by Thomas DiLorenzo, The New American, June 26, 2023
In an essay titled “A Strategy for the Right,” the late economist and libertarian scholar Professor Murry N. Rothbard called John C. Calhoun’s “Disposition on Government” one of the most brilliant essays on political philosophy ever written.” Published in 1850, the year of his death, Calhoun’s Disposition warned – and explained – how the American political system could devolve into tyranny, and how to stop that from happening. Americans are not living under the living under the tyranny that Calhoun feared, proving once again the prescience and brilliance of his Disquisition.
Calhoun’s 173-year-old treatise is not just a diagnosis of how we got here, but a roadmap for escaping from this tyranny and being rid of the “woke” totalitarian Marxists among us who are so hell-bent on destroying America.
WHO WAS JOHN C. CALHOUN?
John C. Calhoun was born into a family of Scots-Irish immigrants in the South Carolina upcountry in 1782. He had two uncles who were killed by British soldiers during the Revolution, and his father, Patrick, was a frontier scout. His early education included intimate knowledge of the American Revolution from his family history as well as his studies. He was mostly home-schooled, which prepared him to enter Yale University, where he was the 1804 class valedictorian. His mentor was Yale University president Timothy Dwight, a renowned expert on Lockean (John Locke) political philosophy.
Calhoun was a Jeffersonian philosophically. Professor Clyde Wilson (retired professor from the University of South Carolina and current professor with the Calhoun Institute), the editor of The Collected works of John C. Calhoun, has written that Calhoun viewed all American issues through the lens of the great philosophical divide between Thomas Jefferson, the decentralist/states’ rights/strict constitutional construction advocate, and his political nemesis Alexander Hamilton, who championed centralized, monopolistic, and “energetic” government, including a “permanent president” elected for life. Hamilton denounced the Constitution after its ratification, calling it a “frail and worthless fabric” because of its limitations on state power. It was Hamilton who invented the “implied powers” (aka, not listed in the Constitution) theory of constitutional interpretation; the perversion of the Contract and Commerce Clauses of the Constitution; and other subterfuges designed to turn the document into a de facto rubber stamp on anything the government wanted (or needed) to do – as long as it was “properly” interpreted by people such as himself. That is why Jefferson and his political heirs, such as Calhoun, considered the brilliant Machiavellian Hamilton to be a dangerous threat to American freedom.
Calhoun was the last of the Founding fathers, philosophically speaking, and considered his Disquisition on Government to be a statement of his “understanding of society and government” and his “bequest to posterity,” writes Clyde Wilson.
Calhoun was a member of “the great triumvirate” in American politics of the early 19th century, along with Daniel Webster and Henry Clay. In that capacity he served as a member of Congress from South Carolina, Secretary of War under President James Monroe, U.S. Senator from South Carolina, Secretary of State under President John Tyler and James Polk, and Vice President of the United States during the administration of John Quincy Adams and Andrew Jackson. It is these life experiences, along with this deep knowledge of the literature of liberty of the time, especially the Lockean tradition that fueled the Revolution, that he relied on in writing the Disquisition.
CALHOUN ON GOVERNMENT AND SOCIETY Calhoun was a brilliant expositor of the natural-rights philosophy that rights to life, liberty, and property are God-given; that the primary purpose of government is to secure these from domestic and foreign enemies of freedom; and the realization that there is always a danger that governments can be perverted in a way that they destroy rather than protect these God-given rights. In this, his writings are very much in sync with a French contemporary of his, Frederic Bestiat, who articulated his views of natural rights philosophy in his famous book “The Law,” published in 1850, the same year that both of these great men died.
To Calhoun, “society” is ordained by God for our benefit and government is created by men and its only legitimate purpose is to secure our natural rights to life, liberty, and property. This is the purpose of constitutions, he explained. However, the powers invested in governments to prevent injustice and oppression, he wrote in the Disquisition, “will, if left unguarded, be by them converted into instruments to oppress the rest of the community.” Government, after all, “has itself a strong tendency to disorder and abuse of its powers.” The purpose of government today is for those who run it to plunder and oppress those who do not. This is reminiscent of Jefferson’s dictum that “a government big enough to give you everything you want is strong enough to take everything you have.”
By “society,” Calhoun meant the myriad of local communities established by Americans without direction by any government. As Clyde Wilson writes in his “Calhoun: A Statesman for the 21st Century,” the original colonists were not wards or employees of government but “people who conquered a wilderness with their own labor and capital and at the risk of their own life and limb.” Thus, the American Revolution was not a revolution in society, writes Wilson, but “the action of the existing societies of the 13 colonies to preserve themselves against the interference of a distant government…… the preservation of living societies from the schemes of rulers.”
This is the true meaning of “consent of the governed.” “Consent” was given to ratify the Constitution by the separate political communities of the sovereign states and they reserved the right to withdraw that consent (secede) should the government that they created as their agent interfere with their “happiness” as the ratification documents of New York, Virginia, and Rhode Island specifically declared. The Constitution was not ratified by a majority vote of the general population, but by separate political communities organized at the state level by the “free and independent states,” as they are called in the Declaration of Independence, at state political conventions. This was required by Article VII of the Constitution itself.
To the Jeffersonians, “consent” did not mean a mere majority of any popular vote, especially since elections and vote-counting could always be rigged — as they fully understood, being keen students of political history. A “leading error,” Calhoun wrote, is to “confound the numerical majority with the people” and their consent. This will eventually destroy constitutional government, said Calhoun, for it implies that all that is needed for perfect government is “the right of suffrage — and the allotment to each division of the community a representation in the government, in proportion to numbers.” In reality, majority rule is nothing more than one part of society coercing and plundering another part (the minority), the very “violence of faction” that James Madison warned of in The Federalist, No. 10, writing that, historically, it had destroyed popular governments everywhere by creating a pervasive sense of injustice. The whole purpose of the Constitution, said Madison, was to limit this “violence of faction” by electoral majorities.
Calhoun was battling the top Hamiltonian “nationalist” statists of his day, such as Supreme Court Justice Joseph Story and U.S. Senator Daniel Webster. In his famous 1833 Commentaries on the Constitution of the United States, Story wrote that “the majority must have a right to accomplish that object by the means, which they deem adequate for the end…. The will of the majority of the people is absolute and sovereign, limited only by its means and power to make its will effectual.” (Emphasis added.) This “power,” of course, is the coercive power of a heavily armed government. “Trust in the efficacy of frequent elections,” said Massachusetts Senator Daniel Webster in his 1830 Senate debate over protectionist tariffs and nullification with Senator Robert Hayne of South Carolina. History has proven that to be one of the most farcical statements ever made by an American politician.
What all of this means is that the Constitution was meant to be society’s vehicle for controlling the state, not the state’s vehicle for controlling society — as it is today, where the limits of everyone’s freedoms are periodically decreed by five black-robed government lawyers with lifetime tenure.
The bigger error, Calhoun wrote, is “the prevalent opinion that a written constitution … is sufficient, of itself, without the aid of any organism, except such as is necessary to separate its separate departments, and render them independent of each other, to counteract the tendency of the numerical majority to oppression and the abuse of power.” The separation of powers would never be sufficient to enforce the Constitution, in other words, contrary to Madison’s theory on the subject. History has proven Calhoun to be right and Madison wrong on that point.
The party in power – whichever party – will be opposed to the constitutional restrictions intended to limit it. “As the major and dominant party, they will have no need of these restrictions…. The ballot-box … would be ample protection to them.” (Especially if the party in power administered the elections!) “They would … regard these limitations as unnecessary and improper restraints; and endeavor to elude them, with the view of increasing their power and influence.”
The “minor, or weaker party,” on the other hand, will make its strict construction arguments for actually enforcing the Constitution, but “the party in favor of the restrictions” will inevitably “be overpowered,” wrote Calhoun. It is folly, he said, to believe that “the party in power” and “in possession of the ballot box” and “the physical force of the country” could “be successfully resisted by an appeal to reason, truth, justice, or the obligations imposed by the constitution.”
The “end of the contest” would then be “the subversion of the Constitution.”
