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Trump’s Distortions of Federal Indictment

In the days leading up to his June 13 arraignment and in a speech several hours afterward, former President Donald Trump distorted what the federal indictment against him said and made faulty comparisons to other politicians’ actions.

  • Trump claimed the indictment against him contains “fake and fabricated charges.” In fact, Trump’s former attorney general, Bill Barr, called it “very detailed” and “very, very damning.”
  • Trump and Republican Sen. Lindsey Graham have misleadingly objected to Trump being charged under the Espionage Act, saying he wasn’t a “spy.” He was charged under a section of the act concerning willful retention of national defense documents.
  • Trump wrongly claimed the Presidential Records Act was “really the ruling act,” not the Espionage Act.
  • The former president mischaracterized the lengthy effort by the National Archives and Records Administration and the Department of Justice to retrieve presidential records and classified materials from him — claiming that he was “negotiating” with NARA and “the next thing I knew, Mar-a-Lago was raided by gun-toting FBI agents.”
  • Trump compared his situation to what he called the Bill Clinton “socks case.” But Clinton’s case was not about classified documents. It involved audiotapes of Clinton’s conversations with a historian documenting his presidency; the National Archives said the tapes were Clinton’s personal records, and a federal judge dismissed the case.
  • He claimed a photo in the indictment showed only “newspapers, personal pictures” spilling out of a box onto the floor. But some information is redacted in the photo, and the indictment says the spilled records included a classified document available only to a five-country intelligence alliance.
  • Trump claimed Hillary Clinton deleted “33,000 emails in defiance of a congressional subpoena.” He’s referring to personal emails, not government records, and there is no evidence she knew when they were deleted.
  • He falsely suggested that Biden is “obstructing” a federal review of more than a thousand boxes of Biden’s records. The FBI searched the Senate records that Biden had donated to the University of Delaware, and Biden’s attorneys gave federal officials the classified documents that were found at Biden’s home and former office.
  • Trump promoted a misleading claim that Biden “had to sign off” on the FBI’s criminal investigation of Trump. The investigation was already underway when the White House, following federal law, requested that the FBI be allowed to review 15 boxes containing classified documents that Trump gave to the National Archives in January 2022.

Trump made these claims in remarks from Trump National Golf Club in Bedminster, New Jersey, after his arraignment and in speeches and social media posts over several days beforehand, including a June 10 speech in Columbus, Georgia. On June 13 in a Miami courthouse, Trump was booked on 37 felony counts, including willfully retaining national defense information, conspiring to obstruct justice, withholding and concealing documents, and making false statements.

Not a ‘Baseless’ Indictment

In his post-arraignment speech in New Jersey, Trump claimed the indictment against him contains “fake and fabricated charges.” In Georgia, he called the charging document “ridiculous and baseless.” He added, “Many people have said that. Democrats have even said it.”

We are not aware of any Democrats who have said that. In fact, there are some allies — including those who worked in his administration — who have said the indictment is “very detailed … and it’s very, very damning,” as Trump’s former attorney general, Bill Barr, put it.

Trump waves during a visit to the Cuban restaurant Versailles after he appeared for his arraignment on June 13 in Miami. Photo by Alon Skuy/Getty Images.

“This idea of presenting Trump as a victim here — a victim of witch hunt is ridiculous,” Barr said on “Fox News Sunday” on June 11. “Yes, he’s been a victim in the past. Yes, his adversaries have obsessively pursued him with phony claims. And I’ve — and I’ve been by his side defending against them when he is a victim. But this is much different. He’s not a victim here. He was totally wrong that he had the right to have those documents.”

Law professor Jonathan Turley, a Fox News contributor who was a Republican witness during Trump’s first impeachment in 2019, described the indictment as “devastating” and “breathtaking.”

“Every indictment ever used against any of my clients has tended to diminish with time, but there are still some very damaging things in this indictment, not just the photographs, but an audio tape that the president is going to have to deal with,” Turley said June 9 on Fox News, referring to an audiotape of Trump meeting with four individuals at his New Jersey golf club and sharing with them what the former president described as a “highly confidential” and “secret” plan to attack a foreign country, reportedly Iran.

Asked what’s the most damning part of the indictment, former Trump White House lawyer Ty Cobb told CNN, “I think it’s very hard to triage what’s the most damning part because they do appear to have a document, a tape, a picture, a witness for virtually every phrase and allegation in here.” Having said that, he said one particularly damning part is Trump aide Walt Nauta moving boxes of documents at Trump’s direction to allegedly conceal classified documents not only from the FBI but from Trump’s attorney, Evan Corcoran.

