Georgia Republican Party as "cowards", "fascists and thugs", and "sinister forces" days following his indictment. Trump has repeatedly referred to the case as the "boxes hoax".

Trump falsely asserted during the days after his indictment that under the PRA he "had every right to have these documents." Legal experts said there was no basis for his claim that the PRA superseded the Espionage Act under which he was charged. He said, "The Espionage Act has been used to go after traitors and spies. It has nothing to do with a former president legally keeping his own documents," though, despite its name, that act is not limited to espionage allegations. Trump also cited the so-called "Clinton socks case," a 2010 lawsuit brought by Judicial Watch arguing that audio recordings of interviews president Bill Clinton had given during his presidency must be turned over to NARA, though the NARA had never sought them as presidential records. A federal judge dismissed the Clinton lawsuit because Judicial Watch had no standing to bring it. Trump incorrectly insisted Clinton had won and that the court had recognized Clinton's right to the recordings.

On June 19, 2023, Trump was interviewed by Bret Baier of Fox News. When Baier asked why he hadn't simply handed over his boxes, Trump said he worried they might contain "golf shirts, clothing, pants, shoes". He claimed he felt at the time: "I don’t want to hand that over to NARA yet." He said he had not dealt with the request because he had been "very busy". He also maintained he had already "declassified" all documents in his possession.

On July 15, 2023, Trump gave a speech to the Turning Point Action Conference, claiming: "Whatever documents a president decides to take with him, he has the absolute and unquestioned right to do so." He falsely added: "This was a law that was passed and signed."

On September 6, 2023, again citing the Presidential Records Act, Trump told radio host Hugh Hewitt: "I'm allowed to do whatever I want."

On September 14, 2023, Trump was interviewed by Megyn Kelly for SiriusXM. He said: "I'm allowed to take these documents, classified or not classified. And frankly, when I have them, they become unclassified. People think you have to go through a ritual. You don’t — at least in my opinion, you don't."

Republicans

Many congressional Republicans responded to the indictment by asserting, without evidence, that Trump was being targeted for political purposes by a Justice Department "weaponized" by President Joe Biden, although an independent special counsel oversaw the investigation and a grand jury made the charging decision. Trump allies who rallied around the ex-president after the indictment included the House Republican leadership (Speaker Kevin McCarthy, Majority Leader Steve Scalise, Republican Conference Chair Elise Stefanik), as well as Senator J. D. Vance.

Trump allies engaged in violent rhetoric after the indictment, depicting the indictment as an "act of war" and calling for retribution. Among others, Republican congressman Andy Biggs, Trump-endorsed House candidate Joe Kent, and former Republican Arizona gubernatorial candidate Kari Lake made allusions to the use of violence in their attacks on the federal indictment.

Most members of the Senate Republican leadership team, including minority leader Mitch McConnell and minority whip John Thune, stayed silent on the indictment. Senator Mitt Romney of Utah said in a statement that Trump "brought these charges upon himself ... by refusing to simply return them when given numerous opportunities to do so." Former U.S. Representative Adam Kinzinger, a Republican critic of Trump, wrote, "Today, Justice is being served. Nobody is above the law. The former President will get a fair trial. The former President will be held accountable." Former Attorney General under Trump William Barr said it was ridiculous to present Trump as the victim of a witch hunt: "It's a very detailed indictment. And it's very, very damning ... He's not a victim here."

By August, House Republicans were seeking to use their power of the purse to halt investigations and prosecutions of Trump. Some proposed leveraging the looming September 30 deadline to fund the government for the coming year in order to trigger a federal shutdown, though none of the federal or state actions against Trump would be affected by a shutdown.

Democrats

The top Democratic leadership in Congress — Senate majority leader Chuck Schumer and House minority leader Hakeem Jeffries — released a statement urging both critics and supporters of Trump to let the case "proceed peacefully". President Biden declined to comment on the indictment.

See also

• Lincoln–Johnson ledger-removal allegation
• Joe Biden classified documents incident
• Mike Pence classified documents incident
• Hillary Clinton email controversy § Classified information in emails
• Indictments against Donald Trump

References

External links

• "United States of America v. Donald J. Trump and Waltine Nauta" (PDF). United States District Court for the Southern District of Florida. June 8, 2023. Case 9:23-cr-80101-AMC. Retrieved June 15, 2023 – via documentcloud.org.
• "United States of America v. Donald J. Trump, Waltine Nauta and Carlos de Oliveira" (PDF). United States District Court for the Southern District of Florida. July 27, 2023. Case 9:23-cr-80101-AMC.
• "Public docket". CourtListener. Retrieved June 15, 2023.