This will occur, said Calhoun, because of a kind of class struggle in society, but not the Marxist class struggle between the capitalist and working “classes.” Instead, in a democracy, “One portion of the community must pay in taxes more than it receives back in disbursements while another receives in disbursements more than it pays in taxes.” Society will be divided into two classes: net taxpayers versus net tax consumers. “The necessary result … is to divide the community into two great classes; one consisting of those who … pay the taxes, and, of course, bear exclusively the burthen of supporting the government; and the other, of those who are the recipients of their proceeds.”
The right of suffrage causes this condition and can in no way counteract it. It does not perfect government but turns it into an authoritarian tyranny of “absolute government,” as Calhoun called it.
Echoing Calhoun, economist Hans-Hermann Hoppe described democracy as “a soft variant of communism” in his book Democracy: The God That Failed. After all, if one single “social plan” is imposed by force on all of society by government (i.e., communism), it makes no difference whether that is done by a dictator or by a legislature. Socialism is socialism.
In order to generate genuine consent, and not the phony “consent” of electioneering, each portion of the society must be given “a negative on the others,” said Calhoun. This “negative power” may be called “veto, interposition, nullification, check or balance of power,” and this is what makes a constitution a useful tool for societal control of its own government. It is what makes the people the masters rather than the servants of the state. He called this idea the “concurrent majority.”
Calhoun was always a unionist and viewed nullification of laws thought to be unconstitutional as an alternative to secession. In this he was following in the footsteps of Jefferson and Madison, authors of the Kentucky and Virginia Resolutions of 1798, respectively, which nullified the abolition of free speech invoked by the Adams administration’s Sedition Act by declaring that it would not be enforced within their borders. (The Adams administration used its “Sedition Act” to imprison journalists sympathetic to Jefferson’s Democratic-Republican Party, and even imprisoned an opposition member of Congress, Representative Matthew Lyon of Vermont, a member of Jefferson’s party, for criticizing Adams in the House of Representatives. The Sedition Act declared “malicious” talk about the government to be illegal, with the government itself determining what is “malicious.”)
Jefferson’s Kentucky Resolution, for example, stated: “Resolved, that the several states composing the United States of America, are not united on the principles of unlimited submission to their General Government,” and “Whensoever the General Government assumes undelegated powers, its acts are unauthoritative, void, and of no force.” Madison’s Virginia Resolution said virtually the same thing. New England, Ohio, Wisconsin, Delaware, and South Carolina would invoke Jeffersonian nullification on a variety of issues, from banking to immigration policy to trade policy, that they believed were unconstitutional during the antebellum era.
Calhoun also believed nullification would encourage the enforcement of constitutional limits on government by letting the powers that be know that unconstitutional legislation designed by one faction of the country only to plunder another faction could be ignored or nullified, rendering their plundering efforts useless. Compromise rather than plunder would then be encouraged, he argued. Moreover, with protections of a concurrent majority in place, the franchise could be expanded, wrote Calhoun.
Under simple majority rule, on the other hand, an expansion of the franchise would guarantee an expansion of political plunder by more and more enfranchised factions. The protections of a concurrent majority would encourage “patriotism, nationality, harmony, and … promoting the common good” instead of “faction, strife, and struggle for party ascendancy,” he wrote. As an added benefit, Calhoun argued, the type of people attracted to government would be less sleazy and corrupt, and more patriotic and public-spirited.
CALHOUN’S ECONOMIC POLICIES
In the 1820s, the South was largely an agricultural society that sold as much as three-fourths of its agricultural products overseas. Most manufacturing, such as it was, was in the Northern states, and they had been pursuing the Hamiltonian policy of high tariffs and a protectionist trade policy to shield themselves from competition and raise prices. They also championed what we today call “corporate welfare” or “crony capitalism.” Their first political success was a tariff increase in 1824 that garnered only three of 107 “yes” votes in the House of Representatives from Southern states and two of 25 “yes” votes in the U.S. Senate.
The South was in agreement with modest “revenue tariffs” of 10-15 percent that would fund the constitutional functions of government, but believed that they were being plundered by high, protectionist tariffs. Protectionist tariffs forced them to pay significantly more for farm tools, clothing, shoes, and much more, with little benefit from the tariff revenue. Almost all of the benefit went to Northern manufacturers who, being isolated from international competition, raised their prices and profit levels. To make it worse for the South, protectionist tariffs impoverished their European trading partners, whose profits from American markets dried up. This made them less able to buy American exports — primarily cotton, rice, and tobacco grown in the South. This is why Bastiat labeled protectionist tariffs “legal plunder.”
Emboldened by their success with the 1824 tariff and their newfound dominance in Congress, the Northern states then passed the hated “Tariff of Abominations” in 1828 that raised the average tariff rate to nearly 50 percent. Some items, such as imported woolen blankets, had a 200-percent tariff attached. The price of woolen blankets and dozens of other items skyrocketed.
Led by Calhoun, South Carolina invoked the principle of Jeffersonian Nullification. An ordinance of nullification was enacted at a political convention that declared the tariff act to be “unauthorized by the Constitution of the United States and violated the true meaning and intent thereof.” It was therefore “null, void, no law.” All tariff enforcement in Charleston Harbor was suspended.
President Andrew Jackson threatened to enforce the tariff, but in the end a compromise was reached in 1833 — and secession avoided — with a lowering of tariffs over the next 10 years. Nullification had worked just the way Calhoun explained it should work as an alternative to secession that could keep the union together by encouraging regional compromise. By 1860, the average tariff rate was the lowest ever during the 19th century — 15 percent. (But it was raised to the 60-percent range by Lincoln and the Republican party, where it remained for the next half century.)
Calhoun made many speeches on the subject of free trade, with the clear intent of educating the public. In an 1842 speech, he hit the nail on the head regarding the true purpose of protectionism by asking, “Protection against what? Against violence, oppression, or fraud?… No…. It is against low prices.” He also pointed out that the tendency of protectionist tariffs is “to make the poor poorer and the rich richer.”
Do the protectionists “ask that a tax should be laid on the rest of the community, and the proceeds divided among them?” he asked. “No: that would be rather too open, oppressive, and indefensible.” Squelching competition with protectionist tariffs achieves the same result, but in a much more obfuscating way that makes it easy to pull the wool over the public’s eyes. It should rightly be called “monopoly” or “plunder,” he suggested.
In that same 1842 speech, Calhoun announced his economic ideas to be “Free Trade: Low Duties: No Debt: Separation from Banks: Economy: Retrenchment: and Strict Adherence to the Constitution.” Competition, no deficit spending in peacetime; no collusion between bankers and Big Government; cutting government spending; and spending only on the items listed as the legitimate constitutional functions of the federal government, in other words.
Free trade was literally “the cause of civilization and peace,” he said. By “cause of civilization,” he meant the benefits of the international division of labor, not today’s corrupt, socialistic “trade deals” with their thousands of pages of regulations written by corporate lobbyists and their political puppets. That is not free trade, but the opposite: socialist central planning. The latter point about peace was perhaps best expressed by Frédéric Bastiat when he said, “If goods can’t cross borders, armies will.” People who prosper together through trade and commerce, who become business associates and even friends, are less inclined to wage war on each other.
The Deep State of his day hated and despised Calhoun for these views, and to this day he is demonized and marginalized because of such ideas (as is Jefferson for that matter, especially by the “court historians” of the academic history profession).
CALHOUN’S FOREIGN POLICIES
A onetime secretary of war, Calhoun believed that the purpose of national defense is to defend America and Americans from foreign adversaries, not forcing our version of “salvation” on other countries. He was an anti-imperialist, another reason why the Deep State of his time despised him. Diametrically opposed to Calhoun was John Adams, who wrote in his diary that he considered America to be “the opening of a grand scheme and design in Providence for the illumination of the ignorant, and the emancipation of the slavish part of mankind all over the earth.” (Emphasis added.) Adams can be thought of as the original “neocon.” Fast-forward several hundred years, and one hears his voice in President George W. Bush promising that his “war on terror” will eliminate evil from the world.