No ‘Spy’ Charges

Trump and some of his defenders have scoffed at him being charged under the Espionage Act, saying there is no evidence he ever acted as a spy or shared sensitive information with a foreign adversary. But experts say that’s simply a mischaracterization or misunderstanding of the charges.

“Espionage charges are absolutely ridiculous,” Republican Sen. Lindsey Graham said on ABC’s “This Week” on June 11. “Whether you like Trump or not, he did not commit espionage. He did not disseminate, leak or provide information to a foreign power or to a news organization to damage this country. He is not a spy. He’s overcharged.”

In his speech in Bedminster, New Jersey, following his arraignment in Miami, Trump said, “The Espionage Act has been used to go after traitors and spies and has nothing to do with a former president legally keeping his own documents.”

Trump also raised the “spy” straw man in his speech in Georgia. Trump noted that when he left office, there were photos taken of boxes of documents stacked on the sidewalk outside the White House prior to their transport to Florida.

“If that’s a spy operation or if that’s something bad, we did a very poor job, I will tell you,” Trump said.

“No one is suggesting that it was a crime for Trump to have boxes moved from the White House to Florida,” David Alan Sklansky, a professor who teaches criminal law at Stanford University, told us via email. “The problem was what was in some of those boxes–namely, highly sensitive documents relating to the national defense–and how Trump reacted when the government told him to return those documents. That’s what was criminal, not having boxes shipped to Florida.”

The indictment alleged that Trump was “personally involved” in having boxes, “containing hundreds of classified documents,” shipped to Mar-a-Lago at the end of his term, and then failed to return those documents to the federal government. The indictment does not accuse Trump of acting as a spy.

Rather, Trump was charged with 31 alleged violations of 18 U.S.C. 793 (e), a section of the Espionage Act concerning the willful retention of national defense information. That part of the law makes it a crime to have “unauthorized possession” of documents “relating to the national defense.” It is not only unlawful if someone “willfully communicates, delivers, transmits” such documents to “any person not entitled to receive it” — which the indictment alleges Trump did twice, once to an author and once to a staffer at his political action committee — but 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.”

“Trump is not accused of committing espionage, or being a spy,” Sklansky said. “He is accused of illegally holding onto documents with sensitive information about the national defense, lying to federal investigators, obstructing justice.” The Espionage Act “contains a bunch of different criminal prohibitions related to national defense and national security; one of them applies to anyone who, without authorization, holds onto documents with sensitive national defense information. That’s one of the crimes that Trump is accused of having committed. But he is not charged with ‘espionage’ or with being a ‘spy.’ Those words do not even appear in the indictment.”

Presidential Records Act Not ‘Ruling’ Over Espionage Act

In his speech in Georgia, Trump argued that prosecutors improperly ignored the “ruling” Presidential Records Act to charge him under the Espionage Act.

“And as president, all of my documents fell under what is known as the Presidential Records Act, which is not at all a criminal act, everything,” Trump said. “It’s all judged by the Presidential Records Act. In this whole fake indictment, they don’t even once mention the Presidential Records Act, which is really the ruling act, which this case falls under 100% because they want to use something called the Espionage Act. Doesn’t that sound terrible? Oh, espionage. We got a box. I got a box.”

Trump echoed that argument in his post-arraignment remarks in Bedminster, saying, “As president, the law that applies to this case is not the Espionage Act, but very simply the Presidential Records Act, which is not even mentioned in this ridiculous 44-page indictment. Under the Presidential Records Act, which is civil, not criminal, I had every right to have these documents. The crucial legal precedent is laid out in the most important case ever of this subject known as the Clinton socks case.”

We’ll get to the “Clinton socks case” later, but Jason R. Baron, former director of litigation at the National Archives and Records Administration, told us, “The former president is simply confused on the law when he says that the Presidential Records Act ‘rules’ over the Espionage Act or other provisions of the criminal code set out in the Indictment. The criminal acts charged in the Indictment stand independently of the former President’s separate failure to follow the requirements of the Presidential Records Act.”

“Under the Presidential Records Act, no boxes of presidential records should ever have been transferred to Mar-A-Lago,” said Baron, who is currently a professor at the University of Maryland. “President Trump has, however, been charged under the Espionage Act, in part because his unauthorized removal of records in those boxes related to the national defense, coupled with his willful retention of those documents at Mar-A-Lago, constitutes a crime.”

