[Note from BenIndy Contributor Nathalie Christian: Public Citizen and other allies are organizing rallies around the country for this Thursday, August 3 — the day of Trump’s arraignment — to demand accountability and support the rule of law. I looked and the closest rally (that I can find, so far) is in Petaluma, at 5:30pm. If anyone local catches wind of a more local rally, or wants to initiate one, please email me and I’d be happy to promote it. From Public Citizen: Find a rally near you.]
This post was produced by Benicia resident Stephen Golub. Steve blogs about domestic and international politics and policy, including lessons that the United States can learn from other nations, at A Promised Land: America as a Developing Country. If interested, you may sign up for future posts by subscribing to the blog.
A US Courthouse in Lower Manhattan. | Image uncredited
Jack Smith is doing his job. The rest is up to us.
Yesterday, a grand jury indicted Donald Trump for, in essence, trying to gut American democracy. In securing that indictment, Special Counsel Jack Smith launched a case of unprecedented importance to our country.
I’d thought that I might greet the news with relief that the inevitable has come to pass, or despair over what Trump’s abuses signify, or trepidation over the societal ruptures that await us.
But I feel something far more stirring. Not quite elation.
Pride.
I’ve spent my career working to promote democracy and the rule of law across the globe. As I’ve written, the effort has largely flopped, though there have been powerful exceptions to that unfortunate rule.
One of the heartbreaking aspects of this endeavor has been how blind America has been to our own failures here at home. Even as the United States has sought to teach, train and tut-tut other societies about their democratic and legal shortcomings, we’ve ignored our own glass house.
But at this one historic moment, this country has lived up to its promise.
On this one day, we’re seeing the rule of law in action in its most vital sense: No one is above the law.
The indictment, practically free of legalese and packed with persuasive detail, makes for compelling reading. It portrays how Trump and six so-far unindicted and unidentified co-conspirators undertook a multi-stage drive to undo the election results. It superbly illuminates how they sought to pressure state and federal officials, line up fake electoral college electors, bulldoze then-Vice President Pence and ultimately ignite a mob, all in order to block Joe Biden from being certified as president-elect on January 6.
By citing abundant incriminating evidence from Trump’s own top aids and allies, including contemporaneous notes by Pence, it also shows how Trump knew that his allegations of electoral theft were lies.
In an irony that perhaps will not go unnoticed by Trump’s nativist and white nationalist fans, both the federal magistrate to whom the indictment was presented and the federal judge who will oversee the case are immigrants, respectively from India and Jamaica.
Now, none of this is to say that any of this will play out well, even if Trump is convicted. Things will get ugly, vicious, maybe even violent.
Nor does it compensate for what got us here, from Trump’s depravity to his followers’ tribal loyalty to Republican leaders’ craven acquiescence to Attorney General Merrick Garland’s ill-advised delay in approving the Trump insurrection investigation.
Furthermore, as I’ve previously suggested, the ultimate forum that will decide Trump’s legal fate will be the court of public opinion. That is, whether he will be held legally accountable for his alleged crimes against this country will probably hinge on whether he wins next year’s election.
But this first step had to happen. At this pivotal point in our history, we had to move from a hypocritical glass house to a literal, crucial courthouse. Smith and his team will do their best to hold Trump accountable for his crimes.
Now, the rest of us must do our part to ensure that Trump loses in the court of public opinion as well.
This post was produced by Benicia resident Stephen Golub. Steve blogs about domestic and international politics and policy, including lessons that the United States can learn from other nations, at A Promised Land: America as a Developing Country. If interested, you may sign up for future posts by subscribing to the blog.
Read more from Steve by visiting his blog or clicking any of the links below.
[Note from BenIndy Contributor Nathalie Christian: While I think all of Steve’s posts are well worth the time it takes to read them, I really encourage everyone to sit down with this one, especially because we’re still very close to Independence Day. The seeding, care and feeding of democracy abroad is a complicated undertaking at the best of times. Keeping it alive and thriving in our own garden has become a surprisingly fraught enterprise, too. Steve’s thoughtful analysis of what has and hasn’t worked provides a reasonable framework for the cultivated endurance of democracy and, perhaps more importantly, it provides at least me with very welcome hope.]This post was produced by Benicia resident Stephen Golub and originally appeared in the Washington Post‘s ‘Made by History’ section. Steve blogs about domestic and international politics and policy, including lessons that the United States can learn from other nations, at A Promised Land: America as a Developing Country. If interested, you may sign up for future posts by subscribing to the blog.
For 40 years, the U.S. government has ignored what sorts of democracy promotion work — and which ones don’t
As America celebrates Independence Day, we find our democracy not nearly as strong as we’d once thought. Authoritarian challenges threaten our institutions, our rights and the rule of law.
Ironically, this sobering reality confronts us after the United States, along with affluent allies, has devoted decades and massive resources to trying to build democracy in the world’s poorer and post-communist societies, including via rule of law, good governance, human rights and anti-corruption programs. With some exceptions — mostly centered on providing electoral assistance and fortifying civil society and media — these efforts have largely fallen flat. Data from Freedom House, the World Bank and the World Justice Project confirm the decline in democracy and associated fields across the globe.