In a speech regarding the Mexican-American War (1846-1848), Calhoun disputed the idea “lately urged in a very respectable quarter” that “it is the mission of our country to spread civil and religious liberty all over the globe … even by force, if necessary. It is a sad delusion.” At the end of the Mexican-American War, there were those in Congress who wanted to essentially conquer and occupy Mexico. To this Calhoun said, “I am at a loss to see how a free and independent republic can be established in Mexico under the protection and authority of its conquerors. I can readily understand how an aristocracy or a despotic government might be, but how a free republican government can be so established under such circumstances, is to me incomprehensible.” He could very well have been discussing the U.S. government’s 21st-century military adventures in Iraq and Afghanistan under the guise of “nation-building.”
Calhoun believed that the Mexican war was a Caesar-crossing-the-Rubicon moment. It was a “deed … from which the country would not be able to recover for a long time if ever.” He wrote to his daughter Anna, “Our people have undergone a great change. Their inclination is for conquest and empire.” That, he believed, was a mortal threat to American prosperity and freedom.
CALHOUN’S ROADMAP FOR A NEW AMERICA?
America is already experiencing a soft secession movement, with conservative citizens leading the charge in moving away from the socialist disasters of New York, California, Illinois, and almost all of the big cities run by the hard-left Democratic Party political machines. They are moving to more conservative, or even libertarian, parts of the country such as Florida, Texas, South Carolina, Montana, Idaho, and elsewhere. (Of course, each of these states also has its islands of “woke” socialism, usually around the state capitals, university towns, and inner cities with large welfare populations.)
Peaceful American disunion is inevitable in the opinion of your author. It may not happen tomorrow or next week, but it will happen. We are at the end of the road of a country of some 330 million people ruled, essentially, by a few hundred (or perhaps a few dozen) political oligarchs who control one or the other of the two major political parties. The day will come when there will be a new America and new Americans. The old America will remain in the socialist hellholes of New York City, Chicago, Baltimore, San Francisco, etc., while the segment of the population that still values freedom and prosperity over tax slavery and imperialism will go elsewhere. They will take to heart the advice of the author of the Declaration of Independence that, when government becomes destructive of the consent of the governed, it is the people’s right to alter or abolish it and institute a new government more conducive to their safety and happiness.
The ideas of John C. Calhoun, the inheritor of the Jeffersonian political tradition in America, provide a roadmap for these freedom-seeking Americans of the future. As for the role of government in the new American societies of the future, Calhoun would counsel peace and “a wise and masterful inactivity” that would give all Americans the greatest chance to enjoy prosperity and to live as free human beings.
Thomas Jefferson himself would most assuredly approve of a coming American disunion. In an August 12, 1803 letter to John C. Breckenridge regarding the New England secession movement (which culminated in the 1814 Hartford Secession Convention), Jefferson wrote that, should there be a “separation” into two confederacies, “God bless them both, & keep them in the union if it be for their good, but separate them, if it be better.”
*** Thomas DiLorenzo is the famed author of such books as: “The Real Abraham Lincoln,” “Lincoln Unmasked,” and “How Capitalism Saved America: The Untold History Of Our Country, From The Pilgrims To The Present.”
by Diane Rufino, June 15, 2023 (including parts of the Trump Indictment)
On June 8, an indictment was handed down against former president Donald Trump citing 37 counts related to classified documents that he removed from the White House and brought with him to Mar-A-Lago when he left office. A federal grand jury in the U.S. District Court for the Southern District of Florida filed a 44-page indictment on charges related to the hundreds of classified documents seized from Trump’s Mar-a-Lago estate. The indictment was made public on Friday, June 9. The indictment includes 38 charges against Trump:
— 31 counts of willful retention of national defense information under the Espionage Act;
— One count of conspiracy to obstruct justice;
— One count of withholding a document or record;
— One count of corruptly concealing a document in a federal investigation;
— One count of concealing a document in a federal investigation;
— One count of scheming to conceal; and
— One count of making false statements and representations for allegedly causing his lawyer to certify that all classified documents had been turned over to federal authorities on June 3.
The US Department of Justice, through special Counsel Jack Smith (appointed by Merrick Garland) has been investigating Trump’s alleged illegal removal of hundreds of classified government documents, including some with sensitive national security information, from the White House, which he then kept at his resort golf club and residence, Mar-A-Lago after his presidency ended. Jack Smith is a Trump-hater; a zealot.
In this current case, Smith went so low as to get a judicial order to pierce Trump’s attorney-client privilege, a time-honored principle.
Special Counsel Smith convened a federal grand jury to investigate the matter and to determine whether charges should be brought. The investigation focused on which documents were kept, what security classifications are associated with those documents, how they were stored, who could access them, and why Trump’s lawyers attested that all documents had been returned when they hadn’t. It can be against the law, the government alleges, to improperly retain, store, or allow unauthorized access to top secret or classified government documents.
The resulting indictment cites the Espionage Act (codified at 18 U.S.C. § 973) as the law Trump has violated. The case is the first time a former president of the United States has been formally accused of violating federal law.
Trump appeared at the Federal District Court in Miami on Tuesday, June 13 and pleaded not guilty. He was then released on bond, and as a condition of that bond, he is prohibited from discussing the case with his alleged co-conspirator, his “body man” Walt Nauta.
The zealous and ridiculous indictment by the Biden administration’s weaponizing of the Department of Justice will go down as among the most horrific abuses of power in the history of our country. Biden has used his Justice Department (and his man, Merrick Garland) to indict his top political opponent. He has trampled the rule of law to benefit himself and his party. The American people are exhausted at the continuous and unrelenting schemes and attacks on Trump and are exhausted at the Democrats’ use of prosecutorial overreach. Thankfully, the indictment and the charges against Trump won’t prevent him from running for president in 2024.
In his tweets and public statements, he characterizes the charges as “a travesty of justice,” “election interference,” and a “witch hunt.” Furthermore, he continues to point out that Biden also possessed classified government documents from his time as a US senator. “He didn’t have any authority and he had no right to possess those documents, and yet nothing happened to ‘Crooked Joe.’” House Speaker Kevin McCarthy wrote on Twitter: “It is unconscionable for a US President to indict the leading candidate opposing him. Joe Biden himself kept classified documents for decades.”
BACKGROUND: Over the course of his presidency, Donald Trump gathered newspapers, press clipping, letters, notes, cards, photographs, official documents, and other materials in cardboard boxes that he kept in the White House. Among the materials he stored in these boxes were hundreds of classified documents.
The classified documents included information regarding defense and weapons capabilities of both the US and foreign countries, including US nuclear programs, potential vulnerabilities of the US and its allies in cases of military attack, and plans for possible retaliation in response to a foreign attack. The unauthorized disclosure of these classified documents could put at risk the national security of the US, foreign relations, the safety of the US military, as well as the safety of civilians, and the continued viability of sensitive intelligence-collection methods.
At 12:00 pm on January 20, 2021, Donald Trump ceased to be president. As he departed the White House, he caused scores of boxes, many of which contained classified documents, to be transported to The Mar-A-Lago Club in Palm Beach, Florida, where he maintained his residence. Trump was not authorized to possessor retain those classified documents. Allegedly, the government claims that the Espionage Act prohibits such retention.
Mar-A-Lago was an active social club, which, between January 2021 and August 2022, hosted events for tens of thousands of members and guests. After Trump’s presidency, Mar-A-Lago was not an authorized location for the storage, possession, review, display, or discussion of classified documents. Again, the government claims that the Espionage Act prohibits such unverified storage. Nevertheless, he stored the boxes, in various locations at Mar-A-Lago. Including in the White and Gold ballrooms, a bathroom and shower, an office space, his bedroom, and storage rooms.
In July 2022, at Trump’s National Golf in Bedminster, NJ, during an audio-recorded meeting with a writer, publisher, and two members of his staff, none of whom possessed security clearance, Trump showed and described a “plan of attack” that he said was prepared for him by the Department of Defense and a senior military official. Trump told the individuals that the plan was “highly confidential” and “secret.” He also said, “as president, I could have declassified it,” and “Now I can’t, you know, but this is still a secret.”
