Unpacking the Florida Trump Indictment

A good day for the rule of law

Last week a Florida federal grand jury indicted former president Donald Trump on thirty-seven federal charges related to his improper retention of classified documents and his obstruction of the government’s investigation into his handling of those documents. Walt Nauta, Trump’s personal assistant or “body man,” was also indicted on six felony counts. Trump was arraigned on Tuesday, June 13 and pleaded not guilty.

Special counsel Jack Smith inconveniently chose to indict Trump right before the weekend of my daughter’s wedding, so I am just getting caught up. The indictment paints a devastating picture. A lot of legal maneuvering lies ahead, but Smith’s prosecutors have put together a compelling case and Trump is in real legal peril.

The first federal indictment of a former president takes us into uncharted waters. There are risks of a backlash and retaliation by Republicans, and even of potential violence from Trump supporters. You are already hearing claims this a political prosecution and represents a “weaponization” of the justice system.

Just the opposite is true. Anyone else who engaged in similar misconduct would be indicted. If Trump were not charged, it would suggest a former president is above the law.

Although this indictment is a sobering development for the country, it’s a good development for the rule of law. Justice required nothing less.

The Factual Allegations

The indictment alleges that when Trump hurriedly packed and left office in January 2021, he caused scores of boxes of documents and other memorabilia to be sent to his home at the Mar-a-Lago resort in Florida. Many of these boxes contained classified documents. At Mar-a-Lago, Trump stored the boxes at various times in a ballroom, a bathroom, an office, his bedroom, and in a storage room. Mar-a-Lago was not a secure location for storing classified information. Once out of office, Trump was not authorized to have classified materials there.

For more than a year, the government tried to get the documents back. In January of 2022, Trump finally provided fifteen boxes of material to the National Archives. Those boxes included nearly 200 documents with classified markings. On March 30, 2022, the FBI opened a criminal investigation into Trump’s retention of classified materials. A grand jury investigation began the following month.

On June 3, 2022, in response to a grand jury subpoena, Trump’s attorney turned over 38 more classified documents. His attorneys provided a false certification that there had been a “diligent search” for classified materials and that no more remained. Convinced that there were still more documents to be found, on August 8 2022, the FBI executed a search warrant at Mar-a-Lago. That search recovered 102 more documents with classified markings.

The indictment charges that Trump repeatedly tried to obstruct the grand jury and FBI investigations and tried to prevent the documents from being returned. He allegedly suggested his attorney lie to the FBI about whether Trump had any responsive documents and suggested that his attorney destroy or conceal classified documents. He directed his co-defendant Nauta to move boxes of documents to conceal them from investigators and from Trump’s own attorney, who was searching for the classified documents to respond to the grand jury subpoena. Trump also allegedly caused his attorneys to provide the false certification to the FBI, claiming that all relevant materials had been returned.

The Indictment

The 47-page indictment provides a lot of detail. Prosecutors use a “speaking indictment” to tell the full story of a case, beyond the bare bones allegations necessary to bring criminal charges. This indictment not only speaks, it includes pictures. It contains several photographs showing boxes of classified materials being stored at various unsecure locations in Mar-a-Lago. That’s not legally necessary, but it is a nice touch and does help bolster the allegations.

The indictment also includes several examples where Trump, as a presidential candidate and president, made public statements about the importance of protecting classified materials. Again, none of that is legally necessary, but it does provide useful background and context to show Trump was fully aware that his handling of classified material was improper.

The indictment also describes two instances where Trump allegedly showed classified materials to individuals without the appropriate security clearances, while telling them the documents were still classified. (One of these is the incident that was captured on tape and was first reported by CNN a couple of weeks ago.) Again, these anecdotes provide useful context about Trump’s reckless handling of classified information. They also undermine any potential claims that Trump had declassified the documents before he left the White House. (Trump and his supporters have publicly made this claim from time to time, but his lawyers have never made the argument in court and there appears to be no basis for it.)