Why the widespread failure? First, we hubristically bit off more than we could chew. The United States mistakenly assumed that foreign aid for training and equipping recipient nations’ government institutions could overcome the deep-seated political, historical, economic and cultural forces permeating them and could thus build democracies in our image.
Second, in focusing most democracy aid on such government institution-building, the United States put a relative paucity of resources into nongovernmental organizations (NGOs) and other civil society forces that modestly but more effectively strengthen specific policies, processes and populations.
In some ways, the roots of this failure reach back to our experience in the Philippines at the outset of the 20th century. At that time, America’s imperialist endeavor drove the Spanish from the archipelago and brutally crushed an indigenous independence movement. During the next half-century, we built corrupt, elite-controlled government institutions instead of strengthening grass- roots participation in representative government. This became an unintentional template for our subsequent democracy-building abroad decades later.
That template became salient when, in the 1980s, a host of actors and factors combined to make democracy a U.S. foreign policy priority.
Providing political cover for its wars in Central America and right-wing allies throughout Latin America, the Reagan administration funded government-focused, ostensibly democracy-promoting programs in the region. The unfortunate upshot was, for example, partnering with human rights-violating governments on major and, ultimately, unsuccessful administration of justice initiatives to which officials in our partner nations were actually resistant or indifferent. Similarly flawed and government-focused U.S. democracy programs arose alongside backing for authoritarian Cold War allies elsewhere.
In a more promising development, the 1980s also saw bipartisan support for the new National Endowment for Democracy, new U.S. Agency for International Development projects and other U.S. initiatives that provided small grants to civil society and media initiatives around the world. But such funding was (and is) dwarfed by major USAID programs and related support for government institutions.
This funding disparity meant that, as the United States started pouring money into top-down programs geared toward building American-style government institutions abroad, it tended to downplay support for civil society programs that could directly benefit and strengthen populations poorly served by those institutions.
By contrast, various private funding sources prioritized civil society. The Ford Foundation, the Carnegie Corp. and other donors made grants to South African NGOs pursuing anti-apartheid legal activism. Financier George Soros began providing funds for innovators, budding democracy activists, journalists and international exchanges as Eastern Europe and the Soviet Union slowly started to liberalize. The partly U.S.-funded but private Asia Foundation supported Bangladeshi NGOs’ innovative local dispute resolution work. (I worked for the foundation elsewhere, and later evaluated and researched that work.)
These privately supported efforts exhibited promising results as they expanded their operations and impact in the 1990s. They contributed to significant health, housing and other victories in South Africa after the racist regime stepped down. Bangladeshi NGOs’ local dispute resolution models gathered steam — and support from additional donors and the Bangladeshi government itself — by ameliorating gender inequities and providing the poor with alternatives to a distant, corrupt and incomprehensible judicial system.
Around the world, both foundations and donor nations alike funded a growing array of NGOs featuring paralegals who, unlike those working in U.S. law offices, were typically community-based volunteers whom NGO attorneys trained and collaborated with. They advocated for and with their communities and fellow citizens to address health, housing, land, gender and other issues.
These programs thrived at the same moment that the United States and other affluent nations began pouring greatly expanded sums into seeding democracy worldwide in the wake of the fall of the Berlin Wall and the collapse of Eastern European communist regimes and the Soviet Union. Books on “exporting democracy” — even presenting it as America’s destiny — assumed it was the wave of the future.
Yet, the United States ignored the success of the projects funded by foundations and clung to the notion that foreign aid to governments could secure dramatic democratic transformations. This partly stemmed from foreign policy priorities, including the post-Cold War perspective that fortifying U.S.-friendly capitalist democracies was in our own economic and political interest. But it also flowed from a bureaucratic reality: It was easier to secure funding in Washington for ambitious programs that promised to build up national ministries, legislatures and judiciaries than for local programs that worked with farmers, women or other disadvantaged groups.
Maintaining this unfortunate focus, George W. Bush linked his post-9/11 military and political programs to both defeating terrorism and installing democracy, stoking cynicism in many circles about that latter effort. Even if viewed in the most charitable light, U.S. democracy-building efforts in Afghanistan proved no match for the dominance of warlords and — as with some other aid recipient nations — entrenched corruption networks that permeated the government.
The past two decades have seen U.S. democracy aid flow and ebb, in response to such events as the Arab Spring and its demise. This aid has continued to feature a blend of foreign policy priorities, immense bureaucracy, hubris, cynicism and idealism. Its misplaced priorities have endured: Despite the documented success of paralegal programs, for example, many have suffered funding cutbacks from American and other sources.
All of this helps explain the mediocre record for U.S. democracy promotion: The United States has focused too much on working with change-resistant institutions and too little on supporting the civil society and media change agents that might gradually affect such institutions over the long haul. Even in the short term, these shortchanged programs have a record of helping citizens bring about concrete results — improving farmers’ land tenure, combating corruption, reducing violence against women, enhancing communities’ health or strengthening inputs into local governance, among other goals. They may not be as sexy as transforming a country’s government, but history indicates such programs actually work.
All told, the United States has poured about $100 billion into democracy aid over the past 40 years, mostly for large-scale, government-focused programs, often designed and implemented by international consulting firms.
However, despite far less funding, homegrown projects that draw on local knowledge — which foreign consultants and aid officials lack — and that help partner populations pursue economic, health, political or human rights priorities have proved far more successful.
