The criminal charges against Donald Trump continue to pile up.
On July 27, a superseding indictment was filed in the classified documents case against Trump, adding three additional charges to the 37 originally filed in June. Five days later, Special Counsel Jack Smith filed a new indictment over the former president’s efforts to overturn the results of the 2020 election.
The superseding indictment in the classified documents case alleges that Trump violated the Espionage Act by retaining a classified document described as a “presentation concerning military activity in a foreign country,” at his golf club in Bedminster, New Jersey, and that Trump conspired with two associates, Carlos De Oliveira and Walt Nauta, to obstruct justice by attempting to delete security camera footage at Mar-a-Lago in order to conceal it from the FBI and a grand jury.
Joining the show to discuss the additional charges in the classified documents case is David Aaron.
David is a Senior Counsel in the Washington, D.C. and New York offices of the law firm Perkins Coie. Before joining private practice, David was a prosecutor in the Justice Department's National Security Division, where he prosecuted Espionage Act violations and saw how the process works from the inside. This conversation was recorded on July 30, 2023.
Show Notes:
The criminal charges against Donald Trump continue to pile up.
On July 27, a superseding indictment was filed in the classified documents case against Trump, adding three additional charges to the 37 originally filed in June. Five days later, Special Counsel Jack Smith filed a new indictment over the former president’s efforts to overturn the results of the 2020 election.
The superseding indictment in the classified documents case alleges that Trump violated the Espionage Act by retaining a classified document described as a “presentation concerning military activity in a foreign country,” at his golf club in Bedminster, New Jersey, and that Trump conspired with two associates, Carlos De Oliveira and Walt Nauta, to obstruct justice by attempting to delete security camera footage at Mar-a-Lago in order to conceal it from the FBI and a grand jury.
Joining the show to discuss the additional charges in the classified documents case is David Aaron.
David is a Senior Counsel in the Washington, D.C. and New York offices of the law firm Perkins Coie. Before joining private practice, David was a prosecutor in the Justice Department's National Security Division, where he prosecuted Espionage Act violations and saw how the process works from the inside. This conversation was recorded on July 30, 2023.
Show Notes:
Paras Shah: The criminal charges against Donald Trump continue to pile up.
On July 27, a superseding indictment was filed in the classified documents case against Trump, adding three additional charges to the 37 originally filed in June. Five days later, Special Counsel Jack Smith filed a new indictment over the former president’s efforts to overturn the results of the 2020 election.
The superseding indictment in the classified documents case alleges that Trump violated the Espionage Act by retaining a classified document described as a “presentation concerning military activity in a foreign country,” at his golf club in Bedminster, New Jersey, and that Trump conspired with two associates, Carlos De Oliveira and Walt Nauta, to obstruct justice by attempting to delete security camera footage at Mar-a-Lago in order to conceal it from the FBI and a grand jury.
This is the Just Security Podcast. I’m your host Paras Shah.
Joining the show to discuss the additional charges in the classified documents case is David Aaron.
David is a Senior Counsel in the Washington D.C. and New York offices of the law firm Perkins Coie. Before joining private practice, David was a prosecutor in the Justice Department's National Security Division, where he prosecuted Espionage Act violations and saw how the process works from the inside. This conversation was recorded on July 30, 2023.
Hey, David, welcome back to the show. Thanks so much for joining us today.
David Aaron: Thank you. Thank you for having me.
Paras: We're going to talk about the new set of charges that are added in a superseding indictment for the Trump Mar-a-Lago retention of documents case and let's start with a new count, which is count 32, relating to a document that Trump reportedly showed to a writer, a publisher and two staff members at his resort of Bedminster in New Jersey. What do you make of the addition of this document and this charge?
David: Well, it's interesting, because this is a document that was referred to without being identified in the original indictment, and now it's been added as the thirty-second classified document that the former president is charged with unlawfully retaining after the original indictment came out. There was a lot of questioning going on in the press about, you know, why wasn't this charged and, you know, could the government really prove that there was a document being shown as opposed to papers rustling? Questions about whether the participants in the conversation were joking. So it's interesting now that the government has come back and said, there is a specific classified document that was being waved around that was being shown on that recording, and here it is. It's being charged in the indictment.
So it's interesting that they have decided to do that for a couple of reasons. One is, did they get new evidence, and another is, does this line up differently than the other documents with the requirements of the charged statute?
Paras: This document, according to the indictment, was actually returned to the National Archives on January 17, 2022. And that's the initial date that Trump provided a tranche of documents that the National Archives had requested. And just to remind listeners of the timeline here, there was another request, and his attorneys complied with that one on June 3, and August 8 was when the FBI actually searched Mar-a-Lago. So there's a couple of months there between when he produces the initial batch of documents and when there's an additional production of documents in response to a grand jury subpoena. Does the fact that he gave this document back make this a weaker charge in any way?
