Trump’s Second Indictment (Over the Cliff Notes)

As I’m sure everyone knows by now, Trump and his valet Walt Nauta have been indicted. If you are keeping score, this is Trump’s second indictment and his first federal indictment. We are expecting indictments from Georgia later this summer, and the J6 investigation at some point but nobody knows when.

You can read this indictment here.

(I asked my readers once what I should call my document summaries and my favorite answer was ‘over the cliff notes.’)

Jack Smith, Special Counsel, gave a short talk yesterday. He made two points. First, he said that the indictment came as a result of an investigation that followed the facts and the law, and the indictment itself was handed down by a grand jury of citizens in Florida, according to the rule of law. Second, he urged everyone to read the indictment.

If you start reading, you’ll find that it was written for public consumption. The facts are clearly presented and legal terms are explained.

Meanwhile, with annotations in red, here is my summary and analysis. To make it easier to follow the story, I put the events in chronological order.

Note: When (good) prosecutors put facts into an indictment, they know they have evidence to prove the facts beyond a reasonable doubt.

This is what is known as a speaking indictment.  The only requirement is that an indictment contains a  plain, concise, and definite written statement of the essential facts constituting the offense charged and signed by an attorney for the government. But prosecutors have discretion about how much information they include. Sometimes they “speak” through the indictments. In this case, no doubt, the motive was to make sure the public has full and accurate information.

First, an observation. In all of his court filings since leaving office, Trump refers to himself as “President Trump.” In the special master case, the DOJ referred to him as “Plaintiff.” Now, the DOJ refers to him as “Trump.”

The facts

The indictment opened by acknowledging that while he was president, Trump had lawful access to all these documents. We also learn that while president, he gathered clippings, letters, notes, cards, official documents and other materials in cardboard boxes that he kept in the White House. Among these mementos were hundreds of classified documents.

(A theme throughout the indictment is that Trump treated classified documents like his personal possessions.)

These classified documents he mingled with his personal items included those containing information about:

• 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 foreign attack.

The indictment states the obvious: “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.”

What follows is evidence meticulously tracing the movement of these documents.

12:00 pm, January 20, 2021

Trump ceased to be president. “As he departed the White House he caused scores of boxes, many of which contained classified documents, to be transported to The Mar-a-Lago Club. Trump was not authorized to possess or retain those classified documents.”

(The use of the word “caused” is interesting. My guess is that the prosecutors do not want to reveal details at this point, but they want to make clear that Trump took them deliberately.)

Mar-a-Lago was not authorized to house these documents and while the documents were stored there, “Mar-a-Lago Club hosted more than 150 social events, including weddings, movie premieres, and fundraisers that together drew tens of thousands of guests.”

Here is what the indictment says about how the boxes went from the White House to Mar-a-Lago:

“Trump and his White House staff, including Nauta, packed items, including some of Trump’s boxes.”

“Trump was personally involved in this process. He caused his boxes, containing hundreds of classified documents, to be transported from the White House to The Mar-a-Lago Club.”

These facts set Trump’s case apart from the cases in which former high-level executives realize that they have inadvertently taken documents.

Several pages of the indictment are devoted to explaining the rules for how secret and sensitive US defense information is classified and must be handled.

January 17, 2022: Employee #2 and Nauta gathered 15 boxes from Trump’s residence, loaded the boxes into Nauta’s car, and took them to a commercial truck for delivery to NARA.”

When asked about the process and details, Nauta made “false and misleading statements.” (Those statements are recounted on page 20. The lies are easily debunked through his text message exchanges. Ooops.)

February 9, 2022: Because the boxes returned had so many secret and confidential markings, NARA referred the discovery to the DOJ.

March 30, 2022: The DOJ opened a criminal investigation.

April 26, 2022, a federal grand jury opened an investigation.

May 11, 2022: The grand jury issued a subpoena for any remaining documents with classified markings.

May 22, 2022: Nauta entered the storage room at 3:47 and left 34 minutes later, carrying one of Trump’s boxes.

May 23, 2022, Trump met with Attorney #1 and Attorney #2 at Mar-a-Lago to discuss how to respond to the subpoena. The lawyers told him he needed to search for documents responsive to the subpoena.

He made the following statements, among others, as memorialized by Attorney #1:

These quotations from Trump are included to show that Trump understood the importance of these documents:

• 18 U.S.C. § 793(e) Willful Retention of National Defense Information (Counts 1 – 31, one count for each document.)
• 18 u.s.c.§ 1512(k) Obstruction of Justice (Trump and Nauta conspired to withhold these documents and mislead others.) (count 32)
• 18 U.S.C. § 1512(b)(2)(A) 2, Withholding a Document or Record (count 33)
• 18 U.S.C. § 1512(c)(l) Corruptly Concealing a Document or Record (count 34)
• 18 u.s.c. § 1519, 2 Concealing a document in a Federal Investigation (count 35)
• 18 U.S.C. § 1001 (a)(l): Scheme to conceal (count 36)
• 18U.S.C. § 1001(a)(2) False Statements and Representations (Count 37.)

PART II: will be ready in the next day or two.

In honor of graduation weekend, here was JJ 8 years ago graduating from Dog School. They didn’t have to teach him to be an alert and ferocious guard dog. He learned that on his own.

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