The case of confidential documents
United States District Court for the Southern District of Florida
Federal prosecutors, led by Special Counsel Jack Smith, accused Trump of taking highly sensitive national security documents when he left the White House in January 2021. He hid those documents haphazardly throughout his Mar-a- Lake and has thwarted repeated government attempts to recover them, prosecutors say. On at least two occasions, Trump has shown confidential documents to people who were not authorized to view them, prosecutors say. During one of those episodes – which was audiotaped – Trump allegedly said: « As president I could have declassified him » but « now I can’t », adding that the document he was showing to others was « still a secret ».
In early 2022, the Justice Department opened an investigation into Trump’s retention of classified documents after his presidency. In June 2022, a lawyer for Trump said Trump had turned over all of the classified documents, but two months later the FBI searched Mar-a-Lago and seized 102 documents with classified marks. Smith was named in November 2022 to lead the investigation, and for months a federal grand jury in Washington, DC, reviewed evidence and heard testimony, including testimony from some of Trump’s own lawyers. Smith’s team then requested an indictment from a grand jury in Florida. On June 9, 2023, that indictment was opened, charging Trump with 37 felonies and his longtime aide, Walt Nauta, with six felonies.
Trump is expected to become an authority and appear in court on June 13, 2023.
The Espionage Act makes it a crime to keep records containing sensitive national security information. The first 31 charges against Trump stem from 31 specific documents that he allegedly amassed in Mar-a-Lago and refused to return, even though he no longer had the right to possess them after his presidency. Of the 31 documents, 30 were marked classified and many related to foreign military capabilities, military activities or nuclear weapons, according to the indictment. The remaining six felony counts stem from Trump’s alleged efforts to obstruct the investigation, including ordering Nauta to move the boxes in hopes that neither Trump’s lawyers nor the FBI would discover some of the classified documents.
Most legal experts, including conservatives, have described Smith’s prosecution as an exceptionally persuasive case. It contains evidence from Trump’s own statements—including a tape shot—that he knew he wasn’t allowed to keep classified material, but he did it anyway. The evidence of the obstruction — including instructing Nauta to move boxes and apparently prompting his attorney to withhold documents from the FBI — is equally compelling.
Trump also appears to have publicly admitted that he knowingly withheld the documents after leaving the White House. During a CNN town hall in May 2023, Trump said he « took the docs » because he was « authorized » by him. Indeed, the Presidential Records Act makes it clear that presidential records are owned by the federal government, not an outgoing president. And several federal laws tightly control how classified documents can be viewed and stored.
While president, Trump had broad authority to declassify documents. If Trump can demonstrate that he declassified the documents in question before leaving the White House, he may be able to weaken the allegations. To date, however, there is no evidence that Trump did.
The prosecution was given an unfortunate break when the case was assigned to Judge Aileen Cannon, a Trump appointee who has a history of delivering sentences very favorable to Trump. If Cannon continues to preside over the case, she will have broad authority over both the pace of the proceedings and a number of preliminary litigations, such as potential disputes over whether information obtained by Trump’s lawyers can be admitted as evidence.
Trump’s legal team
Corcoran made detailed notes about his interactions with Trump during the investigation of the documents. A judge ordered Corcoran to turn over the notes to prosecutors under the so-called criminal fraud exception to attorney-client privilege. The notes became crucial evidence in support of the accusation.
Trump aide and co-defendant
Nauta is Trump’s longtime « body man. » Prosecutors say he became Trump’s co-conspirator in an attempt to hide classified documents.