The Charges

The thirty-eight counts break down as follows:

Espionage Act - The first thirty-one counts charge Trump with willful retention of national defense information in violation of 18 U.S.C. § 793(e), a section of the Espionage Act. The charge is that Trump had unauthorized possession of documents related to the country’s national defense and failed to return those documents to the officials authorized to receive them. This charge is a felony punishable by up to ten years in prison.

Each count relates to a separate individual document that Trump retained despite the repeated demands for their return. The first 21 counts relate to 21 documents that were recovered during the search warrant on August 8, and the next 10 counts relate to documents that were provided on June 3 in response to the grand jury subpoena. Each document is described only briefly, but many related to military plans, the military capabilities and activities of foreign countries, or nuclear secrets and weaponry. Most of them were marked “Top Secret.”

Bringing a separate count for each document was smart. Sometimes in cases involving classified material the government is concerned that in order to prove its case it will have to reveal too much about the contents of a classified document. This is sometimes referred to as “graymail” – the defendant essentially calls the government’s bluff by saying: “If you put me on trial, I will be entitled to publicly disclose the very information that you maintain it is so critical to keep secret.” By making each document the basis of a separate charge, the government will be able easily to drop counts, if any, where this ends up becoming an issue, while still proceeding on the remaining ones.  

This statute is referred to as the “Espionage Act,” but Trump is not charged with espionage. The section of the statute under which he is charged requires only that the defendant had unauthorized possession of national defense information and failed to return it to the appropriate authorities. The offense is not spying, it’s improperly retaining sensitive documents that could put the nation’s security at risk. You may see some Republicans attacking the indictment by saying that “espionage charges” are inappropriate, but that’s a red herring.

Conspiracy to Obstruct Justice – Count 32 charges Trump and Nauta with conspiracy to obstruct justice in violation of 18 U.S.C. § 1512. It alleges Trump and Nauta conspired together to obstruct the grand jury investigation by retaining and concealing classified documents. The alleged acts in furtherance of the conspiracy include moving the boxes of documents around to conceal them from investigators and suggesting that Trump’s attorney falsely certify that all documents were returned.

This charge is a 20-year felony. It’s the same obstruction statute that has been used against many of the defendants in the prosecutions of the Capitol riot on January 6 – although those defendants are charged with obstructing the Congressional proceeding to certify the election, not a grand jury proceeding.

Obstructing the Grand Jury Investigation – The next two counts charge both Trump and Nauta with obstructing the grand jury investigation in violation of 18 U.S.C. § 1512.

• Count 33 is a witness tampering charge. It alleges that Trump tried to persuade his own attorney to conceal documents from the grand jury. It also alleges Trump and Nauta misled the attorney by moving boxes containing classified materials so the attorney would not find them and produce them to the grand jury. This conduct allegedly resulted in the attorney withholding information from the grand jury and thereby obstructing its investigation.

• Count 34 alleges that between May and August, 2022, Trump and Nauta obstructed the grand jury investigation by moving and concealing boxes containing classified documents so they would not be found and produced to the grand jury.

Obstructing the FBI - Count 35 contains a different obstruction of justice theory, under 18 U.S.C. § 1519. It alleges that Trump and Nauta obstructed the FBI criminal investigation (not the grand jury proceeding) by concealing classified documents from the FBI and by causing a false certification to be made to the FBI. Section 1519 was passed in the wake of the Enron scandal and applies broadly to obstructing federal investigations by concealing, altering, or destroying documents and records. It is also a twenty-year felony.

False Statements – The final three counts allege violations of the federal false statements statute, 18 U.S.C. § 1001. This common white collar charge criminalizes making false statements, providing false records, or concealing material information in a matter within the jurisdiction of the federal government. It is a five-year felony.

• Count 36 charges Trump and Nauta with scheming to conceal material facts from the grand jury and the FBI by moving and concealing the documents.

• Count 37 charges Trump alone with violating Section 1001 by causing his attorneys to falsely certify that a diligent search had been made for classified materials and that all relevant documents had been produced. Trump allegedly knew that was not true because he had concealed classified documents from his attorneys.