In a related vein, U.S. support for free and fair elections — programs often carried out by American NGOs that provide election-oriented monitoring, advice and training — has yielded notable achievements. Such programs have protected electoral integrity in some instances and fueled successful drives to challenge corrupt results in others, including Ukraine’s 2004 Orange Revolution.
With the exception of such dramatic electoral results, civil society support may not produce the seismic shifts that American officials seek. But neither has the top-down, institution-building approach that has fruitlessly gobbled up vast resources.
Authoritarians are strong until they’re not. History is littered with the downfalls of repressive regimes that once appeared firmly entrenched. Just recently, the world saw Vladimir Putin’s seemingly iron hold on power shaken by the corrupt forces he himself enabled.
Thus, the global pendulum may yet swing back toward democracy. Helping to make that happen, in however modest a manner, demands supporting the kinds of efforts that have worked in the past and rethinking those that have not.
These lessons apply at home as well. Even as we honor Independence Day, the health of our government institutions seems in question. But a vibrant civil society, a thriving free press and safeguarding elections can protect those institutions’ integrity, keeping the flames of political accountability burning and ensuring that our democracy endures.
This post was produced by Benicia resident Stephen Golub. Steve blogs about domestic and international politics and policy, including lessons that the United States can learn from other nations, at A Promised Land: America as a Developing Country. If interested, you may sign up for future posts by subscribing to the blog.
Read more from Steve by visiting his blog or clicking any of the links below.
This post was produced by Benicia resident Stephen Golub. Steve blogs about domestic and international politics and policy, including lessons that the United States can learn from other nations, at A Promised Land: America as a Developing Country. If interested, you may sign up for future posts by subscribing to the blog.
The One Court That Will Decide Trump’s Fate
A US Courthouse in Lower Manhattan. | Image uncredited
It seems like you can’t tell a Trump trial or investigation without a scorecard these days. There are dozens of them.
Regardless of what you think of him, you’d think that courts in Washington, Florida, Georgia or New York would determine Trump’s ultimate legal fate.
Think again.
Let’s Be Civil
To start with, two upcoming New York City trials are both noteworthy.
The New York State Attorney General’s suit against him for massive financial fraud is set for October. She’s seeking a $250 million fine and to bar him, his family and his firm from doing business in the state that serves as his headquarters.
Following the favorable verdict for E. Jean Carroll in May, in which she won a $5 million judgement against Trump for sexual abuse and defamation, he verbally slammed her for her victory. This in turn will be a focus of her related $10 million defamation suit against him, which is slated for trial in January.
However, as civil lawsuits, the fraud and Carroll cases don’t carry that ultimate penalty of potential imprisonment. There’s even the possibility of Trump raising enough funds from his followers to at least partly offset his financial penalties if found liable. Nonetheless…
The Current Criminal Cases
A threat of incarceration faces the ex-president, through two current criminal indictments.
There’s the Stormy Daniels hush money prosecution, brought by the Manhattan District Attorney in connection with Trump paying the adult film star on the cusp of the 2016 election, in return for her not revealing their affair. It starts next March in New York City.
Then there’s the pending trial most in the news recently: U.S. Department of Justice Special Counsel Jack Smith’s national security documents case, which will be held in Florida at some point. The DOJ has charged Trump with lying about and otherwise obstructing the return to the U.S. Government of classified materials.
As the indictment states, those papers pertain to “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.”
Furthermore, “The unauthorized disclosure of those 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.”
Finally (for now, at least), there are two additional investigations which quite possibly will see Trump indicted this year.
It appears increasingly probable that, within the next several months, Special Counsel Smith will charge Trump in Washington, D.C. for activities connected to the January 6th insurrection or various other kinds of electoral interference pertaining to the 2020 election.
The Fulton County District Attorney, in Georgia, is expected to announce in August a decision regarding whether and whom to indict regarding 2020 electoral interference, possibly including multi-state racketeering chargesrelated to Trump pushing for the selection of “alternative electors” who could have subverted the Electoral College vote.
Image uncredited.
How Many Trials Was That?
From four to very possibly six major trials loom in Trump’s future.
Nonetheless, none of them seem likely to determine Trump’s legal fate and accountability in the most fundamental manner possible: whether he goes to prison. That decision rests in the hands of another court. Here’s why.
As I’ve noted, prison isn’t an option in a civil trial.
The New York hush money case is nothing to scoff at. But it’s arguably the toughest criminal case to win against him, and the one least likely to get him imprisoned even if he’s found guilty.
Instead, what becomes of Trump could conceivably hinge on the national security, insurrection and electoral theft trials that could consume much of next year. But whether the ultimate outcomes of those cases will actually be decided in Florida, Washington or Georgia courtrooms is another matter.
There already are indications that the national security documents case could be pushed back until after Election Day 2024. For one thing, the Trump-friendly judge presiding over the trial simply could decide to finalize the date for then or otherwise stymie the prosecution. For another, special considerations regarding national security trials also could delay the proceedings. And of course, there are the delaying tactics that Trump attorneys exploit in any litigation involving him.
The complexity of the potential, election-related federal and Georgia prosecutions could also delay the prosecutions of Trump for those crimes.
