“We have one set of laws in this country, and they apply to everyone,” Special Counsel Jack Smith announced in remarks Friday following the unsealing of the indictment of former president Donald Trump. This was no ordinary indictment. It was a speaking indictment, meaning it included more facts and evidence than the law required. No matter how much critics have tried to trivialize this investigation — the “phony boxes hoax indictment” says Representative Matt Gaetz, or delegitimize it — coming from a “weaponized Department of Justice,” the facts are clear. These charges derive from Trump’s open disregard of the law and nothing else, classic “unforced errors.”
One set of allegations in the 37-count indictment concerns the unlawful retention of national defense documents, part of the Espionage Act. Far from innocent mementos, these documents, the indictment reads, “included information regarding 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 retaliation in response to a foreign attack.” Should they get into the wrong hands they “could put at risk the national security of the United States, foreign relations, the safety of the United States military and human sources.”
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Nor was this inadvertent, as was the case with former vice president Mike Pence, or President Biden, where apparently classified information was swept into a box of clippings and photographs stored in a garage. The indictment alleges Trump actually went through the boxes, and told his staff where to put them. On one occasion, he cavalierly discussed with “a writer, a publisher and two members of his staff,” a “plan of attack” prepared for him by the Defense Department which he knew to be “highly classified.” The conversation was recorded and quoted in the indictment.
And the locations where he ordered sensitive documents be kept were mind-boggling — a ballroom, a bathroom, a shower, an office, and storage spaces — in resorts open to members and their guests, some at his Florida winter residence in Mar-a-Lago, some at his summer residence at the Bedminster Club in New Jersey.
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The indictment included pictures of boxes stacked up on a stage in a ballroom and crammed into a shower. One photograph showed a box with its contents spilled onto a floor, including a document marked “SECRET/REL TO USA,FVEY,” which meant that the information was releasable only to the Five Eyes intelligence alliances consisting of Australia, Canada, New Zealand, the United Kingdom, and the United States.
The indictment quoted Trump insiders — text messages of aides talking about his instructions, notes of his attorneys about their conversations with Trump. One Mar-a-Lago employee texted another: “Is it only papers he cares about?” A second answered: “Yes — anything that is not the beautiful mind paper boxes can definitely go into storage.” Papers, including classified documents, were then moved into a bathroom and a shower at Mar-a-Lago.
The second set of charges include obstruction of justice — obstructing the FBI and US Department of Justice investigation, which includes directing his attorneys to lie to the FBI and the federal grand jury, telling them that he did not have the documents he had, directing his personal aide Walt Nauta — who was indicted for making false statements to the FBI — to move boxes to conceal them from his attorneys and the government. And in one of the most shocking accusations, Trump suggested that one of his attorneys hide or destroy documents subpoenaed by the government. When Trump gave a folder of documents to his lawyer, he implied that if there were anything problematic in there, his lawyer should just destroy the documents. “Well, look isn’t it better if there are no documents?” Trump said.
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Similarly, this was no “one-off.” Trump’s obstruction began in 2021, shortly after he left office, and continued through 2022. When the National Archives and Records Administration, which was responsible for archiving presidential records, warned Trump to turn over the records (or they would refer the matter to the Department of Justice), Trump directed his employees to bring him the boxes he had stashed at Mar-a-Lago so he could review them. Trump, one aide said, was “tracking the boxes,” going through them all.
Fifteen boxes of documents were turned over to the National Archives, some marked “top secret.” Then in May 2022, the DOJ opened a criminal investigation and subpoenaed more. So involved was Trump in orchestrating a response, he changed his summer plans to supervise. He told his counsel to falsely certify that he was fully in compliance — while keeping the boxes from his lawyer that he did not want to be disclosed. After the Aug. 8, 2022, search of Mar-a-Lago, it was clear that Trump had not complied; more classified documents were found.
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No one who is accused of doing what Trump did would escape prosecution. But if Trump is reelected in 2024, he could direct the DOJ to dismiss the case, or try to do the unprecedented and constitutionally suspect — pardon himself. So, it was no surprise that the special counsel began his remarks with a statement, or maybe it was an exhortation — no one is above the law.
Nancy Gertner is a retired federal judge in Boston and a law professor at Harvard Law School.
