It was political and legal déjà vu. Former President Donald Trump was indicted. Days later, he was ushered into a nondescript courthouse where he entered a not guilty plea, mostly hidden from the public. He cruised from the courthouse, boarded his private jet and flew to one of his resorts. He ended the night by addressing Americans with a litany of false and misleading defenses.
Trump’s June 13 remarks at his Bedminster, New Jersey, club shared more than a resemblance to his April 4 remarks at his Mar-a-Lago resort after being indicted in New York City. In both addresses, Trump misrepresented laws governing the handling of sensitive and classified papers and made misleading comparisons with Democratic politicians. As in April, guests booed Trump’s targets, laughed at his jokes and cheered him on.
“Nice birthday,” he said sarcastically on the eve of his 77th birthday.
Earlier in the day, Trump appeared in federal court in Miami to answer for more than three dozen charges brought by Justice Department Special Counsel Jack Smith. Most of the charges relate to “willful” and unauthorized possession of federal documents, some of which were classified.
Trump has long maintained that he had the right to possess the documents. Now, this argument will be tested in court. We fact-checked his post-arraignment remarks.
“The Espionage Act has been used to go after traitors and spies. It has nothing to do with a former president legally keeping his own documents.”
Trump’s phrasing is misleading. Not all of the crimes covered by the 1917 Espionage Act involve the commonly understood category of “spying.”
The indictment says Trump violated a section of the law that refers to someone who “willfully retains” a covered document and “fails to deliver it to the officer or employee of the United States entitled to receive it.”
The government does not have to prove that Trump was giving documents to a foreign power to use against the United States, said Joan Meyer, a former prosecutor and partner at the law firm Thompson Hine LLP.
Legal experts say Trump’s interpretation of the Presidential Records Act is faulty. The law requires that all “official” documents be returned to the National Archives upon a president’s departure. Former President Jimmy Carter signed the act in 1978, building upon legislation by Congress to stop former President Richard Nixon from destroying tapes linked to the Watergate scandal.
“According to the Presidential Records Act, which was a big deal, I was supposed to negotiate with NARA, which is exactly what I was doing until Mar-a-Lago was raided by gun-toting FBI agents.”
This is inaccurate. The Presidential Records Act requires that all official documents be returned to the National Archives upon a president’s departure. The act does not include a negotiating process between the president and the National Archives over official government records.
In addition, the timeline of the back and forth between Trump and the National Archives and federal law enforcement officials shows that the process dragged on in 2021 and 2022.
The National Archives contacted Trump representatives in May 2021 seeking a return of the documents. The archives received 15 boxes in January 2022, determined they contained classified information and contacted the Justice Department. In May 2022, the FBI reviewed the boxes’ contents. Justice Department officials visited Mar-a-Lago in June 2022 and received more documents. Then, in August, the FBI searched Mar-a-Lago and removed 25 boxes of documents.
Attorney General Merrick Garland said the Justice Department had exhausted efforts to retrieve the material in other ways.
The indictment “included staged photographs of boxes at Mar-a-Lago” that contained “all types of personal belongings” including newspapers and press clippings that someone dumped “all over the floor.”
There is no evidence that any of the photographs in the indictment were staged, or that an image of boxes that fell onto a floor were purposely dumped and only contained personal belongings.
According to the indictment,Walt Nauta, Trump’s personal aide at Mar-a-Lago who also faces charges in the indictment, photographed boxes that had tipped over and spilled onto the storage area floor on Dec. 7, 2021.
The spilled papers included newspapers and White House photographs and a secret document related to “five eyes” — a group that includes the intelligence agencies in Australia, Canada, New Zealand, the United Kingdom and the United States.
The indictment said Nauta texted a Trump employee: “I opened the door and found this,” attaching two photographs of the spill, with one of the photos displaying classified information that was redacted in the indictment.
The FBI executed its search warrant of Mar-a-Lago in August 2022, more than a year and a half after Nauta took the photo.
“It’s a political persecution, like something straight out of a fascist or communist nation.”
It’s not uncommon in other countries for current and former governmental leaders to face criminal charges. But these prosecutions are not exclusive to fascist or communist nations, PolitiFact found.
Leaders have been prosecuted by other democratic governments while they were in and out of office, such as Nicolas Sarkozy, France’s president from 2007 to 2012, and Christian Wulff, a former president of Germany.
Trump’s team has previously flagged Venezuela and Cuba as examples when making this claim. Venezuelan President Nicolás Maduro has targeted opponents on fabricated charges and jailed challengers without due process. In Cuba, pro-government supporters have prevented opposition candidates from running in municipal elections. Other dictatorships use similar tactics, often resorting to poisoning or exiling opponents over cooked-up offenses.
The Justice Department appointed a special counsel to oversee the investigation into Trump’s handling of classified material. The special counsel’s indictment cites evidence gathered from witness testimony, phone records, photographs and voice recordings. Questions surrounding Trump’s handling and retention of classified documents started a few months after he left office in early 2021.