But such considerations are not the fundamental reasons why the courts hearing those cases might not decide Trump’s fate, unless of course they find him not guilty. This, it must be emphasized, is certainly possible. Such a verdict could be a legitimate outcome in a given case, as much as some might think or wish otherwise. Or, in a less legitimate vein, it could prove more probable by virtue of rulings that the Trumpist judge in the Florida documents trial could make.
Democracy in Action
But let’s put aside the potential “not guilty” outcomes for now.
Rather, Trump’s dodging the legal bullets rests on his getting re-elected (or perhaps another Republican winning in 2024, and then doing Trump some very big favors). Here’s how:
President Trump could in effect halt federal trials that haven’t started or been completed.
He could pardon himself if convicted.
He could similarly exert pressure to get a Georgia verdict in effect negated.
More specifically, Candidate Trump has made no secret of his plan to appoint an attorney general who will do his bidding, including halting a federal prosecution. If already convicted by the time he’s elected, he’ll seek to use his pardon power to spare himself.
Now, such scenarios are not a lock. Trump could of course lose the Republican nomination or the general election. A Democratic-controlled Senate could refuse to confirm his kind of compliant Attorney General, though that might only prove to be a stopgap measure. The Supreme Court could decide that a president can’t pardon himself. Many other twists and turns could take place.
Georgia on My Mind
But what about the potential Georgia case? It should be on our minds partly because the state prosecution there would not be controlled by the (potentially Trump-appointed) U.S. attorney general and a conviction there would not be subject to the possibility of a presidential pardon. But…
So, both federal and state prosecutions could conceivably be halted, or their convictions effectively negated.
Which brings me back to my original point. As crucial as the actual and potential Trump trials are, they probably won’t ultimately determine whether he goes to prison. As much as we yearn for the rule of law to trump politics, these crucial outcomes might not be the product of what judges and juries decide.
Rather, Trump’s legal future hinges on the November 2024 election, and on all of the intensity that will entail. That’s so sobering for a nation that prides itself on its rule of law, on no person being above the law and on justice being beyond vote counts.
In other words, the crucial verdicts regarding these profoundly serious charges will not be decided by courts in Washington, Florida, Georgia or New York.
The verdicts will be rendered by the court of public opinion.
This post was produced by Benicia resident Stephen Golub. Steve blogs about domestic and international politics and policy, including lessons that the United States can learn from other nations, at A Promised Land: America as a Developing Country. If interested, you may sign up for future posts by subscribing to the blog.
Read more from Steve by visiting his blog or clicking any of the links below.
[Note from BenIndy Contributor Nathalie Christian: I’ve been wading through copious commentary on the case of United States of America v. Donald J. Trump (and Waltine Nauta), but I finally found my favorite analysis – the one I’m sharing today – at the Lawfare Blog. It’s a long read so we’ll start with a brief summary of the charges laid out in the indictment from NPR before we launch into the Lawfare Blog’s much more thorough take. If you’re really interested in the topic, start by reading the full indictment (embedded below), then swing back here and follow the links for the commentary. Interested citizens should start by reading the indictment in full before engaging with the commentary. The indictment is 44 pages, but it’s not actually that long of a read because some information is repeated.]
United States of America v. Donald J. Trump and Waltine Nauta
Some commentators have suggested that every American citizen should take the time to read the indictment in full, saying “it’s your civic duty.” The document is a shorter read than its 44 pages suggest, and I agree that it’s the best place to start. (Click the image to enlarge and start reading.)
Willful retention of national defense information: This charge, covering counts 1-31, only applies to Trump and is for allegedly storing 31 such documents at Mar-a-Lago.
Conspiracy to obstruct justice: Trump and Nauta, along with others, are charged with conspiring to keep those documents from the grand jury.
Withholding a document or a record: Trump and Nauta are accused of misleading one of their attorneys by moving boxes of classified documents so the attorney could not find or introduce them to the grand jury.
Corruptly concealing a document or record: Thispertains to the Trump and Nauta’s alleged attempts to hide the boxes of classified documents from the attorney.
Concealing a document in a federal investigation: They are accused of hiding Trump’s continued possession of those documents at Mar-a-Lago from the FBI and causing a false certificate to be submitted to the FBI.
Scheme to conceal: This is for the allegation that Trump and Nauta hid Trump’s continued possession of those materials from the FBI and the grand jury.
False statements and representations: This count concerns statements that Trump allegedly caused another one of his attorneys to make to the FBI and grand jury in early June regarding the results of the search at Mar-a-Lago.
False statements and representations: This final countaccuses Nauta of giving false answers during a voluntary interview with the FBI in late May.
Now let’s dive into the Lawfare Blog’s much longer analysis of United States of America v. Donald J. Trump and Waltine Nauta
The indictment of former President Donald J. Trump that was unsealed today by the U.S. District Court for the Southern District of Florida represents a beginning in several distinct senses.
It is, at one level, the beginning of a single criminal proceeding: an indictment which alleges discrete crimes against two individuals, one of whom happens to have served as President of the United States.
It is also, however, the beginning of the broader effort to use federal criminal law as a vehicle of accountability for Trump’s behavior—both in office and following his departure from office. It is, after all, the first federal criminal case against Trump—against whom prior criminal investigations have come up short and other federal and state criminal investigations remain ongoing.