In August or September 2021, at Trump’s Bedminster Golf Club, Trump showed a representative of his political action committee who did not possess security clearance.
On March 2022, the Federal Bureau of Investigation opened a criminal investigation into the unlawful retention of classified documents at Mar-A-Lago. A federal grand jury investigation began the following month. The grand jury issued a subpoena requiring Trump to turn over all documents with classified markings. Trump endeavored to obstruct the FBI and the grand jury investigation and conceal his continued retention of classified national documents, by doing the following, among other things:
Suggesting that his attorney falsely represent to the FBI and grand jury that he did not have the documents called for by the grand jury subpoena.
Directing defendant Waltine Nauta to move boxes of documents to conceal them from Trump’s attorney, the FBI, and the grand jury.
Suggesting that his attorney hide or destroy documents called for by the grand jury subpoena.
Providing to the FBI and grand jury jut some of the documents called for by the grand jury subpoena, while claiming that he was cooperating fully.
Causing a certification to be submitted to the FBI and grand jury falsely representing that all documents called for by the grand jury subpoena had been produced, while knowing that, in fact, not all such documents had been produced.
As a result of Trump’s retention of classified documents after his presidency and refusal to return them, hundreds of classified documents were not recovered by the US government until 2022, as follows:
On January 17, nearly one year after Trump left office and after months of demands by the National Archives and Records Administration for him to provide all missing presidential records, Trump provided only 15 boxes, which contained 197 documents with classification markings on them.
On June 3, in response to a grand jury subpoena demanding the production of all classified documents, Trump’s attorney provided to the FBI 38 more classified documents.
On August 8, pursuant to a court-authorized search warrant, the FBI recovered from Trump’s office and a storage room (at Mar-A-Lago) 102 more classified national documents.
“CLASSIFIED” documents – contain information that reasonably could be expected to cause grave danger to the national security of the United States (should they fall into the wrong hands).
After his presidency, Trump retained classified national documents originated by, or implicating the equities (interests) of, multiple USIC members and other executive branch departments and agencies, including the following:
The Central Intelligence Agency (CIA) – The CIA was responsible for providing intelligence on foreign countries and global issues to the president and other policymakers to help them make national security decisions.
The Department of Defense (DOD) – The Depart. of Defense was responsible for providing the military forces needed to deter war and ensure national security. Some of the executive branch agencies comprising the USIC were within the DOD.
The National Security Agency – The National Security Agency was a combat support agency within the DOD and a member of the USIC responsible for foreign signals, intelligence, and cybersecurity. This included collecting, processing, and disseminating to US policymakers and military leaders foreign intelligence derived from communications and information systems, protecting national security systems, and enabling computer network operations.
The National Geospatial Intelligence Agency – The National Geospatial Intelligence Agency was a combat support agency within the DOD responsible for the exploitation and analysis of imagery, imagery intelligence, and geospatial information in support of the national security objectives of the US and the geospatial intelligence requirements of DOD, the Department of State, and other federal agencies.
The National Reconnaissance Office – The National Reconnaissance Office was an agency within DOD responsible for the developing, acquiring, launching, and operating space-based surveillance and reconnaissance systems that collected and delivered intelligence to enhance national security.
The Department of Energy – The Department of Energy was responsible fir maintaining a safe, secure, and effective nuclear deterrent to protect national security, including ensuring the effectiveness of the US nuclear weapons stockpile without nuclear explosive testing.
The Department of State and Bureau of Intelligence and Research – The Department of State was responsible for protecting and promoting US security, prosperity, and democratic values. Within the Department of State, the Bureau of Intelligence and Research was a member of the USIC and responsible for providing intelligence to inform diplomacy and support US diplomats.
On July 29, 2018, President Trump issued the following statement about classified information: “As the head of the Executive Branch and Commander-in-Chief, I have a unique and Constitutional responsibility to protect the Nation’s classified information, including by controlling access to it…. More broadly, the issue of [a former executive branch official’s] security clearance raises larger questions about the practice of former officials maintaining access to our Nation’s most sensitive secrets long after their time in government has ended. Such access is particularly inappropriate when former officials have transitioned into highly partisan positions and seek to use real or perceived access to sensitive information to validate their political attacks. Any access granted to our Nation’s secrets should be in furtherance of national, not personal, interests.”
Nevertheless, in May 2021, Trump directed that a storage room on the ground floor of Mar-A-Lago (“the storage room”) be cleaned out so that it could be used to store his boxes. The hallway leading to the Storage Room could be reached from multiple outside entrances, including one accessible from the Mar-A-Lago pool patio through a doorway that was often kept open. The room was near the liquor supply closet, linen room, lock shop, and various other rooms.
LEGAL ANALYSIS: The alleged Espionage Act (18 U.S.C. § 973) violations impose a high burden of proof and raise the question (“a question/issue of first impression,” as the legal system calls it) of whether the statute should have been applied to begin with and, if not, whether the underlying investigation should serve as a basis for obstruction charges. “The key legal issue here is the interplay between the Presidential Records Act and the Espionage Act,” explains Will Scharf, a former federal prosecutor.
The Presidential Records Act of 1978 stipulates that after a president leaves office, the National Archives and Records Administration (NARA) takes custody of all his official records. The law allows former presidents to keep personal documents such as “diaries, journals, or other personal notes” not used for government business.
If a former president or Vice President finds presidential records among personal materials, he is expected to contact NARA in a timely manner to secure the transfer of those presidential records to NARA (as the National Archives and Records Administration website states). However, the Presidential Records Act isn’t a criminal statute. If a former president refuses to turn over some documents or claims official documents as personal, the worst he could possibly face is a civil lawsuit.
The fact is that there is little case law on the matter. In 2012, Judicial Watch tried to force former President Bill Clinton to turn over dozens of interview tapes he kept from the presidency. Clinton claimed the tapes were personal and the court sided with him (8-0, with 1 justice, Clarence Thomas, recusing himself). One Judge, an appointee of Barack Obama, went so far as to argue that a court has no authority to second-guess a president’s assertion of what is and isn’t personal.
However, the Department of Justice is now attempting to argue that former presidents can be charged under the Espionage Act of 1917 for possession of classified documents that they kept from their presidencies. Before 1978, former presidents owned all documents from their presidencies, including any national defense information. There has never been any suggestion that their holding on to such documents violated the Espionage Act.
TRUMP’S PRODUCTION of 15 CARDBOARD BOXES to the NATIONAL ARCHIVES and RECORDS ADMINISTRATION
Beginning in May 2021, the National Archives and Records Administration (“NARA”), which was responsible for archiving presidential records, repeatedly demanded that Trump turn over presidential records that he had kept after his presidency. On multiple occasions, beginning in June, NARA warned him (through his representatives) that if he did not comply, it would refer the matter of the missing records to the Department of Justice.
Between November 2021 and January 2022, Walt Nauta and Trump Employee #2, at Trump’s direction, brought boxes from the Storage Room to Trump’s residence for him to review.
On November 12, 2021, Trump Employee #2 provided Trump a photograph so that he could see how many of his boxes were stored in the Storage Room.
On January 17, 2022, Trump Employee #2 and Nauta gathered 15 boxes from Trump’s residence, loaded the boxes in Nauta’s car, and took them to a commercial truck for delivery to NARA.
When interviewed by the FBI in May 2022 regarding the location and movement of boxes before the production to NARA, Nauta made false and misleading statements as set forth below:
Falsely stating that he was not aware of Trump’s boxes being brought to Trump’s resident for his review before Trump provided the 15 boxes to NARA in January 2022;
Falsely stating that he did not know how the boxes that he and Trump Employee #2 brought from Trump’s residence to the commercial truck for delivery to NARA on January 17, 2022, had gotten to the residence; and
When asked whether he knew where Trump’s boxes had been stored before they were in Trump’s residence and whether they had been in a secure or locked location, Nauta falsely responded: “I wish, I wish I could tell you. I don’t know. I don’t – I honestly just don’t know.”