“Biden sent 1,850 boxes to the University of Delaware making the search very, very difficult for anybody, and he refuses to give them up, and he refuses to let people even look at them.”
This is misleading. The FBI has searched these records.
Trump was referring to a donation of 1,850 boxes of Biden’s senatorial papers to the University of Delaware, which have been housed on the campus since June 2012. The documents, dating from from 1973 to 2009, include committee reports, drafts of legislation and other files. In 2020, Biden said the collection also contained speeches and policy positions.
The university’s website says the records would be made publicly available no sooner than Dec. 31, 2019, or two years after Biden retires from public life. Until then, access is available only with Biden’s express consent.
However, the FBI has conducted two searches of these papers, which CNN reported were carried out with the consent and cooperation of the president’s legal team.
The searches of the university collection followed FBI searches of Biden’s homes in Wilmington and Rehoboth Beach, Delaware, and the Penn Biden Center’s Washington, D.C., office. So far, there is no evidence that Biden has failed to cooperate with these searches.
“Joe Biden as vice president had no authority to declassify.”
This is False. Since 1940, most presidents have issued executive orders setting rules on classification and declassification powers, according to a 2010 Congressional Research Service report. In 2009, President Barack Obama issued an executive order on handling classified national security information, which remains in effect.
A section of that order gives the president and the vice president original classification authority, which means authority to initiate classifying information. The order says information shall be declassified or downgraded by, among others, “the official who authorized the original classification, if that official is still serving in the same position and has original classification authority.”
This means that because Biden had original classification authority as vice president, he also had authority to declassify information that he had classified in the first place.
That said, there’s not much of a track record for vice presidential declassification, according to legal experts. It’s also unknown so far who initiated the classifications of the documents found in Biden’s home and office.
Says a ruling in the Bill Clinton “socks” case gives the president authority to “segregate personal materials from presidential records,” and the National Archives “lacks any right, duty or means to seize control of them.”
Trump correctly quotes from Judge Amy Berman Jackson’s 2012 ruling but it is a faulty comparison to his own case.
When Clinton was president, he was interviewed dozens of times by historian Taylor Branch to create an oral history of his presidency from 1993 to 2001. CBS, GQ and USA Today wrote that Clinton kept the audiotapes in his sock drawer. In 2009, Branch published a book titled, “The Clinton Tapes: Wrestling History with the President.”
Judicial Watch, a conservative group, sued the National Archives and Records Administration in 2010, asking the court to declare the audiotapes presidential records under the Presidential Records Act. The group wanted the court to order the National Archives to assume custody of the tapes and deposit them in the Clinton Presidential Library.
Jackson, a U.S. District Court judge and Obama appointee, dismissed the case in 2012. She said the law distinguished the tapes as “personal records,” distinct from “official” records.
“Under the statutory scheme established by the (Presidential Records Act), the decision to segregate personal materials from Presidential records is made by the President, during the President’s term and in his sole discretion, see 44 U.S.C. § 2203(b), so the Deputy Archivist could not and did not make a classification decision that can be challenged here,” Jackson wrote. She added, “NARA lacks any right, duty, or means to seize control of them.”’
Jackson concluded that Clinton had what amounted to personal records. Legal experts told us Trump had official records.
“The boxes of records taken to Mar-a-Lago appear to overwhelmingly contain records pertaining to the official business of the White House, and therefore should have been transferred immediately into the legal custody of NARA as presidential records,” Jason R. Baron, former litigation director at the National Archives and Records Administration, told PolitiFact.
Jackson’s opinion does not insulate Trump from other statutory provisions, including the Espionage Act.
“Here, the decision about how to enforce one statute really has nothing to do with whether the president violated a different legal requirement to properly handle information that could harm the national defense,” Margaret Kwoka, an Ohio State University law professor and expert on information law and government secrecy, told PolitiFact after Trump’s speech.
“Sandy Berger, he was caught stealing classified documents from the National Archives, very big ones, very important ones, by stuffing them in his pants (and) also in his socks. … What Berger did was highly illegal, but he was given nothing, no jail time. Nothing, nothing happened.”
This is an exaggeration.
In 2005, Sandy Berger, who had previously served as national security adviser to then-President Bill Clinton, was convicted of violating 18 USC 1924, which addresses the mishandling of classified information. Berger had visited an Archives facility and stuffed documents into his pants, Reuters reported. He later destroyed copies of some of the classified material (though the Justice Department said no originals were lost) and initially denied ever taking them.
Ultimately, Berger pleaded guilty to a misdemeanor. At sentencing, a federal judge levied a $50,000 fine, along with 100 hours of community service and probation. Berger also lost his security clearance.
This fact check was originally published by PolitiFact, which is part of the Poynter Institute. See the sources for this fact check here.