And it is, at the same time, the beginning of new era in American political life, one in which federal prosecutions of former presidents are—fortunately or unfortunately, as Trump might say—no longer either unthinkable or an eventuality to be avoided, either by prudential exercises of prosecutorial discretion (as in the case of Bill Clinton) or by preemptive exercises of the presidential power of clemency (as in the case of Richard Nixon).
If this case goes to trial, it will force Americans to think about these questions and others too. It will require the delicate handling of large volumes of classified material before a jury. It will raise questions about the limits of one of the most sacrosanct principles in our legal system, attorney-client privilege. It will push the ability of the criminal justice system to try a man while he seeks the very presidency whose prerogative of control over classified information he is accused of violating. And it will test Americans’ faith that a Justice Department under the control of one party can impartially and fairly try a former president of the other party even as he seeks to regain the presidency.
All of that is, and no doubt more, is coming in this case—which may, to complicate matters still further, not be the last indictment of Trump. The Jan. 6 investigation, after all, remains ongoing with an active grand jury apparently looking—among other things—at the conduct of the former president. The district attorney in Fulton County, Georgia has all but announced that she plans to seek charges this summer. And the criminal case brought by the New York district attorney is churning along toward a trial date currently scheduled for March of next year.
But for now, all of these questions remain in the future. Before us in the present is a 49-page document docketed as 23-cr-80101 in the Southern District of Florida, conspicuously captioned: United States of America v. Donald J. Trump and Waltine Nauta.
Pause a minute over that caption. The United States of America is seeking justice against Donald Trump. The executive branch of the government of the country is accusing its most recent former leader of crimes that put our national security at risk.
That is a very big deal.
The Allegations
The indictment alleges that as president, Trump gathered hundreds of classified documents owned by the United States and kept them in cardboard boxes at the White House. Some of the documents contained 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 a foreign attack,” the document says.
Since the beginning of the Mar-a-Lago investigation, analysts and journalists have puzzled over the question of how classified material ended up at Mar-a-Lago: Was it a matter of staff shoving stuff in boxes and it ending up in moving trucks? Or was Trump somehow personally involved? The indictment addresses these questions. It clearly alleges that material ended up at Mar-a-Lago because of Trump’s efforts to squirrel them away.
In particular, beginning in January 2021, as Trump was preparing to leave the White House, prosecutors assert that Trump personally directed his White House staff to box a variety of items in anticipation of his departure, including “hundreds of classified documents[.]” Waltine Nauta, Trump’s body man, a former member of the U.S. Navy, and Trump’s co-defendant, was a part of the group directed to assist with this document transfer.
As Trump prepared to leave office at noon on Jan. 20, 2021, the White House staff executed on his directions and delivered these boxes to the Mar-a-Lago Club in Palm Beach, Florida. At the moment he ceased to be president, the indictment states, Trump was no longer authorized to possess or retain these classified documents, nor was Mar-a-Lago an authorized location for the “storage, possession, review, display, or discussion of classified documents.”
The handling of the boxes of classified documents at Mar-a-Lago reads like a dark comedy. For several months, prosecutors allege, some of the boxes were stored on a stage in one of the club’s ballrooms. Nauta then moved them into the club’s business center, until staff needed to use that room as an office, the indictment claims. The records were then moved—we swear we are not making this up—to a bathroom and a shower before staff ultimately emptied out a basement storage room so they could store the boxes there. More than 80 boxes were ultimately relocated to the storage room, which the indictment describes as being “reach[able] from multiple outside entrances, including one accessible from The Mar-a-Lago Club pool patio through a doorway that was often kept open.”
While the boxes were being shuffled around Mar-a-Lago, the indictment alleges that Trump showed classified documents to third parties without security clearances on at least two occasions. Neither incident is clearly a predicate for any of the criminal charges brought in the indictment. Nor is it clear that they could be, as both occurred far from the Southern District of Florida where the matter will be tried. Instead, the special counsel appears to have included them in the indictment for another reason: to show that Trump understood what he was doing was wrong.
The first incident occurred in July 2021 at the Trump golf club in Bedminster, New Jersey, in a meeting with a writer and publisher of a forthcoming book—known from media accounts to be the autobiography of his former Chief of Staff Mark Meadows—as well as two Trump staffers, one of whom made an audio recording of the meeting at Trump’s request. In this meeting, Trump allegedly disputed an account given by a senior military official—known from media accounts to be Chairman of the Joint Chief of Staff Mark Milley—noting fears that then-President Trump might order an attack on a foreign country by producing what he described as that official’s own “plan of attack.” “Secret. This is secret information[,]” Trump is quoted as saying in discussing the document, presumably from the audio recording. “See as president I could have declassified it….Now I can’t, you know, but this is still a secret.”
The second incident took place at the same location in August or September 2021. At a meeting with a representative from a political action committee, Trump is alleged to have produced a classified map of a foreign country where, he commented, an ongoing military operation was not going well. While no recording appears to be available, Trump is alleged to have told the representative that “he should not be showing the map” and urged the representative “to not get too close.”
