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Sunday, October 1, 2023

Part I: Trump’s Second Indictment (Over the Cliff Notes)

Part I: Trump’s Second Indictment (Over the Cliff Notes)

Courtesy of Teri Kanefield

Because of family obligations (my son’s graduation was Friday) I plan to do today’s blog post in two sections. Between now and Tuesday, I will post Part II: what we can expect next.

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:

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 ClubTrump 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.

From January 2021 until March 15, 2021:

A Mastodon reader asked: “Were party events held while these boxes were on the stage?” 

Answer: The indictment does not directly answer that question, but someone, presumably someone without security clearance, took this photograph and gave it to the DOJ. 

In May 2021, Trump ordered a storage room on the ground floor of the Mar-a-Lago club to be cleaned out and used to store “his boxes.”  The Storage Room could be reached from multiple outside entrances, including one accessible from The Mar-a-Lago Club pool patio through a doorway that was often kept open.

We are told that the storage room was easily accessible, and we get the detail that “the Storage Room was near the liquor supply closet, linen room, lock shop, and various other rooms.” 

(Nothing to see here folks. Just top-secret US documents stored in an unsecured room of a resort not far from the liquor supply closet.)

Also in May of 2021, Trump caused some of his boxes to be brought to his summer residence at The Bedminster Club (which is also not authorized for the storage of classified documents.)

Beginning in May, the National Archives (“NARA) “repeatedly demanded that Trump turn over presidential records that he had kept after his presidency.”

Beginning in June, the NARA “warned Trump through his representatives that if he did not comply, it would refer the matter to the DOJ.”

On June 24, 2021, Trump’s boxes that were in the Lake Room were moved to the Storage Room. At that point, there were more than 80 boxes in the Storage Room. (We get an image on page 13 of how this looked on June 24.)

In July of 2021, we have the first of two occasions in which Trump shared classified information with people unauthorized to have access to it. This happened at Bedminster during an interview with a writer, publisher, and two members of Trump’s staff.

Before the interview, the media published reports that, at the end of Trump’s term as president, a senior military official purportedly feared that Trump might order an attack on Country A and that the Senior Military Official advised Trump against doing so.

The entire interview was audio recorded with Trump’s permission. 

Upon greeting the writer, publisher, and his two staff members, Trump stated, “Look what I found, this was [the Senior Military Official’s] plan of attack, read it and just show . ..  it’s interesting.”

“[Trump] showed and described a plan of attack that he said was prepared for him by the DOD and a senior military official. He told the individuals that the plan was ‘highly confidential’ and ‘secret.’ He also said ‘as president, I could have declassified it, and, now I can’t, you know, but this is still a secret.’”

(Notice the word “showed.” Apparently Trump is showing a document.)

Later in the interview, Trump engaged in the following exchange:

TRUMP: Well, with [the Senior Military Official], uh, let me see that, I’ll show you an example. He said that I wanted to attack [ Country A ]. Isn’t it amazing? I have a big pile of papers, this thing just came up. Look. This was him. They presented me this — this is off the record, but — they presented me this. This was him. This was the Defense Department and him.


TRUMP: We looked at some. This was him. This wasn’t done by me, this was him. All sorts of stuff– pages long look.


TRUMP: Wait a minute, let’s see here.

STAFFER: [Laughter] Yeah.

TRUMP: I just found, isn’t that amazing? This totally wins my case, you know.


TRUMP: Except it is like, highly confidential.

STAFFER: Yeah. [Laughter]

TRUMP: Secret. This is secret information. Look, look at this. You attack, and —

* * *

TRUMP: By the way. Isn’t that incredible?


TRUMP: I was just thinking, because we were talking about it. And you know, he said, “he wanted to attack Country A , and what” . ..

STAFFER: You did.

TRUMP: This was done by the military and given to me. Uh, I think we can probably, right?

STAFFER: I don’t know, we’ll, we’ll have to see. Yeah, we’ll have to try to–

TRUMP: Declassify it.

STAFFER:—Figure out a yeah—

TRUMP: See as president I could have declassified it.

STAFFER: — figure out a — yeah.

TRUMP: See, as president, I could have declassified it.

STAFFER: Yeah [Laughter]

TRUMP: Now I can’t, you know, but it is still a secret.

STAFFER: Yeah [laughter] Now we have a problem.

TRUMP: Isn’t that interesting?

This was a remarkable exchange in which Trump wants to brag about this for a book, but he knows he can’t because the information is classified, but he does anyway. The exchange shows: 

    • Trump showing highly sensitive defense information to people who should not see it.
    • Trump knew he shouldn’t be showing it.
    • Trump acknowledged that he could have declassified it, but now he can’t. So he knows the procedures and ignored them.
    • The audio was recorded with Trump’s knowledge and consent. 
    • I assume that the DOJ has this audio. (🔥)

I can’t even imagine what Trump’s defense could possibly be. What he seems to be doing is just indiscriminately and stupidly running his mouth, boasting about how important he is/was and his cool documents. He did this not only in front of witnesses but while being recorded!

In August or September 2021, at Bedminster, we have the second incident of Trump sharing military secrets with individuals who shouldn’t be seeing it:  Trump showed a representative of his political action committee a classified map related to a military operation. He told the representative that he should not be showing it to the representative and that the representative should not get too close.

On December 7, 2021Nauta found several of Trump’s boxes fallen and their contents spilled onto the floor of the Storage Room, including a document marked SECRET REL TO USA, FVEY.

Nauta took the picture and texted it to another employee. Along with the photograph he snapped, Nauta send this text message: “I opened the door and found this.”

