June 10, 2023

NO WIGGLE ROOM:

United States of America v. Donald J. Trump and Waltine Nauta (Scott R. Anderson, Anna Bower, Hyemin Han, Tyler McBrien, Roger Parloff, Stephanie Pell, Katherine Pompilio, Alan Z. Rozenshtein, Benjamin Wittes Friday, June 9, 2023, Lawfare)

The indictment alleges that as president, Trump gathered hundreds of classified documents owned by the United States and kept them in cardboard boxes at the White House. Some of the documents contained information about "defense and weapons capabilities of both the United States and foreign countries; United States nuclear programs; potential vulnerabilities of the United States and its allies to military attack; and plans for possible retaliation in response to a foreign attack," the document says. 

Since the beginning of the Mar-a-Lago investigation, analysts and journalists have puzzled over the question of how classified material ended up at Mar-a-Lago: Was it a matter of staff shoving stuff in boxes and it ending up in moving trucks? Or was Trump somehow personally involved? The indictment addresses these questions. It clearly alleges that material ended up at Mar-a-Lago because of Trump's efforts to squirrel them away. 

In particular, beginning in January 2021, as Trump was preparing to leave the White House, prosecutors assert that Trump personally directed his White House staff to box a variety of items in anticipation of his departure, including "hundreds of classified documents[.]" Waltine Nauta, Trump's body man, a former member of the U.S. Navy, and Trump's co-defendant, was a part of the group directed to assist with this document transfer. 

As Trump prepared to leave office at noon on Jan. 20, 2021, the White House staff executed on his directions and delivered these boxes to the Mar-a-Lago Club in Palm Beach, Florida. At the moment he ceased to be president, the indictment states, Trump was no longer authorized to possess or retain these classified documents, nor was Mar-a-Lago an authorized location for the "storage, possession, review, display, or discussion of classified documents."

The handling of the boxes of classified documents at Mar-a-Lago reads like a dark comedy. For several months, prosecutors allege, some of the boxes were stored on a stage in one of the club's ballrooms. Nauta then moved them into the club's business center, until staff needed to use that room as an office, the indictment claims. The records were then moved--we swear we are not making this up--to a bathroom and a shower before staff ultimately emptied out a basement storage room so they could store the boxes there. More than 80 boxes were ultimately relocated to the storage room, which the indictment describes as being "reach[able] from multiple outside entrances, including one accessible from The Mar-a-Lago Club pool patio through a doorway that was often kept open."

While the boxes were being shuffled around Mar-a-Lago, the indictment alleges that Trump showed classified documents to third parties without security clearances on at least two occasions. Neither incident is clearly a predicate for any of the criminal charges brought in the indictment. Nor is it clear that they could be, as both occurred far from the Southern District of Florida where the matter will be tried. Instead, the special counsel appears to have included them in the indictment for another reason: to show that Trump understood what he was doing was wrong.

The first incident occurred in July 2021 at the Trump golf club in Bedminster, New Jersey, in a meeting with a writer and publisher of a forthcoming book--known from media accounts to be the autobiography of his former Chief of Staff Mark Meadows--as well as two Trump staffers, one of whom made an audio recording of the meeting at Trump's request. In this meeting, Trump allegedly disputed an account given by a senior military official--known from media accounts to be Chairman of the Joint Chief of Staff Mark Milley--noting fears that then-President Trump might order an attack on a foreign country by producing what he described as that official's own "plan of attack." "Secret. This is secret information[,]" Trump is quoted as saying in discussing the document, presumably from the audio recording. "See as president I could have declassified it....Now I can't, you know, but this is still a secret."

The second incident took place at the same location in August or September 2021. At a meeting with a representative from a political action committee, Trump is alleged to have produced a classified map of a foreign country where, he commented, an ongoing military operation was not going well. While no recording appears to be available, Trump is alleged to have told the representative that "he should not be showing the map" and urged the representative "to not get too close."

Throughout much of this period, the indictment alleges, Trump and his staff were also in active correspondence with the National Archives and Records Administration (NARA), which was seeking the return of the broader universe of presidential records that Trump had (improperly, in their view) taken with him when he left the White House. NARA began requesting the return of the documents in May 2021; by June, it was threatening to refer the matter to the Justice Department. In response, prosecutors contend, Trump and his staff at Mar-a-Lago appear to have begun preparing to send at least some documents back to NARA at its request.