But Trump is also wrong to suggest the Presidential Records Act somehow shields him from prosecution, Sklansky told us.

“Neither the Presidential Records Act nor any other federal statute allows a former president to continue to hold onto documents with sensitive information relating to the national defense,” Sklansky said. “If Trump and his lawyers think differently, they can and should argue the point in court. But they’ll lose.”

The PRA and the National Archives

As Trump has done before, he wrongly claimed he was “negotiating” with the National Archives and Records Administration “just as every other president has done” and “the next thing I knew, Mar-a-Lago was raided by gun-toting FBI agents.”

That’s a distortion of the more-than-yearlong effort by the federal government to retrieve classified material and presidential records Trump had at his Mar-a-Lago home.

The former president made those comments in Georgia on June 10 and made similar remarks from his New Jersey golf club. At other times, he has said the Presidential Records Act allowed him to negotiate with NARA for the return of presidential materials. He invoked the PRA in a June 9 Truth Social post, claiming: “Under the Presidential Records Act, I’m allowed to do all this.”

He is not. While a president can keep personal materials, he or she cannot keep presidential documents — per the Presidential Records Act.

The PRA says that after a president’s term, the archivist “shall assume responsibility for the custody, control, and preservation of, and access to, the Presidential records of that President.” The materials a president can keep are “personal records,” or those “of a purely private or nonpublic character which do not relate to or have an effect upon the carrying out of the constitutional, statutory, or other official or ceremonial duties of the President,” the act says.

Baron, the former director of litigation at the National Archives and Records Administration, told us for a previous article on this topic that “presidential records are owned by the American people, not the president himself. … When President Trump’s term in office ended on January 20, 2021, all of his presidential records were required to be transferred to the National Archives and Records Administration.” 

As we’ve explained, NARA first asked Trump for missing presidential records on May 6, 2021, and continued asking for months, before getting 15 boxes of records on Jan. 18, 2022, according to the Department of Justice’s affidavit. When NARA then discovered classified documents among those records, it notified the DOJ.

On May 11, 2022, Trump’s office received a grand jury subpoena seeking additional classified documents. In response, Trump’s lawyers the following month handed over an envelope with 38 classified documents.

But that still wasn’t all of the classified documents Trump had in his possession. And the indictment describes how Trump had directed Nauta “to move boxes of documents to conceal them from Trump’s attorney, the FBI, and the grand jury.”

In August, the FBI obtained a court-approved search warrant  — contrary to Trump’s claim in New Jersey that the FBI search was “a flagrant violation of the Fourth Amendment of the Constitution which protects the right against unreasonable search and seizure.” The FBI retrieved “over one hundred unique documents with classification markings,” according to a court filing.

‘Clinton Socks Case’

Trump has suggested that his situation is similar to what he has referred to as the “Clinton socks case,” which was not about classified documents.

“They also don’t mention the defining lawsuit that was brought against Bill Clinton and it was lost by the government, the famous ‘socks case’ that says he can keep his documents,” Trump said in his Georgia remarks.

He was wrongly describing a court case about taped conversations between Clinton and historian Taylor Branch that were recorded over several years. Clinton kept the audiotapes, an oral history of his presidency, in a sock drawer, and the interviews were the basis of Branch’s 2009 book, “The Clinton Tapes: Wrestling History with the President.”

In 2010, Judicial Watch, a conservative legal group — not the government — filed a lawsuit to get the National Archives to take custody of the tapes, which Judicial Watch argued were official presidential records that belonged to the government. However, NARA countered that the tapes were Clinton’s “personal records” under the Presidential Records Act, and a federal judge granted NARA’s motion to dismiss the suit in 2012.

“NARA does not have the authority to designate materials as ‘Presidential records,’ NARA does not have the tapes in question, and NARA lacks any right, duty, or means to seize control of them,” District Judge Amy Berman Jackson said in the ruling. She wrote, “Since plaintiff is completely unable to identify anything the Court could order the agency to do that the agency has any power, much less, a mandatory duty, to do, the case must be dismissed.”

Photo of Spilled Documents

The indictment included a photo of a box of documents at Mar-a-Lago that had been spilled onto the floor — one of two photos taken by Trump employee Nauta in December 2021, the indictment says, when Nauta found the spilled contents, including a classified intelligence document, on the storage room floor at Mar-a-Lago.

Photo in indictment, taken by Nauta in December 2021.

Trump’s “unlawful retention of this document” is count 8 of the indictment.