Throughout much of this period, the indictment alleges, Trump and his staff were also in active correspondence with the National Archives and Records Administration (NARA), which was seeking the return of the broader universe of presidential records that Trump had (improperly, in their view) taken with him when he left the White House. NARA began requesting the return of the documents in May 2021; by June, it was threatening to refer the matter to the Justice Department. In response, prosecutors contend, Trump and his staff at Mar-a-Lago appear to have begun preparing to send at least some documents back to NARA at its request.
Beginning in November 2021, Nauta and another employee—identified as “Trump Employee 2”—began bringing Trump boxes so that he could personally review their contents. The indictment quotes liberally from text messages and photographs they exchanged throughout this process, detailing Trump’s progress in reviewing the boxes and their contents. Around this same time, Nauta found a box that had been knocked over and had its contents spilled on the floor. These included several documents visibly marked as classified. He documented the event in a photograph he sent to Trump Employee 2, which is included in the indictment.
(Notably, however, when he was interviewed by the FBI in May 2022, Nauta allegedly indicated that he had no knowledge of any boxes being stored at Mar-a-Lago or any boxes having been brought to Trump for his review. These statements, which the government contends to be false, form the basis for one of the criminal counts against Nauta.)
On Jan. 17, 2022, Nauta sent 15 boxes of material back to NARA at Trump’s direction. Upon reviewing them, NARA determined that 14 of the boxes contained classified material and referred the matter to the Justice Department. The FBI later identified 197 documents with classification markings in these boxes.
The Justice Department subsequently opened a criminal investigation in March 2022, and a federal grand jury investigation began in April 2022. As part of this latter investigation, the grand jury issued a subpoena on May 11, 2022, seeking the production of all documents with classification markings in Trump’s possession, a subpoena which was served on one of Trump’s attorneys a few days later.
In a number of respects, how Trump and his staff responded to this subpoena forms the real gravamen of much of the criminal conduct alleged in the indictment.
According to the indictment, Trump met with two attorneys—identified as Trump Attorney 1 and Trump Attorney 2—on May 23 to discuss how to respond to the subpoena. These are almost certainly M. Evan Corcoran and Jennifer Little, respectively, two lawyers for Trump who were later compelled to provide information relating to their representation of Trump to the grand jury, following a still-sealed series of judicial rulings concluding that the lawyers’ services were being used as part of an ongoing criminal scheme and that the materials thus fell within the scope of the crime-fraud exception to attorney-client privilege.
The indictment quotes a “memorialization” by Trump Attorney 1 as indicating that Trump expressed reservations about having others review his documents. Trump is alleged to have repeatedly suggested that it would be better if no documents were found. Nonetheless, he agreed that Trump Attorney 1 could return to Mar-a-Lago on June 2 to search the boxes of presidential records brought from the White House to Mar-a-Lago for any documents with classification markings responsive to the subpoena.
Over the next two weeks, before Trump Attorney 1’s return, Nauta is reported to have brought approximately 64 boxes from the storage room to Trump’s Mar-a-Lago residence at Trump’s direction. The indictment gives a play-by-play of the movement of boxes, including time stamps and related text exchanges between Nauta and at least one Trump family member, identified as female but not specifically named. Only about 30 of those boxes were returned to the storage room before June 2, when Trump Attorney 1 arrived to review the documents removed from the White House.
When he arrived that afternoon, Trump Attorney 1 was taken to the storage room to review the records located there, in which he found 38 documents with classification markings. He sealed these documents in a Redweld and prepared them for return to the FBI. After completing his search, Trump Attorney 1 met with Trump to discuss what he had found. During that discussion, Trump made what the indictment calls “a plucking motion,” which Trump Attorney 1 later described in his memorialization as suggesting, “[W]hy 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 Attorney 1 then contacted a third attorney not involved in the search—identified in the indictment as Trump Attorney 3, whom we know from prior court filings to be Christina Bobb—and asked them to sign a certification he had prepared indicating that “[a] diligent search was conducted of the boxes that were moved from the White House to Florida” and that “[a]ny and all responsive documents accompany this certification.” Trump Attorney 3 did so the next day in her purported capacity as the custodian of Trump’s records. Shortly thereafter, the certification and 38 recovered documents with classification markings were handed over to Justice Department officials. In a meeting with those officials, in the indictment notes, Trump described himself as an “open book.” Yet that same day, several boxes of presidential records that had been removed from the storage room were loaded onto an aircraft and flown north with Trump and his family for the summer.
Of course, as we now know, the story does not end there. The indictment confirms that, in July 2022, the FBI and grand jury obtained and reviewed surveillance video from Mar-a-Lago showing the movement of boxes, which led the Justice Department to secure a court-authorized search warrant. This, in turn, led to the FBI’s search of Mar-a-Lago on Aug. 8, 2022, during which the FBI recovered 102 documents with classification markings from both the storage room and Trump’s office.
The Charges
The first set of charges in the indictment concerns the retention of the classified documents in the first place.
The opening 31 counts all allege the same offense: the willful retention of national defense information in violation of 18 U.S.C. § 793(e). A key provision of the much vaunted Espionage Act, § 793(e) makes it a criminal offense to have “unauthorized possession of, access to, or control over any document…[containing] information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation,” where the possessor then “willfully retains [such a document] and fails to deliver it to the officer or employee of the United States entitled to receive it[.]” Only Trump, and not his alleged co-conspirator Nauta, is listed as having acted in violation of the Espionage Act.