David: It definitely makes it more complicated if indeed this is a document that the former president had already returned. The end of 18 USC Section 793(e), which is the retention charge for these 32 documents —the end of the statute says, not only that the defendant have to have willfully retained a classified document or a National Defense Information document, but also has to fail to deliver it to the officer or employee of the United States entitled to receive it. Now here, there appears to have been willful retention. But, at what point can someone be said to have failed to deliver it to, you know, the officer or employee of the United States to whom they're supposed to give it? Certainly, for some period of time before returning it, there has been a failure to return it. But there really hasn't been a case that I'm aware of where the exact meaning of this, or the exact limits of failure to return it, or failure to deliver it, have been explored. I don't know of anyone ever having been charged after returning a document based on the period of time between their taking it and their returning it.
Paras: There's a long, almost page and a half, transcript of an audio recording that's actually now been released publicly. In that interview, he says a number of times that this is a secret document, that it's a sensitive document, that he could have declassified it when he was president, but he didn't. Does that play into anything about his culpability, or his mental state here around handling these documents?
David: It does. Now, looking at the cold transcript of the call, it appears very straightforward that all of the participants in the conversation, including the former president, were aware that it was classified, that it had not been declassified, and that it is still secret, as of the time of that conversation. When you listen to the audio, there's a tone to it that made me think perhaps they were joking, perhaps they were looking at a document that wasn't really a classified document, and they were somehow just just kind of being jocular about it in light of the allegations that were being made. And then now we see that the document is actually identified and charged, and the fact that it's in the indictment means that someone can say, there is a witness who can say, that document was there at the table while that conversation was happening. It would not be in the indictment if the prosecutors were not confident they could put forth enough evidence to prove this count beyond a reasonable doubt.
And so if that document was really there, and these statements are being made about it in the presence of that document, it's hard to see how these words mean anything other than the former president knew that it was classified and that he had not declassified it as president.
Paras: Right. So the context and the tone matters here, and we might need a witness to fill in some of that detail.
There's also another document that's mentioned in paragraph 36 of the superseding indictment, and it says that that's a classified map, which was shown to a representative of Trump's political action committee. But it doesn't appear that there's a charge related to showing that document. Why is that paragraph and that reference to that episode in the indictment?
David: It's hard to say. We'll see how the evidence comes out. This could be just an allegation that goes to the former president's state of mind, his awareness of classification issues, of security clearance issues. But, you know, sometimes an allegation gets into an indictment to expand the proof that prosecutors are able to get into evidence. If you allege something in an indictment, that provides a basis on which to argue that you can introduce evidence to prove that allegation.
So it could be that there's, there's atmosphere next to this, that the government wants to get in to help establish the President's overall awareness of issues attending classified information.
Paras: Let's also turn to the information in the charges around obstruction of justice, and the indictment goes into a remarkable amount of detail in reconstructing the events that happened here. It really lays out this sequence of events where Trump directs or appears to direct Carlos De Oliveira, who's a property manager at Mar-a-Lago, along with Walt Nauta to try to direct the destruction or potential destruction of this security footage. They go to an audio room that's located in the basement of Mar-a-Lago and they speak to a staff member who says he doesn't know how to do that, or doesn't have the approval to be able to do that. But it really reconstructs a lot of this with detailed excerpts of text messages and detail around how long the phone conversations were. What do you make of the obstruction of justice charges there, particularly even thinking back a little bit to the history of obstruction, including in the Muller report?
David: I would actually take it a step farther back and think about accusations that Donald Trump has made about other people who have deleted data or who have been accused of deleting data after it's been subpoenaed or identified as being of investigative interest. You may recall that candidate Trump made a variety of allegations about candidate Clinton deleting or causing to be deleted some electronic data to avoid its discovery. So if you think about the allegations that then candidate Trump made and the conclusions that heencouraged people to draw, what does it mean when someone deletes data? You know, that is the subject of an investigation.
He has told the United States, and this is admissible as evidence as a prior statement of a party. He has told the United States what he thinks it means when someone deletes data, or tries to delete data. When investigators are looking for it, it is highly inculpatory. When law enforcement expresses interest in data, and a subject's first impulse is to get rid of that data, it's clear that the subject thinks that the data is inculpatory. And this is where the phrase consciousness of guilt comes in that has been used again and again. Yes, people have discussed this case. So, you know, this is a circumstantial case here, but it's a pretty strong one. You know, the, the classic explanation of circumstantial evidence that a prosecutor might offer to a jury is that if you go to bed and there's no snow on the ground, and in the morning, you wake up and you see that there's snow on the ground, you can conclude that it snowed the night before, even though you didn't see it.
And when you line up the timeframe, the timeline the prosecutors have laid out in this indictment, it seems like there's a pretty strong inference that can be drawn that the communication went from the former president, to Nauta, and so on. You know, the directive to stop doing what you were doing, stop your travel that you were planning on doing, and go get this stuff, delete it, because the investigators are looking for it. And again, this is deleting footage of moving boxes. The moving boxes was itself an effort, as alleged in the indictment, to cover up a crime. So this it’s not just the crime, it's the cover up, it's not the first cover up, it's the second cover up.This is an effort to cover up evidence of a cover up of a crime. So that’s serious in and of its own right, but it is also devastating in terms of establishing consciousness of guilt.