When the 15 boxes that Trump had provided reached NARA in January 2022, NARA reviewed the contents and determined that 14 of the boxes contained classified documents. Specifically, as the FBI later determined, the boxes contained 197 classified national documents, of which 98 were marked “SECRET,” 30 were marked “TOP SECRET,” and the remainder were marked “CONFIDENTIAL.” Some of those documents also contained SCI and SAP markings.
On February 9, 2022, NARA referred the discovery of classified documents in Trump’s boxes to the Department of Justice for investigation. On March 30, the FBI opened a criminal investigation and on April 26, a federal grand jury opened an investigation.
TRUMP’S CONCEALMENT OF BOXES
On May 11, 2022, the grand jury issued a subpoena (the “May 11 Subpeona”) to The Office of Donald J. Trump requiring the production of all classified documents (“in the possession, custody or control of Trump or The Office of Donald J. Trump”).
On May 22, 2022, Nauta met with Trump Attorney #1 and Trump Attorney #2 at Mar-A-Lago to discuss the response to the May 11 Subpeona. Trump Attorney #1 and Trump Attorney #2 told Trump that they needed to search for classified documents that would be responsive to the subpoena and provide a certification that there had been compliance with the subpoena. Trump, in sum and substance, made the following statements, among others, as memorialized by Trump Attorney #1:
“I don’t want anybody looking, I don’t want anybody looking through my boxes. I really don’t…. I don’t want you looking through my boxes.”
Well, what if we…. what happens if we just don’t respond at all or don’t play ball with them?”
Wouldn’t it be better if we just told them we don’t have anything here?”
“Isn’t it better if there are no documents?”
On May 23, Trump told the following story, as memorialized by Trump Attorney #1: “He was great; he did a great job. You know what? He said that it – that it was him… that he was the one who deleted all of her emails, the 30,000 emails, because they basically dealt with her scheduling and he going to the gym and her having beauty appointments. And he was great. And he, so she didn’t get in any trouble because he said that he was the one who deleted them.” [Trump related the story more than once that day].
On May 23, Trump also confirmed his understanding with his Attorney #1 that the latter would return to Mar-A-Lago on June 2 to search for any classified documents to produce them in response to the May 1 Subpeona. Attorney #1 made it clear to Trump that he would conduct the search for responsive documents by looking through the boxes that had been transported from the White House to Mar-A-Lago. Trump insisted that he wanted to be at Mar-A-Lago when Attorney #1 returned to review the boxes on June 2, and that he would change his summer travel plans to do so. Trump told Attorney #2 that he did not need to be present for such review.
After meeting with Attorney #1 and Attorney #2 on May 23, Trump delayed his departure from Mar-A-Lago to The Bedminster Club for the summer so that he would be present at Mar-A-Lago on June 2, when Attorney #1 returned to review the boxes.
Between Trump’s May 23 meeting with Attorney #1 and Attorney #2 to discuss the May 11 Subpoena and June 2, when Attorney #1 returned to Mar-A-Lago to review the boxes in the Storage Room, Nauta removed, at Trump’s direction, a total of approximately 64 boxes and brought them to Trump’s residence, as set forth below:
(a) On May 24, 2022, between 5:30 pm and 5:38 pm, Nauta removed three boxes from the Storage Room.
(b) On May 30, 2022, at 9:08 am, Trump and Nauta spoke by phone for approximately 30 seconds. Between 10:02 am and 11:51 am, Nauta removed a total of approximately 50 boxes from the Storage Room.
(c) On June 1, 2022, beginning at 12:52 pm, Nauta removed approximately 11 boxes from the Storage Room.
(d) On June 2, 2022, the day that Trump Attorney #1 was scheduled to review the boxes in the Storage Room, Trump spoke with Nauta on the phone at 9:29 am for approximately 24 seconds. Later that day, between 12:33 pm and 12:52 pm, Nauta and an employee of Mar-A-Lago moved approximately 30 boxes from Trump’s resident to the Storage Room.
In sum, between May 23 and June 2, 2022, before Trump Attorney #1’s review of the boxes in the Storage Room, Nauta, at Trump’s direction, moved approximately 64 boxes from the Storage Room to Trump’s residence and brought to the Storage Room only approximately 30 boxes. Neither Trump nor Nauta informed Trump Attorney #1 of this information.
THE FALSE CERTIFICATION TO THE FBI and the GRAND JURY
On the afternoon of June 2, 2022, as Trump had been informed, Trump Attorney #1 arrived at Mar-A-Lago to review Trump’s boxes to look for classified documents in response to the May 11 Subpoena. Trump met with Attorney #1 before the latter conducted the review. Nauta escorted Attorney #1 to the Storage Room. Between 3:53 pm and 6:23 pm, Attorney #1 reviewed the contents of the boxes there. Attorney #1 located 38 classified documents inside the boxes, which he removed and placed in a Rebweld folder. He then asked Nauta to bring him clear duct tape to seal the folder.
After Trump Attorney #1 finished sealing the Rebweld folder, Nauta took him to a dining room at Mar-A-Lago to meet with Trump. After Attorney #1 confirmed that he was finished with the search of the Storage Room boxes, Trump asked him: “Did you find anything? Is it bad? Good?”
Trump and Attorney #1 then discussed what to do with the Rebweld folder containing the classified national documents and whether Attorney #1 should bring them to his hotel room and put them in a safe there. During that conversation, Trump made a plucking motion, as memorialized by Attorney #1: “He made a funny motion as though – well okay why don’t you take them with you to your hotel room and if there’s anything really bad in there, you pluck it out. And that was the motion that he made. He didn’t say that.”
That evening, Trump Attorney #1 contacted the Department of Justice and requested that an FBI agent meet him at Mar-A-Lago the next day, June 3, so that he could turn over the documents responsive to the May 11 Subpoena. Also that evening, Attorney #1 contacted another Trump attorney (“Trump Attorney #3”) and asked her if she would come to Mar-A-Lago the next morning to act as a custodian of records and sign a certification regarding the search for classified documents in response to the May 11 Subpoena. Trump Attorney #3, who had no role in the review of the boxes in the Storage Room, agreed.
The next day, on June 3, 2022, at Trump Attorney #1’s request, Attorney #3 signed a certification as the custodian of records for The Office of Donald J. Trump and took it to Mar-A-Lago to provide it to the Department of Justice and the FBI. In the certification, Attorney #3 – who had not reviewed the May 11 Subpoena nor had reviewed the contents of the Rebweld folder – stated, among other things, that “based upon the information that had been provided to her:
“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.”
These statements were false because, among other reasons, Trump had directed Nauta to move boxes before Attorney #1’s review on June 2, so that many boxes were not searched and many documents responsive to the May 11 Subpoena could not be found, and in fact were not found, by Attorney #1.
Shortly after Attorney #3 executed the false certification, on June 3, 2022, Attorney #1 and Attorney #3 met at Mar-A-Lago with personnel from the Department of Justice and the FBI. Attorney #1 and Attorney #3 turned over the Rebweld folder containing classified documents, as well as the false certification signed by Attorney #3 as custodian of records. Trump, who had delayed his departure from Mar-A-Lago, joined both attorneys for some of the meeting. Trump claimed to the Department of Justice and the FBI that he was “an open book.”
Earlier that same day, Nauta and others loaded several of the boxes from the Storage Room, along with other items, on an aircraft that flew Trump and his family north for the summer.