That the indictment includes charges under § 793(e) isn’t a surprise. It was one of the original three statutes under which the FBI predicated the search warrant it executed at Mar-a-Lago last year. But the sheer volume of documents held in alleged violation of § 793(e) is notable, not least because of the complications that presenting classified information to a jury can entail. Moreover, the volume of classified material improperly retained is one of the key aggravating factors that leads prosecutors to treat a case as criminal, rather than as an administrative matter.
As then-FBI Director James Comey explained while closing the Hillary Clinton email investigation: “All the cases prosecuted involved some combination of: clearly intentional and willful mishandling of classified information; or vast quantities of materials exposed in such a way as to support an inference of intentional misconduct; or indications of disloyalty to the United States; or efforts to obstruct justice” (emphasis added). Note that this indictment specifically contains allegations as well of two other of the key aggravating factors Comey noted at the time: obstruction of justice and clearly intentional mishandling of material.
The indictment provides specific details on all 31 documents that it alleges were unlawfully retained in violation of § 793(e), including the classification level and the period for which each is alleged to have been unlawfully retained. These 31 documents represent a subset of the broader universe of classified documents that Trump is believed to have unlawfully withheld—one that prosecutors no doubt strategically selected to underscore the risk presented to U.S. national security interests, and potentially to make it easier for them to share with the jury.
From the dates listed, it appears that 21 of the documents were recovered by the FBI in its Aug. 8 search, while the remaining 10 were among those handed to the FBI by Trump’s attorney on June 3, 2022, in response to the earlier subpoena. Twenty-one of the documents are classified at the TOP SECRET level, while nine are identified as SECRET documents and one is unmarked. Several tags identifying special classification categories are represented among the documents, and a number of other similar tags appear to have been redacted from the indictment. The contents are described as ranging from “intelligence briefing[s] related to various foreign countries” to documents “concerning [the] military capabilities of a foreign country” to one document “concerning nuclear weaponry of the United States.”
Notably, the Espionage Act charges are the only ones in the indictment that seek to allege wrongdoing for withholding still-classified documents. In this sense, they are the only charges that might be affected by one of Trump’s leading defenses: that he declassified the documents in question while still President, albeit through a highly informal process—more specifically, in his mind—that was not documented or remarked upon in any outwardly identifiable way. Even then, it’s not clear that Espionage Act prosecution would be impossible if Trump’s claims were true, as the Espionage Act hinges not on whether a mishandled document is classified but whether it constitutes “national defense information” (or “NDI”)—a term that courts have defined broadly to mean all manner of closely held national security information, classified or not. That said, a showing that the documents were technically declassified could certainly weaken prosecutors’ arguments that the withheld documents constitute NDI and, perhaps more importantly, undermine the public’s and jury’s perception of the seriousness of Trump’s alleged misconduct. Hence, even if not determinative, these charges are likely to trigger a healthy debate over the president’s declassification authority, one that could conceivably result in new precedent on a tricky area of constitutional authority.
The next set of charges relates to obstruction of justice.
Counts 32 through 34 of the indictment address alleged violations by both Trump and his aide Nauta of different parts of 18 U.S.C. § 1512, a statutory provision that establishes several criminal violations relating to witness tampering and obstruction of justice. Count 32 alleges that Trump and Nauta conspired to obstruct justice in violation of § 1512(k) by conspiring to move boxes of classified documents so as to conceal them from an individual identified as “Trump Attorney 1” and thereby cause him or her to falsely represent to the FBI that Trump no longer had classified documents in his possession and cause a false certification to be issued to the FBI to that effect. It also alleges that they suggested that Trump Attorney 1 hide or conceal documents in response to the FBI’s subpoena.
Count 33 then alleges the actual act of willfully withholding those records from the FBI in violation § 1512(b)(2)(A), while count 34 alleges the act of corruptly concealing a document or record in relation to an official proceeding in violation of § 1512(c)(1).
Though the indictment does not state as much expressly, media reports make clear that Trump Attorney 1 is likely Trump attorney M. Evan Corcoran, who conducted the May 2022 search of boxes of classified records at Mar-a-Lago and produced a number of classified records he found there in response to the FBI’s subpoena on Trump’s behalf. Corcoran also authored the June 2 certification provided to the FBI that was later shown to be false, though another lawyer signed it on Trump’s behalf.
Earlier this year, Corcoran was reportedly compelled to provide various records relating to his representation of Trump to the grand jury. While he initially claimed that these records were subject to attorney-client privilege, a federal district court judge in Washington, D.C. held that those records fall within the crime-fraud exception to the privilege and thus must be produced to the grand jury—a view that the D.C. Circuit upheld on a heavily expedited appeal.
These materials reportedly included a long verbal memo wherein Corcoran laid out in vivid detail his conversations with Trump and his concerns with his access to documents at Mar-a-Lago. Corcoran’s account of these conversations appears to have made its way into the indictment, which quotes several statements that Trump allegedly made in conversation with Trump Attorney 1 and another attorney—including some that appear to suggest that Trump wanted Corcoran to remove or destroy problematic documents instead of providing them to the FBI.
