A court on Friday unsealed the federal indictment against Donald Trump and an aide over classified documents found at his Mar-a-Lago home and the men’s alleged efforts to keep the government from finding the materials. Here’s what we know about the charges against the former president, brought by special counsel Jack Smith.
How many charges does Trump face?
Trump is accused of violating seven federal laws but faces 37 separate charges. That is because each classified document he is accused of holding on to illegally is charged in a separate count, and his alleged efforts to hide classified information from federal investigators is charged in several ways. His longtime aide Walt Nauta faces six charges, all but five of which are also lodged against Trump.
What are the charges against Trump?
Espionage Act/unauthorized retention of national defense information: Trump is charged with 31 counts of violating a part of the Espionage Act that bars willful retention of national defense information by someone not authorized to have it. Such information is defined as “any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation.” Technically, that information does not have to be classified, but in practice the law is almost exclusively used to prosecute retention of classified material. In Trump’s case, prosecutors say that all but one of the 31 documents he is charged with illegally retaining were marked as classified at the “secret” or “top secret” level. The unmarked document concerned “military contingency planning,” according to the indictment.
A conviction does not require any evidence of a desire to disseminate the classified information; having it in an unauthorized location is enough. But the crime requires a "willful" mishandling of material "the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation." Charges are generally not brought without some aggravating factor making clear the retention was not accidental - such as evidence of intent to share the information, signs of disloyalty to the U.S. government, or simply the volume of documents taken.
Unlike other government employees, the president does not go through a security clearance process that includes a pledge to follow classification rules. But Trump received requests from the National Archives and Records Administration (NARA) and subpoenas from the Justice Department indicating that the documents in question were classified and needed to be returned to the U.S. government. Prosecutors say he instead sought to hide them from federal investigators. And while the president can declassify most information, there is a process for doing so. According to the indictment, Trump twice showed classified information to others, once while saying that the document was still classified and lamenting that he no longer had the power to declassify it.
Conspiracy to obstruct justice: Trump is charged with one count of conspiring with Nauta to hide the classified material from federal investigators, by lying to the FBI about what was found at Mar-a-Lago and moving boxes of documents out of a storage room before agents searched the home. Trump specifically is accused of suggesting that one of his attorneys lie to the FBI and help hide or destroy documents, which investigators had demanded with a subpoena.
Tampering with grand jury evidence: Trump and Nauta face two counts of trying to keep evidence out of grand jurors’ hands: one count of withholding the classified documents and one of corruptly concealing them. As part of those charges, Trump is accused of trying to persuade one of his attorneys to help conceal the documents, while Nauta is accused of hiding the evidence by moving the boxes of classified documents.
Concealing evidence in a federal investigation: For the same alleged conduct of hiding the classified information still at Mar-a-Lago, Trump and Nauta separately face one count of concealing evidence with the intent to obstruct an FBI investigation.
False statements: Both Trump and Nauta together face one count of scheming to making false statements for allegedly hiding from the FBI and the grand jury that the former president still had classified documents in his possession. Trump faces a separate count for causing his attorney to falsely claim in June 2022 that all classified documents in the former president’s possession had been handed over in response to a subpoena, according to the indictment. Nauta alone is accused of lying to the FBI by falsely claiming that he had nothing to do with moving any boxes.
What possible penalties does Trump face?
The maximum punishment for each count of unlawful retention of national defense information is 10 years in prison. Conspiracy to obstruct justice, tampering with grand jury evidence, and concealing evidence in a federal investigation all carry punishments of up to 20 years. Each false statement charge is punishable by up to five years in prison.
If Trump was convicted on all charges, the sentences could run consecutively, amounting to hundreds of years in prison. But federal defendants are rarely given the maximum possible punishment. He does not face any mandatory minimum sentences.
Sentences in unlawful retention cases vary widely, depending in part on how sensitive the material is, how much of it there is, how long the person held on to it and his or her cooperation with investigators. A Defense Department employee in Manila who took home a small amount of secret-level information to work on a classified thesis project served only three months behind bars. Kenneth Wayne Ford Jr., who was found guilty at trial of bringing home national defense information after leaving the National Security Agency and lying about the case, received a six-year sentence. A former NSA contractor who over two decades amassed a huge trove of highly sensitive material, including hacking tools and details of overseas operations, was sentenced to nine years in prison. A Navy sailor who took pictures of classified areas of a nuclear-powered submarine and then destroyed the evidence was sentenced to a year in prison for retention and obstruction; Trump later pardoned him.
Retired Gen. David H. Petraeus was given probation after pleading guilty to sharing classified information with his biographer. At the time, the crime of mishandling classified information - as opposed to national defense information - was a misdemeanor with a maximum punishment of a year behind bars. It became a felony during Trump's presidency.
What other criminal charges does Trump face?
Trump is charged in New York State Court with unrelated crimes for conduct that predate his presidency. He is accused of falsifying business records to hide payments during the 2016 campaign made to an adult-film star to keep her from saying publicly that she had an affair with Trump.
Trump is also under investigation by a state prosecutor in Georgia, who is looking at his efforts to overturn President Biden's 2020 victory in that state. Smith is also investigating Trump's attempts to stay in office after losing the presidential election, including his pressure on officials in battleground states and fundraising off false claims of election fraud.
Has Trump responded to the charges?
The former president described himself as “an innocent man” being treated unfairly in comparison with Biden. Classified documents from the Obama administration were discovered in Biden’s Delaware home late last year by lawyers cleaning out his home office. Biden’s attorneys turned those documents over to NARA, and the president gave the Justice Department permission to search the home, as well as his beach house and think tank office. The White House has said that only “a small number” of documents from Biden’s vice-presidential tenure were found. A special counsel has been appointed to oversee that investigation.