Beginning in November 2021, Nauta and another employee--identified as "Trump Employee 2"--began bringing Trump boxes so that he could personally review their contents. The indictment quotes liberally from text messages and photographs they exchanged throughout this process, detailing Trump's progress in reviewing the boxes and their contents. Around this same time, Nauta found a box that had been knocked over and had its contents spilled on the floor. These included several documents visibly marked as classified. He documented the event in a photograph he sent to Trump Employee 2, which is included in the indictment. 

(Notably, however, when he was interviewed by the FBI in May 2022, Nauta allegedly indicated that he had no knowledge of any boxes being stored at Mar-a-Lago or any boxes having been brought to Trump for his review. These statements, which the government contends to be false, form the basis for one of the criminal counts against Nauta.)

On Jan. 17, 2022, Nauta sent 15 boxes of material back to NARA at Trump's direction. Upon reviewing them, NARA determined that 14 of the boxes contained classified material and referred the matter to the Justice Department. The FBI later identified 197 documents with classification markings in these boxes.

The Justice Department subsequently opened a criminal investigation in March 2022, and a federal grand jury investigation began in April 2022. As part of this latter investigation, the grand jury issued a subpoena on May 11, 2022, seeking the production of all documents with classification markings in Trump's possession, a subpoena which was served on one of Trump's attorneys a few days later. 

In a number of respects, how Trump and his staff responded to this subpoena forms the real gravamen of much of the criminal conduct alleged in the indictment.

According to the indictment, Trump met with two attorneys--identified as Trump Attorney 1 and Trump Attorney 2--on May 23 to discuss how to respond to the subpoena. These are almost certainly M. Evan Corcoran and Jennifer Little, respectively, two lawyers for Trump who were later compelled to provide information relating to their representation of Trump to the grand jury, following a still-sealed series of judicial rulings concluding that the lawyers' services were being used as part of an ongoing criminal scheme and that the materials thus fell within the scope of the crime-fraud exception to attorney-client privilege. 

The indictment quotes a "memorialization" by Trump Attorney 1 as indicating that Trump expressed reservations about having others review his documents. Trump is alleged to have repeatedly suggested that it would be better if no documents were found. Nonetheless, he agreed that Trump Attorney 1 could return to Mar-a-Lago on June 2 to search the boxes of presidential records brought from the White House to Mar-a-Lago for any documents with classification markings responsive to the subpoena. 

Over the next two weeks, before Trump Attorney 1's return, Nauta is reported to have brought approximately 64 boxes from the storage room to Trump's Mar-a-Lago residence at Trump's direction. The indictment gives a play-by-play of the movement of boxes, including time stamps and related text exchanges between Nauta and at least one Trump family member, identified as female but not specifically named. Only about 30 of those boxes were returned to the storage room before June 2, when Trump Attorney 1 arrived to review the documents removed from the White House. 

When he arrived that afternoon, Trump Attorney 1 was taken to the storage room to review the records located there, in which he found 38 documents with classification markings. He sealed these documents in a Redweld and prepared them for return to the FBI. After completing his search, Trump Attorney 1 met with Trump to discuss what he had found. During that discussion, Trump made what the indictment calls "a plucking motion," which Trump Attorney 1 later described in his memorialization as suggesting, "[W]hy 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."

Trump Attorney 1 then contacted a third attorney not involved in the search--identified in the indictment as Trump Attorney 3, whom we know from prior court filings to be Christina Bobb--and asked them to sign a certification he had prepared indicating that "[a] diligent search was conducted of the boxes that were moved from the White House to Florida" and that "[a]ny and all responsive documents accompany this certification." Trump Attorney 3 did so the next day in her purported capacity as the custodian of Trump's records. Shortly thereafter, the certification and 38 recovered documents with classification markings were handed over to Justice Department officials. In a meeting with those officials, in the indictment notes, Trump described himself as an "open book." Yet that same day, several boxes of presidential records that had been removed from the storage room were loaded onto an aircraft and flown north with Trump and his family for the summer.

Of course, as we now know, the story does not end there. The indictment confirms that, in July 2022, the FBI and grand jury obtained and reviewed surveillance video from Mar-a-Lago showing the movement of boxes, which led the Justice Department to secure a court-authorized search warrant. This, in turn, led to the FBI's search of Mar-a-Lago on Aug. 8, 2022, during which the FBI recovered 102 documents with classification markings from both the storage room and Trump's office.  

Posted by at June 10, 2023 5:59 AM

  

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