In June 24 remarks, former President Donald Trump made misleading claims about the reach of the National Archives and Records Administration and the federal charges he is facing for allegedly retaining classified documents after he was no longer in office. Trump also made an unsubstantiated claim about President Joe Biden.
- Trump complained that charging him for alleged Espionage Act violations is an “outrageous and vicious” legal argument because he’s not a spy. But other individuals who weren’t alleged to be spies have been convicted of violating the same section of that federal law concerning the willful retention of national defense information.
- Trump accurately quoted from a January New York Times article that said the National Archives can’t on its own enforce a request that a former president return presidential records to the government. What he left out was the part of the article that said NARA can refer suspected violations of law to the Department of Justice, as it did in Trump’s case.
- He also said that an IRS whistleblower “revealed that crooked Joe [Biden] sat in a room while his son Hunter messaged a Chinese Communist Party official” about money. But IRS agents told Congress in May that it hadn’t been established that Biden was with his son, as Hunter Biden claimed in a July 2017 WhatsApp message.
Trump made those claims at this month’s Faith & Freedom Coalition Conference in Washington, D.C., where he spoke for roughly 90 minutes.
The Espionage Act Claim
Trump is not the first non-spy to face charges under a section of the Espionage Act pertaining to the illegal retention of classified information, contrary to his suggestion that this is a novel legal strategy from federal prosecutors.
“[C]harging a former president of the United States under the Espionage Act of 1917, that’s like making nuclear weapons in your basement, isn’t it?” Trump said. “An act for a crime so heinous that only the death penalty would do, is one of the most outrageous and vicious legal theories ever put forward in an American court of law. … The Espionage Act has been used to go after traitors and spies. It has nothing to do with a former president legally keeping his own documents.”
As we’ve written before, Trump is not being charged as a spy. Instead, he has been charged — 31 times — with violating 18 U.S.C. 793 (e), which is the part of the Espionage Act that makes “unauthorized possession” of documents “relating to the national defense” a crime. Not only is it unlawful if an individual “willfully communicates, delivers, transmits” such documents to “any person not entitled to receive it,” the law also says it is illegal if a person “willfully retains the same and fails to deliver it to the officer or employee of the United States entitled to receive it.”
When Trump made a similar claim in a speech following his June 13 arraignment, CNN listed seven other people – all convicted between 2017 and 2023 – who were charged under the same provision of the Espionage Act. They include:
- Robert Birchum, an Air Force lieutenant colonel, who pleaded guilty in February to one count of unlawful retention of national defense information, and was sentenced on June 1 to three years in prison.
- Kendra Kingsbury, an FBI intelligence analyst, who pleaded guilty in October to two counts of willful retention of national defense information, and was sentenced on June 21 to 46 months in prison.
- Jeremy Brown, a retired U.S. Army Special Forces weapons sergeant, who was found guilty in December of retaining classified documents and other crimes, and was sentenced on April 7 to over seven years in prison.
- Ahmedelhadi Yassin Serageldin, a former Raytheon systems engineer, who pleaded guilty in December 2019 to “having unauthorized possession of, access to, and control over numerous classified documents, writings, and notes relating to the national defense, and then willfully retaining the same and failing to deliver them to the United States.” He was sentenced in July 2020 to 18 months in prison.
- Harold Thomas Martin III, a former government contractor, who pleaded guilty in March 2019 to willful retention of national defense information, and was sentenced four months later to nine years in prison.
- Weldon Marshall, a former defense contractor, who pleaded guilty in March 2018 to one count of unlawfully retaining national defense information, and was sentenced three months later to 41 months in prison.
- Nghia Hoang Pho, a former National Security Agency employee, who pleaded guilty in December 2017 to one count of willful retention of national defense information, and was sentenced in September 2018 to 66 months in prison.
None of the seven were alleged to have sold or shared classified information with a U.S. adversary, or otherwise to have engaged in espionage or spying.
The New York Times on NARA
Trump distorted the content of a New York Times article to falsely claim that the National Archives and Records Administration didn’t “have the right to ask” him to return the presidential records that he took to Mar-a-Lago after leaving the White House in January 2021.
“But even the New York Times, in a major article, big article, and they must hate… probably the writer was fired after he said this, but it said, headline, said that, ‘When it comes to asking for documents from former presidents, the only power that NARA has is to say, ‘Pretty please,'” Trump said. “Quote, ‘Asking nicely is about all they can do.’ And yet they reported me to the Department of Justice for criminal prosecution. They don’t even have the right to ask. And if they do ask, they have to be very nice. And I don’t have to give it.”
Trump accurately quoted from the Jan. 27, 2023, article written by White House correspondent Michael Shear. However, Trump left out the rest of what the article said.
Shear went on to write: “Enforcement of the laws governing presidential records and classified documents is up to the Justice Department, which has opened investigations into the actions of President Biden and former President Donald J. Trump, who have each discovered classified records at their homes.”
Shear also quoted Steven Aftergood, a specialist on government secrecy for the Federation of American Scientists, who said, “If there are violations of law, they can be referred to the Justice Department for action.”
That’s ultimately what happened in Trump’s case.