THE COURT-AUTHORIZED SEARCH OF MAR-A-LAGO
In July 2022, the FBI and grand jury obtained and reviewed surveillance video from Mar-A-Lago showing the movement of boxes set forth above. On August 8, 2022, the FBI executed a court-authorized search warrant at Mar-A-Lago. The search warrant authorized the FBI to search for and seize, among other things, all documents with classification markings. During the execution of the warrant, the FBI seized 102 classified documents from Trump’s office and Storage Room, as follows:
COUNTS 1-31: Willful Retention of National Defense Information [18 U.S.C. § 793(e)]
On or about the dates set forth in the table below, in Palm Beach County, in the Southern District of Florida, and elsewhere, the defendant, Donald J. Trump, having unauthorized possession of, access to, and control over documents relating to national defense, did willfully retain the documents and fail to deliver them to the officer and employee of the United States entitled to receive them. [QUESTION: WHICH FEDERAL LAW PROHIBITS A FORMER PRESIDENT FROM TAKING POSSESSION OF CLASSIFIED DOCUMENTS?] That is, Trump, without authorization, retained at Mar-A-Lago, documents relating to the national defense, including the following (= Counts 1 – 31). The list below gives the date of the offense, Classification Marking, and Document Description, in that order:
1 – January 20, 2021 – August 8, 2022. “TOP SECRET”/”NOFORN”/”SPECIAL HANDLING.” Document dated May 3, 2018, concerning White House intelligence briefing related to various foreign countries.
2 – January 20, 2021 – August 8, 2022. “TOP SECRET”/”SI”/”NOFORN”/”SPECIAL HANDLING.” Document dated May 9, 2018, concerning White House intelligence briefing related to various foreign countries.
3 – January 20, 2021 – August 8, 2022. “TOP SECRET”/”SI”/”NOFORN”/”FISA.” Undated document concerning military capabilities of a foreign country and the United States, with handwritten annotation in black marker.
4 – January 20, 2021 – August 8, 2022. “TOP SECRET”/”SPECIAL HANDLING.” Document dated May 6, 2019, concerning White House intelligence briefing related to various foreign countries, including military activities and planning of foreign countries.
5 – January 20, 2021 – August 8, 2022. “TOP SECRET”/(redacted)/(redacted)/”ORCON”/”NOFORN.” Document dated June 2020 concerning nuclear capabilities of a foreign country.
6 – January 20, 2021 – August 8, 2022. “TOP SECRET”/”SPECIAL HANDLING.” Document dated June 4, 2020, concerning White House intelligence briefing related to various foreign countries.
7 – January 20, 2021 – August 8, 2022. “SECRET”/”NOFORN.” Document dated October 21, 2018, concerning communications with a leader of a foreign country.
8 – January 20, 2021 – August 8, 2022. “SECRET”/”REL TO USA”/”FVEY.” Document dated October 4, 2019, concerning military activities of a foreign country.
9 – January 20, 2021 – August 8, 2022. “TOP SECRET”/(redacted)/(redacted)/”ORCON”/”NOFORN”/”FISA.” Undated document concerning military attacks by a foreign country.
10 – January 20, 2021 – August 8, 2022. “TOP SECRET”/”TK”/”NOFORN.” Document dated November 2017 concerning military capabilities of a foreign country.
11 – January 20, 2021 – August 8, 2022. No classification markings. Undated document concerning military contingency planning of the United States.
12 – January 20, 2021 – August 8, 2022. “SECRET”/”REL TO USA”/”FVEY.” Pages of undated document concerning projected regional military capabilities of a foreign country and the United States.
13 – January 20, 2021 – August 8, 2022. “TOP SECRET”/”SI”/”TK”/”NOFORN.” Undated document concerning military capabilities of a foreign country and the United States.
14 – January 20, 2021 – August 8, 2022. “SECRET”/”ORCON”/”NOFORN.” Document dated January 2020 concerning military options of a foreign country and potential effects on United States interests.
15 – January 20, 2021 – August 8, 2022. “SECRET”/”ORCON”/”NOFORN.” Document dated February 2020 concerning policies in a foreign country.
16 – January 20, 2021 – August 8, 2022. “SECRET”/”ORCON”/”NOFORN.” Document dated December 2019 concerning foreign country support of terrorist acts against United States interests.
17 – January 20, 2021 – August 8, 2022. “TOP SECRET”/(redacted)/”TK”/”ORCON”/”IMCON”/”NOFORN.” Document dated January 2020 concerning military capabilities of a foreign country.
18 – January 20, 2021 – August 8, 2022. “SECRET”/”NOFORN.” Document dated March 2020 concerning military operations against United States forces and others.
19 – January 20, 2021 – August 8, 2022. “SECRET”/”FORMERLY RESTRICTED DATA.” Undated document concerning nuclear weaponry of the United States.
20 – January 20, 2021 – August 8, 2022. “TOP SECRET”/(redacted)/”ORCON”/”NOFORN.” Undated document concerning timeline and details of attack in a foreign country.
21 – January 20, 2021 – August 8, 2022. “SECRET”/”NOFORN.” Undated document concerning military capabilities of foreign countries.
22 – January 20, 2021 – June 3, 2022. “TOP SECRET”/(redacted)/”RSEN”/”ORCON”/”NOFORN.” Document dated August 2019 concerning regional military activity of a foreign country.
23 – January 20, 2021 – June 3, 2022. “TOP SECRET”/”SPECIAL HANDLING.” Document dated August 30, 2019 concerning White House intelligence briefing related to various foreign countries, with handwritten annotation in black marker.
24 – January 20, 2021 – June 3, 2022. “TOP SECRET”/”HCS-P”/SI”/”ORCON-USGOV”/”NOFORN.” Undated document concerning military activity of a foreign country.
25 – January 20, 2021 – June 3, 2022. “TOP SECRET”/”HCS-P”/SI”/”ORCON-USGOV”/”NOFORN.” Document dated October 24, 2019 concerning military activity of foreign countries and the United States.
26 – January 20, 2021 – June 3, 2022. “TOP SECRET”/(redacted)/”ORCON”/”NOFORN”/”FISA.” Document dated November 27, 2019 concerning military activity of foreign countries and the United States.
27 – January 20, 2021 – June 3, 2022. “TOP SECRET”/”SI”/”TK”/”NOFORN.” Document dated November 2019 concerning military activity of foreign countries.
28 – January 20, 2021 – June 3, 2022. “TOP SECRET”/”SPECIAL HANDLING.” Document dated October 18, 2019 concerning White House intelligence briefing related to various foreign countries.
29 – January 20, 2021 – June 3, 2022. “TOP SECRET”/(redacted)/”SI”/”TK”/”ORCON”/”NOFORN.” Document dated October 18, 2019 concerning military capabilities of a foreign country.
30 – January 20, 2021 – June 3, 2022. “TOP SECRET”/(redacted)/”ORCON”/”NOFORN”/”FISA.” Document dated October 15, 2019 concerning military activity in a foreign country.
31 – January 20, 2021 – June 3, 2022. “TOP SECRET”/”SI”/”TK”/”NOFORN.” Document dated February 2017 concerning military activity of a foreign country.
*** All accusations are in violation of Title 18, United States Code, Section 793(e).
COUNT 32 – CONSPIRACY TO OBSTRUCT JUSTICE[18 U.S.C. § 1512(k)]
From on or about May 11, 2022, through in or around August 2022, in Palm Beach County, in the Southern District of Florida, and elsewhere, the defendants, Donald J. Trump and Waltine Nauta did knowingly combine, conspire, confederate, and agree with each other and with others known and unknown to the grand jury, to engage in misleading conduct toward another person and corruptly persuade another person to withhold a record, document, and other objects from an official proceeding in violation of 18 U.S.C. § 1512(b)(2)(A), and to corruptly conceal a record, document, and other objects from an official proceeding in violation of 18 U.S.C. § 1512(c)(1). The purpose of the conspiracy was for Trump to keep classified documents he had taken from the White House and to hide and conceal them from a federal grand jury.
The manner and means by which the defendants sought to accomplish the objects and purpose of the conspiracy included, among other things, the following:
Suggesting that Trump Attorney #1 falsely represent to the FBI and grand jury that Trump did not have documents called for by the May 11 Subpoena;
Moving boxes of documents to conceal them from Trump Attorney #1, the FBI, and the grand jury;
Suggesting that Trump Attorney #1 hide or destroy documents called for by the May 11 Subpoena;
Providing to the FBI and grand jury just some of the documents called for by the May 11 Subpoena, while Trump claimed he was cooperating fully;
Causing a false certification to be submitted to the FBI and grand jury representing that all classified documents had been produced, when in fact they had not; and
Making false and misleading statements to the FBI.