Employee 2 responded: “no oh no, and I’m sorry potus had my phone.”

On page 14, we get an image of how these spilled documents looked, plus an explanation that this marking means that the documents can be released only to the Five Eyes intelligence alliance consisting of Australia, Canada, New Zealand, the United Kingdom, and the United States.

One of the pictures included (1) a document with visible classified markings and (2) an employee within sight of these markings. (The employee’s image was redacted.)

What’s going on with Nauta? Evidently, other employees who handled these documents came clean. When called to the DOJ, they testified honestly, handed over text messages, and therefore had no criminal liability. If you are at work and your boss says, “Move those boxes” and you do, and later the FBI comes and says “you were handling top secret docs” you would not have the necessary mens rea to be prosecuted for a crime.

Nauta (as is explained later) lied to investigators for Trump.  For how a person like Nauta can get swept up in this, see my blog post from last week.

He can see that all of the other Mar-a-Lago folks were in there spilling everything they know including the text message he wrote, which puts him in very deep doo-doo because the DOJ can see exactly where he lied. (“Deep doo-doo” is an actual legal term in the field of criminal defense.)

On June 10, it was reported that “Nauta is joining Trump today as he travels to campaign speeches in Georgia and North Carolina…. during the first of which Trump blasted Special Counsel Jack Smith.” (Clever of Trump, right? Keep Nauta close so he doesn’t get the idea to go blab everything to the DOJ in an effort to get himself a better deal.)

Between November 2021 and January 2022, “Nauta and Employee #2, at Trump’s direction, brought boxes from the Storage room to Trump’s residence for Trump to review.” Employee #2 took a photograph of the boxes so Trump could see how many of his boxes were stored in the storage room. (And yes, the DOJ included the photograph.)

In November: Nauta and the employee had a text message conversation about Trump’s wishes regarding the boxes. Nauta replied, “He has one he’s working on in pine hall.”

After a Trump representative was in contact with NARA, Employee #2 texted the representative, “box will be wrenched out of him today, promise!” They discussed getting “new box covers before giving these to them on Monday.”

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:

(Attorney 1 is evidently Corcoran and the “memorialized” refers to the handwritten notes he was compelled to hand over to prosecutors. Notice “among others.” This suggests there are other statements that the DOJ is not disclosing yet.)

(What’s stunning here is how hard Trump is trying to keep these documents.)

Trump also told the following story to the lawyer:

 . . . he was great, he did a great job. You know what? He said, he said– that it was him. That he was the one who deleted all of her emails, the 30,000 emails, because they basically dealt with her scheduling and her going to the gym and her having beauty appointments. And he was great. And he, so she didn’t get in any trouble because he said that he was the one who deleted them.

(Doesn’t this sound to you like he was hinting to his lawyer that the lawyer should say he “deleted” or got rid of the documents to get Trump off the hook?)

They then arranged for Lawyer #1 (Corcoran) to search the boxes. Trump delayed a trip to Bedminster to be around when this happened.

Between May 23, 2022 and June 2, 2022, when Lawyer #1 searched, Nauta removed–at Trump’s direction–a total of approximately 64 boxes and brought them to Trump’s residence. The activities are memorialized by a Trump family member who texted Nauta:

(Unless I am misreading something, the idea was that Trump would pick documents to take to Bedminster so they would not be detected in the search. I’d also guess that the family member is Melania.)

June 2, 2022, the day Corcoran was scheduled to search, Trump spoke with Nauta on the phone at 9:29 and spoke for 24 second.

(So was there a search warrant for phone records?) 

“Neither Trump nor Nauta informed” Trump’s attorney #1 (Corcoran) that boxes had been removed.

When Corcoran arrived to search, Nauta took him to the Storage Room. Corcoran located 38 documents with classified markings. He sealed them up, then met with Trump. Trump asked, “Did you find anything . . . is it bad? Good?”

They discussed what to do with the sealed documents. During that conversation, Trump made a “plucking motion”as memorialized by Trump Attorney 1:

“He made a funny motion as though well okay why don’t you take them with you to your hotel room and if there’s anything really bad in there, like, you know, pluck it out. And that was the motion that he made. He didn’t say that.”

(So he was implying that Corcoran should just cause documents to disappear if they would make Trump look bad. !!!! Just wow. He assumed that someone lied to cover for Hillary Clinton. Calls to mind how Liars and cheaters often assume that everyone lies and cheats.)

That evening, Corcoran contacted the DOJ to say that an agent should come get the responsive documents. He also had Attorney #2 (evidently Christina Bobb) sign a waver even though she had nothing to do with the search. The certification said that a “diligent search” was conducted, and “any and all responsive documents accompany th is certification.”

(LIAR LIAR, Nauta had moved out those boxes before Corcoran could search.)

June 3: Trump told the Justice Department that he was an “open book.”

After June 3: The DOJ obtained surveillance footage showing boxes being moved out before the search.

August 8, 2022: The FBI searched pursuant to a court-authorized warrant. They found lots of classified stuff in the Storage Room and Trump’s office.

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

February 16, 2017, four years before TRUMP’s disclosures of classified information, Trump said at a press conference:

The first thing I thought of when I heard about it is, how does the press get this information that’s classified? How do they do it? You know why? Because it’s an illegal process, and the press should be ashamed of themselves. But more importantly, the people that gave out the information to the press should be ashamed of themselves. Really ashamed.

In other words, Trump himself, while president and running for office declared that the very crimes described in this indictment should be prosecuted. 

The Charges

  • 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 (Counts 37 and 38).
The government estimates 21 days to try the case.

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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