The document was marked “’SECRET//REL TO USA, FVEY,’ which denoted that the information in the document was releasable only to the Five Eyes intelligence alliance consisting of Australia, Canada, New Zealand, the United Kingdom, and the United States,” the indictment says.

But Trump wrongly claimed on Truth Social that the photo “clearly shows there was no ‘documents,’ but rather newspapers, personal pictures, etc.” He referred to this photo again in New Jersey, saying it shows that the boxes were “full of newspapers, press clippings, thousands of pictures.” There are newspapers and pictures visible in the photo, along with “visible classified information redacted,” the indictment says, which we can see as a black redaction mark at the top of one page.

In his Georgia speech, Trump also baselessly suggested the FBI might have turned over that box: “Somehow somebody turned over one of the boxes. … I said, ‘I wonder who did that? Did the FBI do that?’” The FBI searched Mar-a-Lago in August, several months after Nauta reportedly took that photo — and texted it to another Trump employee.

Revisiting Clinton’s Emails

In arguing that he is being unfairly prosecuted, Trump has returned to distorting the facts about the FBI investigation of Hillary Clinton’s handling of classified information while secretary of state. His allies have done the same.

A quick refresher: Clinton, who lost to Trump in the 2016 presidential election, used a private server to conduct government business. After an initial review, the inspectors general for the State Department and Intelligence Community referred the matter to the FBI to investigate a “potential compromise of classified information.”

The FBI investigation ended about a year later without any charges.

As we have written, the FBI reviewed about 45,000 of Clinton’s emails and found more than 100 that contained classified information at the time they were sent or received. Only three emails were marked with the letter “C” in the body of the email to indicate they were classified, according to then-FBI Director James Comey.

Comey described Clinton’s actions as careless — not criminal — when he announced on July 5, 2016, that he would not file charges.

“In looking back at our investigations into mishandling or removal of classified information, we cannot find a case that would support bringing criminal charges on these facts,” Comey said. “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. We do not see those things here.”

By contrast, the FBI investigation of Trump resulted in a 37-count indictment that alleges the former president did exactly what Comey described as actions that would justify criminal charges.

Trump has been charged with the “willful retention of national defense information” after he left office, including “information regarding defense and weapons capabilities of both the United States and foreign countries.” He also has been charged with counts of “conspiracy to obstruct justice,” “withholding a document or record,” “corruptly concealing a document or record,” and “concealing a document in a federal investigation.”

In speaking to supporters at his club in New Jersey after the arraignment, Trump accused Clinton of obstructing justice — even though federal agents found no evidence of it in her case.

“When caught, Hillary then deleted and acid-washed … 33,000 emails in defiance of a congressional subpoena,” Trump said. “The subpoena was there, and she decided to delete, acid wash and then smash and destroy her cell phones with a hammer,” Trump said. “And then they say I participated in obstruction?”

Trump said something similar in his June 10 speech in Georgia. “Hillary deleted and acid-washed 33,000 emails in defiance of a congressional subpoena. She already had the subpoena,” Trump said in Georgia. “And her aide smashed and destroyed iPhones with a hammer.”

Trump is referring to personal — not work-related — emails, and there is no evidence Clinton knew when or how they were deleted.

Here’s what happened: In response to a State Department request for work-related emails, Clinton’s lawyers conducted a review and gave the department 30,490 work emails in December 2014. There were another 31,830 private emails that Clinton said she no longer needed, and her attorneys asked a contractor managing Clinton’s server to dispose of them. But the contractor did not delete the personal emails until late March 2015 — according to the FBI’s two-part summary of its investigation — roughly three weeks after a GOP-led House committee served Clinton with a subpoena to produce emails related to the deaths of four Americans in Benghazi in 2012. (For more, see “A Guide to Clinton’s Emails.”)

The FBI did recover nearly 15,000 of Clinton’s emails that had been deleted — including “several thousand” that were work-related, according to Comey. But the FBI “found no evidence that any of the additional work-related e-mails were intentionally deleted in an effort to conceal them,” he added.

As for Trump’s remark about Clinton’s aide using a hammer to destroy mobile phones, the FBI found (see page 9) that on two occasions a Clinton aide transferred data from old phones to new phones and then “destroyed Clinton’s old mobile devices by breaking them in half or hitting them with a hammer.” This occurred while she was still in office – not during the FBI and congressional investigations. And, as we wrote, security experts interviewed by the technology website Wired said “physical destruction” is the “best way” to remove old data.