*** All accusations are in violation of Title 18, United States Code, Section 1512(k).
COUNT 33 – WITHHOLDING A DOCUMENT OR RECORD [[18 U.S.C. § 1512(b)(2)(A), 2]
From on or about May 11, 2022, through in or around August 2022, in Palm Beach County, in the Southern District of Florida, and elsewhere, the defendants, Donald J. Trump and Waltine Nauta did knowingly engage in misleading conduct towards another person, and knowlingly corruptly persuade and attempt to persuade another person, with intent to cause and induce any person to withhold a record, document, and other objects from an official proceeding. That is: (1) Trump attempted to persuade Trump Attorney #1 to hide and conceal documents from a federal grand jury; and (2) Trump and Nauta misled Trump Attorney #1 by moving boxes that contained documents with classification markings so that Trump Attorney #1 would not find the documents and produce them to a federal grand jury.
*** All accusations are in violation of Title 18, United States Code, Section 1512(b)(2)(A) and 2.
COUNT 34 – CORRUPTLY CONCEALING A DOCUMENT OR RECORD [[18 U.S.C. § 1512(c)(1), 2]
From on or about May 11, 2022, through in or around August 2022, in Palm Beach County, in the Southern District of Florida, and elsewhere, the defendants, Donald J. Trump and Waltine Nauta did corruptly conceal a record, document, and other objects, and attempted to do so, with the intent to impair the object’s integrity and availability for use in an official proceeding. That is – Trump and Nauta hid and concealed boxes that contained classified documents from Trump Attorney #1 so that Trump Attorney #1 would not find the documents and produce them to a federal grand jury.
*** All accusations are in violation of Title 18, United States Code, Section 1512(c)(1) and 2.
COUNT 35 – CONCEALING A DOCUMENT IN A FEDERAL INVESTIGATION [[18 U.S.C. § 1519, 2]
From on or about May 11, 2022, through in or around August 2022, in Palm Beach County, in the Southern District of Florida, and elsewhere, the defendants, Donald J. Trump and Waltine Nauta did knowingly conceal, cover up, falsify, and make a false entry in any record, document, and tangible object with the intent to impede, obstruct, and influence the investigation and proper administration of any matter within the jurisdiction of a department and agency of the United States, and in relation to and contemplation of any such matter. That is, during a federal criminal investigation being conducted by the FBI: (1) Trump and Nauta hid, concealed, and covered up from the FBI Trump’s continued possession of classified documents at Mar-A-Lago; and (2) Trump caused a false certification to be submitted to the FBI.
*** All accusations are in violation of Title 18, United States Code, Section 1519 and 2.
From on or about May 11, 2022, through in or around August 2022, in Palm Beach County, in the Southern District of Florida, and elsewhere, the defendants, Donald J. Trump and Waltine Nauta in a matter within the jurisdiction of the judicial branch and executive branch of the United States government, did knowingly and willfully falsify, conceal, and cover up by any trick, scheme, and device a material fact. That is, during a federal grand jury investigation being conducted by the FBI, Trump and Nauta hid and concealed from the grand jury and the FBI Trump’s continued possession of classified documents.
*** All accusations are in violation of Title 18, United States Code, Section 1001(a)(1) and 2.
From on or about May 11, 2022, through in or around August 2022, in Palm Beach County, in the Southern District of Florida, and elsewhere, the defendant, Donald J. Trump in a matter within the jurisdiction of the judicial branch and executive branch of the United States government, did knowingly and willfully make and cause to be made a materially false, fictitious, and fraudulent statement and representation. That is, during a federal grand jury investigation and a federal criminal investigation being conducted by the FBI Trump caused the following false statements and representations to be made to the grand jury and the FBI, in a sworn certification executed by Trump Attorney #3:
“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 statements and representations set forth above were false, as Trump knew, because Trump had directed that boxes be removed from the Storage Room before Trump Attorney #1 conducted the June 2 search for classified documents, so that Trump Attorney #1’s search would not and did not include all of Trump’s boxes that were removed from the White House. Trump Attorney #1’s search would not and did not locate all documents responsive to the May 11 Subpoena and therefor, all responsive documents were not provided to the FBI and grand jury with the certification. In fact, after June 3, 2022, more than 100 classified documents remained at Mar-A-Lago until the FBI search on August 8, 2022.
*** All accusations are in violation of Title 18, United States Code, Section 1001(a)(1) and 2.
On May 26, 2022, defendant Waltine Nauta participated in a voluntary interview with the FBI. During the interview, the FBI explained to Nauta that the FBI was investigating how classified documents had been kept at Mar-A-Lago. The FBI asked him questions about the location and movement of Trump’s boxes before Trump provided 15 boxes to NARA, on January 17, 2022. Nauta was represented by counsel, and the FBI advised him that the interview was voluntary and that he could leave at any time. The FBI also advised Nauta that it was a criminal offense to lie to the FBI. The interview was recorded.
On or about May 26, 2022, in Palm Beach County, in the Southern District of Florida, and elsewhere, defendant Nauta in a matter within the jurisdiction of the executive branch of the United States government, did knowingly and willfully make a false, fictitious, and fraudulent statement and representation. That is, in a voluntary interview during a federal criminal investigation conducted by the FBI, Nauta was asked pointed and direct questions about the movement of the boxes at issue and gave answers that were false and misleading. For example, the FBI asked him: “So you didn’t know, or have any idea how they got there before?” Nauta answered: “No.”
The questions and answers/representations were false, as Nauta knew, because: (1) Nauta did in fact know that the boxes had come from the Storage Room, as Nauta with the assistance of Trump Employee #2 had moved the boxes themselves; and (2) Nauta had observed the boxes in their original location at Mar-A-Lago and then moved them to various locations at the Club.
*** All accusations are in violation of Title 18, United States Code, Section 1001(a)(2).
CONCLUSION: Again, we are witnessing a crazed attempt to weaponize the federal judicial process by accusing a former US president (and 2024 presidential election front-runner) of violating the Espionage Act. We will see how the case plays out.
All I will say is that a court, and I’m sure Donald Trump and his lawyers will take it to the highest court, the Supreme Court, will have to consider the vindictiveness of President Biden and the Democratic Party in going after a good man, perhaps the most successful president that our country has ever had, to pressure him into dropping out of the presidential race and ultimately, to prevent him from serving as president again. I don’t see it happening.
Janice Hisle and Lawrence Wilson, “Trump Pleads Not Guilty,” The Epoch Times, June 14-20, 2023.
Petr Svab, “Trump Faces Novel Legal Theory,” The Epoch Times, June 14-20, 2023.
APPENDIX – THE ESPIONAGE ACT of 1917: 18 U.S. Code § 793 – Gathering, Transmitting or Losing Defense Information
U.S. Code
(a) Whoever, for the purpose of obtaining information respecting the national defense with intent or reason to believe that the information is to be used to the injury of the United States, or to the advantage of any foreign nation, goes upon, enters, flies over, or otherwise obtains information concerning any vessel, aircraft, work of defense, navy yard, naval station, submarine base, fueling station, fort, battery, torpedo station, dockyard, canal, railroad, arsenal, camp, factory, mine, telegraph, telephone, wireless, or signal station, building, office, research laboratory or station or other place connected with the national defense owned or constructed, or in progress of construction by the United States or under the control of the United States, or of any of its officers, departments, or agencies, or within the exclusive jurisdiction of the United States, or any place in which any vessel, aircraft, arms, munitions, or other materials or instruments for use in time of war are being made, prepared, repaired, stored, or are the subject of research or development, under any contract or agreement with the United States, or any department or agency thereof, or with any person on behalf of the United States, or otherwise on behalf of the United States, or any prohibited place so designated by the President by proclamation in time of war or in case of national emergency in which anything for the use of the Army, Navy, or Air Force is being prepared or constructed or stored, information as to which prohibited place the President has determined would be prejudicial to the national defense; or
(b) Whoever, for the purpose aforesaid, and with like intent or reason to believe, copies, takes, makes, or obtains, or attempts to copy, take, make, or obtain, any sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, document, writing, or note of anything connected with the national defense; or
(c) Whoever, for the purpose aforesaid, receives or obtains or agrees or attempts to receive or obtain from any person, or from any source whatever, any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note, of anything connected with the national defense, knowing or having reason to believe, at the time he receives or obtains, or agrees or attempts to receive or obtain it, that it has been or will be obtained, taken, made, or disposed of by any person contrary to the provisions of this chapter; or
(d) Whoever, lawfully having possession of, access to, control over, or being entrusted with 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, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted or attempts to communicate, deliver, transmit or cause to be communicated, delivered or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it on demand to the officer or employee of the United States entitled to receive it; or
(e) Whoever having unauthorized possession of, access to, or control over 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, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted, or attempts to communicate, deliver, transmit or cause to be communicated, delivered, or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it to the officer or employee of the United States entitled to receive it; or
(f) Whoever, being entrusted with or having lawful possession or control of any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, note, or information, relating to the national defense, (1) through gross negligence permits the same to be removed from its proper place of custody or delivered to anyone in violation of his trust, or to be lost, stolen, abstracted, or destroyed, or (2) having knowledge that the same has been illegally removed from its proper place of custody or delivered to anyone in violation of its trust, or lost, or stolen, abstracted, or destroyed, and fails to make prompt report of such loss, theft, abstraction, or destruction to his superior officer—
Shall be fined under this title or imprisoned not more than ten years, or both.
