The indictment of Donald Trump has been released. You can view it here.

https://storage.courtlistener.com/recap/gov.uscourts.flsd.648653/gov.uscourts.flsd.648653.3.0_2.pdf

Trump has been charged with 37 counts relating to the retention of national defense information, conspiracy to obstruct justice, the withholding or concealment of documents and records, a scheme to conceal, and false statements and representations. (There is a 38th count in the indictment relating to his aide, Waltine Nauta.)

Here’s our quick assessment: it’s weaker than we thought.

Factual allegations

There’s a basic assumption – one that very well might be incorrect – underlying Special Counsel Jack Smith’s indictment. It’s that Trump “was not authorized to possess or retain” documents he “caused” to be taken from the White House to Mar-a-Lago in Florida. These boxes were stored at various locations in Mar-a-Lago, including the club’s ballrooms, business center, and storage room. In June of 2021 there were more than 80 boxes of documents stored there that related to Trump’s time in office.

Image The Special Counsel alleges that these documents included classified documents originated by, or implicating the equities of, numerous intelligence and governmental agencies, including the CIA, Department of Defense, and the National Security Agency. The Special Counsel further alleges that Trump made disclosures of classified information in private meetings at Mar-a-Lago. One example cited in the indictment was a recorded discussion (allegedly with Mark Meadows and his book writer) relating to a presentation made by Gen. Mark Milley’s plan of attack against Iran.

Starting in May 2021, the National Archives and Records Administration (NARA) demanded that Trump turn over the records he kept after his presidency. Some records were produced to NARA; however, some remained at Mar-a-Lago. NARA reviewed the records and found documents with classified markings. NARA then referred the matter to the Department of Justice for Investigation.

It should be observed that the DOJ opened the criminal investigation of Trump soon after. This wasn’t an investigation into obstruction; rather, the Biden DOJ targeted Trump for the possession of the records themselves.

In any event, the grand jury was opened in April 2022 and issued a subpoena to Trump, demanding all documents with classified markings. When Trump’s attorneys brought the matter to their client, Trump asked a number of questions regarding whether they had to comply with the subpoena:

While these are rhetorical questions a client is entitled to ask their lawyer, it appears that these are part of the foundation for the Special Counsel’s charges against Trump.

There’s an issue, however, with how some boxes were moved after the grand jury subpoena was issued. Trump aide Nauta, allegedly at Trump’s direction, moved boxes from the Mar-a-Lago storage room to Trump’s residence. There is no information that Trump knew that these boxes contained documents responsive to the grand jury subpoena, however.

In any event, after the search and the production, Trump attorney Christina Bobb signed a verification with the following claims:

It is further alleged that these statements were false – and that Trump caused these false statements – by moving the boxes. But again, the indictment is missing any allegation that Trump knew of this verification or the claims made by Bobb. They’re going to jail Trump for that??

The Charges

Counts 1-31: Willful Retention of National Defense Information – violation of 18 USC § 793(e)

Trump faces 31 counts for the retention of documents he was “unauthorized” to possess. These counts cite the possession of documents marked at various classification levels (secret, top secret). Many of these documents are said to discuss military capabilities of foreign countries. Here are some examples:

Count 32: Conspiracy to Obstruct Justice – violation of 18 USC § 1512(k)

It is further alleged that Trump conspired with his aide, Waltine Nauta, to “corruptly persuade another person to withhold a record, document, and other object from an official proceeding” and “to corruptly conceal a record, document, and other object from an official proceeding.”

In support of that count, the Special Counsel alleges that Trump and Nauta :

“suggested” to Trump attorney Evan Corcoran that they did not have documents subject to the grand jury subpoena;

Moved boxes to conceal from Corcoran and the FBI and the grand jury;

Suggested that Corcoran “hide or destroy documents” subject to the grand jury subpoena;

Provide incomplete responses to the grand jury subpoena;

Cause a “false certification” to be made regarding the production of documents; and

Made false and misleading statements to the FBI.

Count 33: Withholding a Document or Record – violation of 18 USC §§ 1512(b)(2)(A), 2

The Special Counsel also claims that Trump (and Nauta) attempted to persuade Corcoran to (1) “hide and conceal documents from a federal grand jury” and (2) they moved boxes of classified documents so Corcoran could not find them to produce to the grand jury.

Count 34: Corruptly Concealing a Document or Record – violation of 18 USC §§ 1512(c)(1), 2

It’s also alleged that Trump (and Nauta) “hid and concealed boxes that contained documents with classified markings from” Corcoran so that Corcoran “would not find the documents and produce them to a federal grand jury.”

Count 35: Concealing a Document in a Federal Investigation – violation of 18 USC §§ 1519, 2

Trump is further alleged to have hid and concealed his alleged continued possession of documents at Mar-a-Lago and that Trump “caused a false certification to be submitted to the FBI.” This certification relates to the one completed by useless attorney Christina Bobb, which we discussed here.

Count 36: Scheme to Conceal – violation of 18 USC §§ 1001(a)(1), 2

Related to the other charges we just discussed, Trump (and Nauta) are alleged to have knowing “hid and concealed from the grand jury and the FBI TRUMP’s continued possession of documents with classified markings.

Count 37: False Statements and Representations

Relating to the certification of Christina Bobb, Trump is alleged to have caused the following false statements to be made to the grand jury and to the FBI:

“A diligent search was conducted of the boxes that were moved from the White House to Florida”;

“This search was conducted after receipt of the subpoena, in order to locate any and all documents that are responsive to the subpoena” and

“Any and all responsive documents accompany this certification.”

The Special Counsel alleges these statements are false – and that Trump knew these statements were false – because Trump moved boxes of documents with classified markings before the search took place.

Yet as I wrote earlier, there’s no evidence that Trump knew that Bobb made this statement.

The indictment isn’t as strong as the media is telling you…