While the FBI found no evidence that Clinton tried to intentionally conceal evidence, that’s not the case with Trump. After being served a grand jury subpoena for classified documents in his possession, Trump allegedly conspired with a personal aide to conceal classified documents not only from the government but his own attorney who was charged with responding to the subpoena, according to his indictment.

Biden’s Boxes of Documents

In Georgia, Trump falsely suggested that Biden is “obstructing” a federal review of more than a thousand boxes of Biden’s U.S. Senate records, which the FBI has searched.

“And by the way, Biden’s got 1,850 boxes,” Trump said in Georgia. “He’s got boxes all over the place. He doesn’t know what the hell to do with them, and he’s fighting them on the boxes. He doesn’t want to give the boxes. And then they say, ‘Trump is obstructioning.’ He’s obstructing.”

In New Jersey, Trump similarly said Biden “refuses to give them up and he refuses to let people even look at them.”

In 2012, Biden donated over 1,850 boxes of records from his years as a senator to the University of Delaware, as we’ve explained before. At the time of the donation, Biden and his alma mater agreed that the materials would be publicly available “no sooner than the later date of December 31, 2019, or two years after the donor retires from public life.” 

But when Judicial Watch and the Daily Caller sought to gain access to Biden’s Senate records through Freedom of Information Act requests, a Delaware Superior Court judge ruled in October that the university did not have to comply with the requests. (Another hearing, before the Supreme Court of Delaware, is scheduled for June 14.)

However, the FBI, with Biden’s consent, did search the boxes of documents in January and February. Agents took “multiple boxes” of papers for further review, but none of them appeared to have classified markings, CBS News reported

Biden also consented to FBI searches of his home in Wilmington, Delaware, and his former Washington, D.C., office space, where documents with classified markings were discovered by Biden’s attorneys in the fall and winter. Biden’s vacation home in Rehoboth Beach also was searched, but the FBI found no classified documents.

As we’ve written, the documents found at Biden’s old office were turned over to NARA and then reported to DOJ, while DOJ investigators took possession of the documents found at Biden’s Wilmington home, including in storage space in his garage.

Biden’s FBI Access Request

On Truth Social on June 9, Trump shared a video clip of Fox News radio personality Mark Levin questioning Biden’s role in Trump’s documents case and misleadingly claiming that Biden had to “sign off” on the investigation.

“Is this some kind of a sick joke on the American people?” Levin asked on his June 8 show. “Joe Biden says he never told them what to do. Joe Biden had to sign off on this becoming a National Archives case, to have it go to the Department of Justice. Who does he think he’s lying to, the American people?”

In New Jersey, Trump went further, claiming without evidence that Biden “had his top political opponent arrested.”

As we’ve written, the Justice Department first became involved in February 2022 — not because of Biden, but because the NARA inspector general notified DOJ that hundreds of pages of classified documents were in the 15 boxes of documents that Trump’s team returned to NARA in January. “After an initial review of the NARA Referral, the Federal Bureau of Investigation (FBI) opened a criminal investigation,” according to the FBI affidavit that was used to get the warrant, authorized by a federal judge, which allowed agents to search Mar-a-Lago for unreturned documents on Aug. 8.

The FBI’s investigation began March 30, Trump’s federal indictment says.

So that the FBI and other intelligence officials could review the boxes of documents that NARA reported, DOJ, by federal law, asked the White House to submit a “special access request” to NARA. That’s because, under the Presidential Records Act, executive branch departments and agencies, under certain conditions, can request access to records in NARA custody through the sitting president, not through NARA.

NARA said the White House, via its counsel’s office, submitted the request on April 11, 2022, which was 12 days after the FBI’s criminal investigation began. Trump’s legal team then proceeded to block the FBI from gaining access by claiming the documents were covered by executive privilege, so Biden and the White House deferred a final decision to Debra Steidel Wall, NARA’s acting archivist at the time. She notified Trump’s team on May 10, 2022, that NARA would grant the FBI access to the 15 boxes of documents.

None of that means Biden signed off on “this becoming a National Archives case, to have it go to the Department of Justice,” as Levin claimed. The FBI already had started investigating how classified documents ended up at Trump’s property and whether any additional classified documents remained there in unauthorized locations.

There also is no evidence that Biden had Trump arrested, as Trump claimed.

Trump was indicted by a federal grand jury, based on evidence presented by Jack Smith, the special counsel that Attorney General Merrick Garland assigned to the investigation in November.

Biden told reporters on June 9 that he has not, and will not, talk to Garland about Trump’s indictment.

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