As we’ve written before, when NARA officials noticed hundreds of pages of classified documents in the boxes of presidential records that Trump’s team turned over in January 2022, NARA’s inspector general referred the matter to the Department of Justice on Feb. 9. After an initial review, the FBI opened a criminal investigation on March 30, looking into how classified documents ended up at Trump’s property and whether any additional classified documents remained there in unauthorized locations.
That investigation led to the FBI getting a grand jury subpoena for Trump to turn over additional classified records that he had at Mar-a-Lago, which led to the FBI getting a court-authorized warrant to search that Florida property when it was determined that Trump wasn’t fully cooperating.
Trump also has been charged with obstructing federal law enforcement’s efforts to obtain the requested documents.
In an interview last month with the House Ways and Means Committee, an IRS whistleblower who was overseeing the agency’s criminal tax investigation of Hunter Biden disclosed the agency obtained a WhatsApp message that Hunter Biden sent to a Chinese businessman in which he invoked his father’s name.
“For example, we obtained a July 30th, 2017, WhatsApp message from Hunter Biden to Henry Zhao, where Hunter Biden wrote: ‘I am sitting here with my father and we would like to understand why the commitment made has not been fulfilled,” Gary Shapley, a supervisory special agent for the IRS Criminal Investigation division on the Hunter Biden case, told the House committee on May 26.
Shapley continued reading from Hunter Biden’s WhatsApp message: “Tell the director that I would like to resolve this now before it gets out of hand, and now means tonight. And, Z, if I get a call or text from anyone involved in this other than you, Zhang, or the chairman, I will make certain that between the man sitting next to me and every person he knows and my ability to forever hold a grudge that you will regret not following my direction. I am sitting here waiting for the call with my father.”
It is the clearest example yet of the president’s son trading on his father’s name in his business dealings with foreign companies. But, during his June 24 speech at the Faith & Freedom Coalition event, Trump went beyond the known facts to make unsubstantiated allegations about Joe Biden.
Trump claimed that the Shapley “revealed that crooked Joe sat in a room while his son Hunter messaged a Chinese Communist Party official.” But Shapley and another IRS agent interviewed later by the committee could not confirm if Joe Biden was in the room with his son for the call, as Trump said. It is not even clear from their interviews if Joe Biden was aware of the business deal being discussed or aware that his son had used his name in the message — which took place six months after the senior Biden had left the vice presidency.
In a June 1 interview with the committee, an unnamed IRS case agent who identified Shapley as his supervisor was asked if he was “aware of any business that he was involved in with Joe Biden?” The agent started his answer by saying, “So this is a complicated issue,” citing circumstantial evidence — including the WhatsApp message — but no proof.
Both agents criticized federal prosecutors for their immediate response to the WhatsApp message.
“I went to the prosecutors with this, and they, again, came back at me with: Well, how do we know that? He could just be lying and claiming that the dad — that his dad’s there, but his dad is not there,” the unidentified case agent told the committee.
Shapley said the IRS wanted to get location data for the messages to determine if Hunter Biden and his dad could be “co-located,” which would put investigators on “better ground” to pursue Joe Biden’s possible involvement. Shapley and the case agent both said the FBI had rejected that suggestion at that point. The unidentified case agent said, “I don’t know if the FBI ever did anything with it,” referring to the suggestion to obtain location data.
Trump also falsely claimed that the mainstream media did not report about Hunter Biden’s WhatsApp message, and he made the unsubstantiated claim that “the Bidens” were paid “for absolutely no reason.”
“Now, can you imagine the newspapers not reporting this, not a word of it in any of them, in any of them, mainstream,” Trump said. “’I’m sitting here waiting for the call,’ he said, ‘With my father, I’m sitting here with my father waiting for the call.’ In other words, send us money. Within 10 days, the Bidens got $5.1 million from China for absolutely no reason.”
Contrary to Trump’s claim, all the major news outlets covered the disclosure of the WhatsApp messages on June 22, when the committee released both transcripts. The New York Times, the Washington Post, ABC News, NBC News and CBS News all wrote about the interviews, which included allegations that the IRS wanted to bring felony charges against Hunter Biden. Ultimately, as we’ve reported, the DOJ and Hunter Biden agreed to a plea deal on two misdemeanor tax charges.
“Two whistleblowers told Congress that IRS investigators recommended charging Hunter Biden with attempted tax evasion and other felonies, which are far more serious crimes than what the president’s son has agreed to plead guilty to, according to transcripts of their private interviews with lawmakers,” CNN said in a June 22 story, which also mentioned the WhatsApp message.
As for “the Bidens” receiving $5.1 million as a result of Hunter Biden’s threatening WhatsApp message, Trump is referring to a June 23 Fox News story about a separate Senate report released in 2020. That report showed that two firms linked to Hunter Biden received $5.1 million from CEFC Infrastructure Investment in August 2017 — not long after Hunter Biden’s WhatsApp message to Zhao, Fox reported. Shapley told the committee that Zhao is “one of the executives at CEFC.”
Despite Trump’s use of the phrase “the Bidens,” there is no evidence in the Senate report or in the interviews conducted by the House Ways and Means committee that Joe Biden received any of that money. It’s also not clear what Hunter Biden, a lawyer and consultant, did for the $5.1 million payment from CEFC Infrastructure Investment in August 2017, so we can’t substantiate Trump’s claim that it was “for absolutely no reason.”
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