• Finally, Count 38 charges Nauta alone under 1001 with lying to the FBI during an interview about his role in moving and concealing the boxes and his knowledge about where they had been kept.

Why Florida?

Special counsel Jack Smith spent months investigating this case using a grand jury based in Washington, D.C. Many people expected him to charge the case there. Smith undoubtedly would have preferred to indict in D.C. The judges there are experienced in dealing with classified documents cases, the special counsel is based in D.C., and the jury pool in D.C. is probably less sympathetic to Trump than the jury pool in Florida (although I personally don’t think that’s a major concern).

But in the last few weeks Smith began using a grand jury in Florida to complete the investigation, and that’s where the case was indicted.

The reason is a legal requirement called venue. Prosecutors are required to bring a criminal case in the district where the offense took place, or where at least a portion of the offense took place if a crime touched multiple jurisdictions. This requirement is contained not only in federal rules and statutes but also in the U.S. Constitution. Article III states: “Trial of all Crimes . . . shall be held in the State where the . . . Crimes shall have been committed.” And the 6^th amendment provides: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed . . . “

You’ve probably seen recent stories about plaintiffs in civil lawsuits suing the Biden administration and engaging in “forum shopping” - choosing to file in a particular court to get the case before a sympathetic judge in a red state. That’s possible in some civil cases, where the rules governing jurisdiction are different. But prosecutors can’t just file criminal charges anywhere they like. They must indict in a proper venue or risk having the case dismissed or having the jury reject the charges.

There were some arguable questions in this case about whether venue was proper in D.C. or Florida. The answer can depend on the crime being charged. If the charge was improperly removing documents from the White House, venue would be proper in D.C. where that occurred. But if the charge is improperly retaining and hiding documents once the government asks for them back (most of the charges in this indictment), that all took place in Florida, making that the proper venue. Obstruction of justice that took place in Florida but affected an investigation in D.C. might properly have been brought in either location.

By bringing the charges in Florida, Smith avoids spending months fighting (and possibly losing) over whether venue in D.C. was proper. That seems like a prudent decision. It also has the side benefit of eliminating the bogus MAGA talking point about supposedly biased D.C. jurors who would automatically convict Trump regardless of the evidence. Smith is taking on Trump on his home turf, so to speak. A conviction will be that much stronger in the eyes of the public as a result.

The “Loose Cannon” Factor

One consequence of bringing the case in Florida, unfortunately, was that it ended up being assigned (randomly) to Judge Aileen Cannon, a relatively inexperienced federal judge who was appointed by Trump.

Judge Cannon gained some notoriety during litigation over the Mar-a-Lago search warrant executed by the FBI. She slowed down the government’s investigation by ruling Trump was entitled to have a special master review the documents seized from his home before government investigators could look at them. Her ruling had no legal basis and was quickly and unanimously slapped down by a three-judge panel of the Eleventh Circuit that included two Trump appointees. But given her apparent willingness to bend (or ignore) the law to help Trump, her assignment to his criminal case is a cause for concern.

Some are suggesting Judge Cannon should recuse herself, given her prior rulings and questions the public might have about her impartiality. She might choose to do that. But if she doesn’t, it’s unlikely the government could force her off the case. Recusals are largely up to a judge’s discretion. And Smith might be reluctant to alienate the judge by suggesting he doesn’t think she can be fair.

Judge Cannon could do a lot of damage to the government’s case through rulings on the admissibility of certain evidence or the validity of particular legal arguments. She could slow-walk the case so trial does not take place before the 2024 election. She could even dismiss the case entirely.

Smith’s team will be able to take immediate appeals of some rulings to the 11^th Circuit if necessary, but that slows things down even further. And if the case drags on beyond 2024, the concern is that an incoming Republican president might scuttle the prosecution.

On the other hand, plenty of Trump-appointed judges in cases related to January 6 and in other litigation involving the former president have handled the cases fairly and impartially. We shouldn’t assume the fix will be in when it comes to Judge Cannon. The “loose Cannon” factor is a worrying development, but for now we will just have to keep an eye on it.   