The prospect that one of Trump’s lead attorneys might be forced to testify against him—or that Corcoran’s voice recordings might be used to prosecute his client—promises one of the more sensational aspects of any ultimate criminal trial. But it may pose challenges for prosecutors as well. While both a D.C. federal district court and the D.C. Circuit held that attorney client privilege was not a bar to producing these records to the grand jury, it’s not clear that their holdings—which remain under seal—reached the question of whether that same evidence would be admissible in a criminal trial. Perhaps more importantly, these holdings would not necessarily bind the district court in Florida or the Eleventh Circuit Court of Appeals. And absent this evidence, it may be harder for prosecutors to prove these violations. That said, media reports indicate that investigators were also pursuing security camera footage and testimony from other Mar-a-Lago employees, which may prove sufficient for prosecutors to make their case even without Corcoran’s statements.
Count 35 alleges a violation of 18 U.S.C § 1519, which establishes criminal violations for those who destroy, alter, or falsify records or other “tangible objects” in federal investigations with an aim to interfere with the investigatory process. This count also incorporates 18 U.S.C § 2, which provides that anyone who “aids, abets, counsels, commands, [or] induces” an offense “against the United States” or “procures its commission” or “willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal.” In other words, an individual —Nauta, in this instance—who counsels or assists another in committing a crime can be held liable and punished as if he were the principal perpetrator of the offense.
In this instance, during the federal criminal investigation being conducted by the FBI, defendants Trump and Nauta are alleged to have “hid,” “concealed,” and “covered up” Trump’s continued possession of documents with classified markings at the Mar-a-Lago Club from the FBI during its initial attempt to collect documents from Mar-a-Lago. Among other things, Trump allegedly directed Nauta to move boxes before the review of Attorney 1 (again, believed to be Evan Corcoran). In addition, Trump is alleged to have caused a false certification—the one submitted by Attorney 3, believed to be Christina Bobb—to be submitted to the FBI.
The final set of charges relates to alleged false statements to government officials in official proceedings.
Counts 36 through 38 allege violations of 18 U.S.C. § 1001(a), which applies to anyone who “knowingly and willfully—(1) falsifies, conceals, or covers up by any trick, scheme, or device a material fact; [or] (2) makes any materially false, fictitious, or fraudulent statement or representation.” False-statements charges frequently accompany complex investigations (see, for example, the prosecution of former Trump National Security Advisory Mike Flynn) and, like the obstruction charges, these reflect the truism that it’s often not just the crime that’s the problem—it’s also the cover-up.
Count 36 applies to both Trump and Nauta and alleges that, during the investigation, the two operated a scheme to conceal Trump’s continued retention of classified documents from the grand jury and the FBI. Count 37, by contrast, applies only to Trump and alleges that he directed “Trump Attorney 3” (Christina Bobb) to sign a sworn certification that Trump’s attorneys had conducted a “diligent search” of Mar-a-Lago and that all classified documents had been returned to the government—a certification that the indictment alleges Trump knew to be false. Count 38 applies to Nauta and alleges that, in a voluntary May 2022 interview with the FBI (discussed at further length below), Nauta knowingly lied about the existence and location of classified documents at Mar-a-Lago.
[Note from Nathalie: We’ll be skipping the authors’ really great analysis of the judge, Aileen Cannon, to move on to potential penalties. For the full story, check out the original post.]
The Potential Penalties
As always happens when a grand jury hands up a major case, the press today is eagerly summing up the maximum penalties that Trump and Nauta could theoretically face. Such activity is fun for journalists because the numbers get big really quickly. After all, each of the first 31 counts—the Espionage Act charges, which only Trump faces—carries a maximum 10-year term and $250,000 fine. Charges 32 through 35, which are the obstruction of justice counts that both Trump and Nauta face, each carry a maximum 20-year term and, also, a $250,000 fine. Finally, the last three counts, counts 36 through 38—for scheme to conceal and false statements under 18 U.S.C. §1001—each carries a maximum five-year term and a $250,000 fine. Trump is charged in all of those except count 38, and Nauta in all but count 37.
Fun, maybe, but also highly misleading. If either defendant should ultimately be convicted—which is a long way down the road—it’s unthinkable that either would receive the sorts of prison terms those maximums conjure up.
To get a sense of the real potential penalties Trump may be facing, you have to make comparisons to other cases, keeping in mind the differences between them and this case (as alleged). Just last week, for instance, former Air Force intelligence officer Robert Birchum was sentenced in the Middle District of Florida on a single count of violating 18 U.S.C. §793(e), to three years for having willfully retained more than 300 classified documents, including 43 at the Top Secret level. There are numerous differences between his case and Trump’s. To begin with, he pleaded guilty—which immediately reduces his offense severity under the sentencing guidelines by three levels. In addition, he was not charged with obstruction of justice—let alone with multiple counts of it stretching over a period of many months. Finally, there was no evidence in the sentencing memoranda submitted in that case suggesting that Birchum ever disseminated or communicated any of the classified information he hoarded. In this case the government alleges that on at least two occasions Trump did so.
In connection with the Birchum case, the government submitted to the court some cases to use as comparisons. For the five cases involving willful retention of Top Secret documents—all of which were, again, guilty pleas—the average sentence was 49.8 months, or just over four years.
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