Donald Trump announces his 2024 presidential bid at Mar-a-Lago in November. Photo for The Washington Post by Thomas Simonetti
Former president Donald Trump said Thursday night that he has been indicted in connection with a criminal investigation into whether he took government secrets with him after he left the presidency and obstructed a subsequent investigation. Here’s what to know about the case.
THE CHARGES
The charges include illegal retention of government secrets, obstruction of justice and conspiracy, according to people familiar with the matter.
It’s illegal to mishandle classified information, which is supposed to be kept under lock and key in guarded government facilities. And it’s illegal to willfully steal or destroy any government document.
Trump also regularly flouted the Presidential Records Act, a Watergate-era law that says the presidents’ records are the governments’ property after the presidency ends. He ripped up official papers as president; one book even alleges he stuffed documents down the toilet at the White House.
But the coverup may be the bigger crime here; hence the obstruction-of-justice charge.
Investigators believe that after the government delivered its subpoena in May 2022, Trump told his staff to move some boxes out of the storage area where they were kept, including the day before FBI agents came to retrieve them. Investigators were also looking at whether Trump showed classified documents to other people, and whether he destroyed any government documents with the intent of hindering the investigation into what was at Mar-a-Lago. All of this could constitute obstruction of justice.
It’s not clear yet whether he’d face jail time if convicted or how a prosecution could affect his run for president. Even just taking secrets off government property can carry stiff penalties. A former government contractor accused of deliberately flouting the rules around storing classified material is serving a nine-year prison sentence. At least one crime related to classified information bars someone from holding public office if convicted.
HOW DID WE GET HERE?
• Presidents are supposed to hand over all official records after they leave the White House, and classified information in particular is to remain closely guarded by the government.
• After Trump left office in January 2021, the National Archives and Records Administration noticed that high-profile items such as his letters to North Korea’s leader were missing from its records. The agency spent more than a year trying to get official documents back from Trump’s Florida residence and private club, Mar-a-Lago. Trump eventually returned 15 boxes of documents, some of which turned out to be classified. That meant the FBI and the Justice Department got involved. The law enforcement agencies issued a subpoena demanding Trump hand over any records with classified markings that remained at Mar-a-Lago. Trump’s legal team returned an additional 38 documents. But the government had gathered evidence that Trump was hiding more classified records.
• It all culminated in an FBI search of Mar-a-Lago in August, where plainclothes agents – armed with a court-approved search warrant – spent nearly nine hours searching his clubhouse and carting away thousands of documents, about 100 of which were marked classified. “They even broke into my safe!” a surprised Trump decried that day. The papers with classified markings included highly secret information about a foreign country’s nuclear capabilities.
• Trump announced his run for president in November, and in an attempt to protect public trust in the criminal investigation, the Justice Department appointed an independent special counsel to continue examining whether Trump broke any laws.
THE EVIDENCE
• Documents: Throughout all of the searches, investigators found thousands of pages of government records, more than 300 of which were marked classified. Some appeared to include some of the nation’s most closely guarded secrets, such as top-secret information about Iran’s missile program and highly sensitive information about China.
• The witnesses: Investigators are relying heavily on Trump’s personal aides. They’re combing through emails and texts from Trump’s assistant during his move down to Florida to re-create his mind-set at the time. And they’ve talked to a loyal Trump aide, Walt Nauta, who said Trump told him to move boxes around after the government issued its subpoena in May demanding documents back. What Trump did after facing the subpoena seems to be the government’s main focus.
• Security footage: Investigators tracked down security footage at Mar-a-Lago corroborating what Nauta said. That’s important, because Nauta originally told investigators that he was not ordered to move boxes, and he later changed his story.
• Trump’s own statements: Investigators have an audio recording of Trump talking about a classified document related to Iran while at his golf course in New Jersey after leaving office. In the audio, it appears he wants to show someone the paper but knows he shouldn’t. They also have evidence that Trump asked lawyers to falsely say all government material had been turned over, and that he ignored repeated warnings from his own lawyers that he was illegally in possession of government property.
POSSIBLE MOTIVES
One of the biggest unanswered questions is why Trump would keep government secrets even as he faced increasing legal threats to give them back.
Investigators think Trump may have simply believed the documents were his to keep. Mixed in with classified documents were mementos from his presidency – newspaper clippings, a letter from former president Barack Obama, a map of the United States marked with Sharpie to cover his misstatement about the path of a hurricane.
“He was beyond proud of those Kim Jong Un letters,” former Trump aide Stephanie Grisham told The Washington Post in 2022. “He talked about them all the time, showed them to people all the time. He took those letters because he wanted them.”
The Post so far has not found evidence of a more nefarious reason to hoard classified documents, such as an intent to sell government secrets.
Classified documents have also been found in President Biden’s home and in an office he used after he left the vice presidency, as well as in former vice president Mike Pence’s home. But unlike Trump, both men appear to be willingly handing over the documents. The Justice Department has indicated it will not pursue charges against Pence. A special counsel is investigating Biden’s case.
THE DEFENSE
Trump’s defense is twofold, and legal experts point out there are some major holes in it.
1. His lawyers say Trump wasn’t aware there were classified documents in his midst. He has effectively blamed White House staff members for hastily packing on his way out the door. But Trump has not given a clear explanation for why he would keep classified documents at Mar-a-Lago after the government repeatedly asked for them back.
2. Trump also argued that as president, he could declassify documents whenever he wants – “even by thinking about it,” he’s claimed. That’s not true. Only current presidents can declassify information, and they’re supposed to follow a process. Trump’s lawyers have avoided arguing in court that Trump declassified documents on his way out.
As the investigation appeared to be wrapping up, his lawyers issued a strange letter asking Congress to tell the Justice Department to “stand down” from investigating Trump, an authority lawmakers don’t have. His lawyers did not offer a defense for why Trump kept the documents after he faced a subpoena to hand them back.
THE PROSECUTOR
After Trump announced he was running for president in November, Attorney General Merrick Garland decided to appoint a special counsel to continue the investigation. Garland said his aim was to insulate the investigation from any perception of politics, especially because Biden was widely expected to seek reelection (he has since launched his campaign).
Garland chose Jack Smith, a former war crimes prosecutor who also headed the Justice Department’s Public Integrity Section. As special counsel, Smith still briefs top Justice Department officials on his investigation. But Smith works far more independently than a Justice Department prosecutor would. And if Garland were to overrule a decision from Smith, he would have to issue a written report explaining his actions.
Smith is also investigating Trump’s efforts to overturn the 2020 election and whether he is criminally culpable for aspects of the Jan. 6, 2021, attack on the U.S. Capitol.
WHAT’S NEXT
Smith, the special counsel, had been sending subpoenas and bringing potential witnesses to a grand jury hearing evidence at a federal courthouse in D.C. But The Post recently reported that prosecutors had shifted their focus to bringing a significant portion of any charges at a federal courthouse in South Florida. Trump said he has been summoned to appear in federal court in Miami on Tuesday at 3 p.m.
OTHER INVESTIGATIONS
Since leaving office, Trump has been under significant legal peril from multiple investigations spanning multiple states and the federal government:
• In New York: He was indicted in April for allegedly falsifying business records to keep an alleged affair quiet during the 2016 election. He pleaded not guilty and faces a potential trial.
• In Georgia: A district attorney is looking into whether he broke state law when he tried to overturn his 2020 election loss in the state.
• With the Justice Department: Smith, the special counsel, is also looking at whether Trump incited violence in the Jan. 6 riot.
• Also in New York: A jury found he sexually abused a woman who alleged he raped her in the 1990s. Trump has maintained his innocence.
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