“But her emails!” The Biden and Clinton Comparisons

The most common talking point you will hear in defense of Trump is not that he didn’t do it or that the conduct alleged is not serious. It’s that other federal officials, including President Biden and Hillary Clinton, have done “the same thing” and were not prosecuted. Therefore, the argument goes, Trump is being “singled out” by a Democratic administration looking to kneecap the 2024 Republican front-runner.

Not to put too fine a point on it, but this is nonsense. It is true other officials have been found to have classified materials after leaving office. After the Trump investigation began, President Biden’s staff located a few classified documents among materials he had maintained from when he was Vice President. Hillary Clinton infamously had emails containing some classified information on her personal server at home. Former Vice President Pence also recently located some classified materials he had inadvertently taken with him when leaving office. (Two weeks ago the Justice Department informed Pence that no criminal charges will result.)

It's not uncommon for classified material to inadvertently wind up in the wrong location. When large quantities of records and papers are being packed up, things can end up being taken by mistake. Such cases almost never result in criminal charges.

The difference is criminal intent and how the official reacts when the classified material is discovered. Biden, Pence, and Clinton all cooperated, returned the materials, and invited the government to look to confirm there weren’t any more. They didn’t lie about having more documents, move boxes around to conceal them from investigators, or otherwise try to obstruct the investigation. There was no indication of criminal intent or any suggestion that their actions were anything other than inadvertent.

Trump did not cooperate, but instead tried to obstruct. His retention of classified documents was deliberate, not inadvertent. Trump was not charged in connection with a single document that he returned voluntarily -- even though it had taken him months to respond to the government’s requests. He is charged only in connection with documents he hid from investigators and tried to keep. These documents were recovered only during the search warrant or in response to the grand jury subpoena.

The Trump indictment is not about merely having the documents. It is all about the obstruction, lies, and refusal to help get the documents back to their rightful location. If he had cooperated from the beginning, there would be no criminal charges. Instead, over many months, he refused to cooperate, falsely claimed he had returned all relevant materials, hid documents from investigators, and tried to obstruct the government’s efforts to recover the documents. That’s why he was indicted, and that’s why the comparisons to Biden, Clinton, or Pence are unjustified.

What Comes Next

Expect months of legal wrangling over various evidentiary issues. There are reports that Trump’s attorneys will try to get counts dismissed based on alleged prosecutorial misconduct, but that is unlikely to go anywhere. They may try to get Judge Cannon to revisit questions such as whether Trump’s attorney-client communications were properly used during the grand jury investigation (a D.C. judge ruled they could be used because they were made in the furtherance of a crime). There will be many more motions and arguments over legal theories or the admissibility of evidence.

At this point it’s hard to predict when the case might go to trial. In theory, there’s no reason it could not be tried well before the 2024 election. The facts are not that complicated, and the allegations are relatively straightforward. But nothing involving Trump is business as usual, and there are many variables that could affect the pace of this prosecution.

Meanwhile the other prong of Jack Smith’s investigation, into the events leading up to January 6 and the efforts to overturn the election, is continuing. On the day Trump was arraigned in Florida, the grand jury in D.C. investigating the January 6 allegations was hearing testimony from additional witnesses. That case is much larger and more complex, and we don’t know when Smith will conclude the investigation.

On the state level, Atlanta District Attorney Fanni Willis has indicated she will decide by August about charging Trump with Georgia state crimes for election interference. And the New York state case where Trump was indicted last April remains pending. It could go to trial early next year.

There’s a very real chance that by the end of 2023 Trump could be facing four separate indictments, two federal and two state.

A Good Day for the Rule of Law

In the wake of the events of January 6, then-attorney general nominee Merrick Garland observed that the rule of law is the very foundation of our democracy. The essence of the rule of law, he noted, is that like cases are treated alike. “There is not one rule for Democrats and another for Republicans . . . not one rule for the powerful and another for the powerless.”

This indictment is true to the ideals Garland highlighted. It upholds the fundamental principle that no one in this country is above the law. Anyone else who handled the nation’s most sensitive secrets in this manner and then obstructed the investigation would be indicted. There is not a different rule for a former president.