Paras: And there are various ways to prove obstruction. Some of them are implicit, some of them are explicit, some of them are stronger and weaker than others. This seems like it's fairly inculpatory evidence, as you're saying. How is this likely to play with a jury pool that's in Fort Pierce, Florida?
David: So that is a big question here. What is the role of geography in this case? You know, as trial attorneys are, I am a believer in the jury system. Americans are ready to do their duty and honestly answer the judges questions. And judges are well equipped to pick jurors who can put aside their opinions, their preconceived notions.
I don't want to be too naive about that. Everyone's got something in the back of their mind, and all it takes is one to hang the jury. But I mean, here there is very strong evidence of the underlying crime, very strong evidence of the first level cover up and now additional evidence of an unsuccessful effort at a second level cover up. This is getting to the point where you'd really have to have a pretty big failure in your jury selection process, if someone got through who just was unwilling to consider the possibility of guilt here.
Paras: Right. And we'll have to see how it plays out, especially with the voir dire and jury selection, but we now have three defendants instead of two. And some of the defenses here might not actually involve needing to have access to the classified documents, particularly for Nauta and De Oliveira, because the charges there don't involve the retention of the documents themselves. They revolve around the obstruction and making material false statements to investigators. If you were the prosecutor, how do you think of sequencing the trials here, the facts here, how does that play out?
David: Well, it's interesting because there is this argument that, you know, De Oliveira doesn't actually need access to NDI, to National Defense Information, and neither does his counsel. But the Special Counsel's office did say that they are immediately contacting De Oliveria’s counsel to arrange for security clearance or at least reviewing of classified discovery. So there may be some need, or just in the interest of being completely forthcoming, the government may decide to have De Oliveria’s counsel get access to classified information.
That being said, the allegations, the charges against De Oliveira are much more limited than they are against Nauta and Trump. And because the judge gave the parties this longer calendar, you know, to get ready, it actually kind of freed the prosecutors up a little bit to add charges and to add defendants and to add some degree of complexity here.
You know, for the first indictment, it was foot on the gas, discoveries all packaged up. Here's an index of discovery, you know, relatively narrowly tailored indictment. We can do this in a few months. Let's speed right ahead. The judge gave a longer calendar than that. And so the imperative to keep things slimmed down and streamline went away a little bit for the prosecutors. And so, you know, the timeframe for the parties getting ready seems like a pretty reasonable time for De Oliveira’s counsel to get up to speed on the allegations that relate to De Oliveira.
Paras: Do you think that the longer calendar is the reason that these charges were brought now, or is there a reason that they weren't initially included in the first indictment?
David: So that's a big question mark. And I definitely think there's a but-for relationship here. I don't think that this charge would have been added had the prosecutors gotten the calendar that they wanted. So I don't know if it's the only cause behind adding De Oliveira.
There, there could be additional factors such as they were holding out hope that De Oliveira would cooperate despite the reports of what happened in that April queen for a day session. It could be that additional technical evidence became available, these Signal messages, maybe there was an issue pulling those from a phone and that issue was burned through. And so the prosecutors now have sufficient evidence to charge him. It could be that witness testimony became available, or became something that the prosecutors had more confidence and maybe they had greater ability to corroborate it, and that would support these charges.
My guess is it's a combination of factors. It's a combination of the additional time and either some strategic reason about adding him, such as failure to cooperate, or some tactical improvement in the case, such as the availability and reliability of additional evidence.
Paras: You've litigated complex espionage cases before. What are you looking for next in the coming months?
David: You know, I'm really interested to see — well, first of all, when you see a superseding indictment, it's always good to refer to it as the first superseding indictment. So will there be more superseding indictments. In this case, that's one thing I'm interested to see.
I am honestly interested to see what the defense comes up with. They're going to have to put some of it on paper, they're going to have to make some motions, or the prosecutors will make motions to eliminate to preclude defenses. And the defense team will have to respond to those. What the defense can possibly do here is going to be fascinating, and watching how the judge handles what will be aggressively made arguments of varying degrees of merit. This is going to be really interesting to watch. In a garden variety retention case, it is always very easy to say, what could the defendant possibly have to say, you know, in response to the government's case, and of course, the defense is under no obligation to make an argument. But here,it's not going to be a defense based simply on probable cause, there's going to be something and it has to be something that the former president's public statements are consistent with for the defense to come up with. I'm really interested to see what they come up with.
Paras: David, we’ll be watching this and covering it at Just Security. Thanks again for joining us and giving us your expertise. We always appreciate your time.
David: Thank you. It's good talking to you.
Paras: This episode was hosted by me, Paras Shah. It was edited and produced by Tiffany Chang, Michelle Eigenheer, Allison Mollenkamp, and Clara Apt. Our theme song is “The Parade” by Hey Pluto.
Special thanks to David Aaron. You can read all of Just Security’s coverage of the Trump indictments on our website. If you enjoyed this episode, please give us a five star rating on Apple Podcasts or wherever you listen.