18 U.S.C. § 18 U.S. Code § 1512 – Tampering with a Witness, Victim, or an Informant
(a)
(1) Whoever kills or attempts to kill another person, with intent to—
(A) prevent the attendance or testimony of any person in an official proceeding;
(B) prevent the production of a record, document, or other object, in an official proceeding; or
(C) prevent the communication by any person to a law enforcement officer or judge of the United States of information relating to the commission or possible commission of a Federal offense or a violation of conditions of probation, parole, or release pending judicial proceedings;
shall be punished as provided in paragraph (3).
(2) Whoever uses physical force or the threat of physical force against any person, or attempts to do so, with intent to—
(A) influence, delay, or prevent the testimony of any person in an official proceeding;
(B) cause or induce any person to—
(i) withhold testimony, or withhold a record, document, or other object, from an official proceeding;
(ii) alter, destroy, mutilate, or conceal an object with intent to impair the integrity or availability of the object for use in an official proceeding;
(iii) evade legal process summoning that person to appear as a witness, or to produce a record, document, or other object, in an official proceeding; or
(iv)be absent from an official proceeding to which that person has been summoned by legal process; or
(C) hinder, delay, or prevent the communication to a law enforcement officer or judge of the United States of information relating to the commission or possible commission of a Federal offense or a violation of conditions of probation, supervised release, parole, or release pending judicial proceedings;
shall be punished as provided in paragraph (3).
(3) The punishment for an offense under this subsection is—
(A) in the case of a killing, the punishment provided in sections 1111 and 1112;
(B) in the case of—
(i) an attempt to murder; or
(ii) the use or attempted use of physical force against any person;
imprisonment for not more than 30 years; and
(C) in the case of the threat of use of physical force against any person, imprisonment for not more than 20 years.
(b) Whoever knowingly uses intimidation, threatens, or corruptly persuades another person, or attempts to do so, or engages in misleading conduct toward another person, with intent to—
(1) influence, delay, or prevent the testimony of any person in an official proceeding;
(2) cause or induce any person to—
(A) withhold testimony, or withhold a record, document, or other object, from an official proceeding;
(B) alter, destroy, mutilate, or conceal an object with intent to impair the object’s integrity or availability for use in an official proceeding;
(C) evade legal process summoning that person to appear as a witness, or to produce a record, document, or other object, in an official proceeding; or
(D) be absent from an official proceeding to which such person has been summoned by legal process; or
(3) hinder, delay, or prevent the communication to a law enforcement officer or judge of the United States of information relating to the commission or possible commission of a Federal offense or a violation of conditions of probation [1] supervised release,[1] parole, or release pending judicial proceedings;
shall be fined under this title or imprisoned not more than 20 years, or both.
(c) Whoever corruptly—
(1) alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with the intent to impair the object’s integrity or availability for use in an official proceeding; or
(2) otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so,
shall be fined under this title or imprisoned not more than 20 years, or both.
(d)Whoever intentionally harasses another person and thereby hinders, delays, prevents, or dissuades any person from—
(1) attending or testifying in an official proceeding;
(2) reporting to a law enforcement officer or judge of the United States the commission or possible commission of a Federal offense or a violation of conditions of probation 1 supervised release,,1 parole, or release pending judicial proceedings;
(3) arresting or seeking the arrest of another person in connection with a Federal offense; or
(4) causing a criminal prosecution, or a parole or probation revocation proceeding, to be sought or instituted, or assisting in such prosecution or proceeding;
or attempts to do so, shall be fined under this title or imprisoned not more than 3 years, or both.
(e) In a prosecution for an offense under this section, it is an affirmative defense, as to which the defendant has the burden of proof by a preponderance of the evidence, that the conduct consisted solely of lawful conduct and that the defendant’s sole intention was to encourage, induce, or cause the other person to testify truthfully.
(f) For the purposes of this section—
(1) an official proceeding need not be pending or about to be instituted at the time of the offense; and
(2) the testimony, or the record, document, or other object need not be admissible in evidence or free from a claim of privilege
(g) In a prosecution for an offense under this section, no state of mind need be proved with respect to the circumstance—
(1) that the official proceeding before a judge, court, magistrate judge, grand jury, or government agency is before a judge or court of the United States, a United States magistrate judge, a bankruptcy judge, a Federal grand jury, or a Federal Government agency; or
(2) that the judge is a judge of the United States or that the law enforcement officer is an officer or employee of the Federal Government or a person authorized to act for or on behalf of the Federal Government or serving the Federal Government as an adviser or consultant.
(h) There is extraterritorial Federal jurisdiction over an offense under this section.
(i) A prosecution under this section or section 1503 may be brought in the district in which the official proceeding (whether or not pending or about to be instituted) was intended to be affected or in the district in which the conduct constituting the alleged offense occurred.
(j) If the offense under this section occurs in connection with a trial of a criminal case, the maximum term of imprisonment which may be imposed for the offense shall be the higher of that otherwise provided by law or the maximum term that could have been imposed for any offense charged in such case.
(k) Whoever conspires to commit any offense under this section shall be subject to the same penalties as those prescribed for the offense the commission of which was the object of the conspiracy.
18 U.S. Code § 1001 – Statements or Entries Generally
(a) Except as otherwise provided in this section, whoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully—
(1) falsifies, conceals, or covers up by any trick, scheme, or device a material fact;
(2) makes any materially false, fictitious, or fraudulent statement or representation; or
(3) makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry;
shall be fined under this title, imprisoned not more than 5 years or, if the offense involves international or domestic terrorism (as defined in section 2331), imprisoned not more than 8 years, or both. If the matter relates to an offense under chapter 109A, 109B, 110, or 117, or section 1591, then the term of imprisonment imposed under this section shall be not more than 8 years.
(b) Subsection (a) does not apply to a party to a judicial proceeding, or that party’s counsel, for statements, representations, writings or documents submitted by such party or counsel to a judge or magistrate in that proceeding.
(c) With respect to any matter within the jurisdiction of the legislative branch, subsection (a) shall apply only to—
(1) administrative matters, including a claim for payment, a matter related to the procurement of property or services, personnel or employment practices, or support services, or a document required by law, rule, or regulation to be submitted to the Congress or any office or officer within the legislative branch; or
(2) any investigation or review, conducted pursuant to the authority of any committee, subcommittee, commission or office of the Congress, consistent with applicable rules of the House or Senate.
Presidential Records Act (PRA) of 1978 – 44 U.S.C. § 2201-2209, governs the official records of Presidents and Vice Presidents that were created or received after January 20, 1981 (i.e., beginning with the Reagan Administration). The PRA changed the legal ownership of the official records of the President from private to public, and established a new statutory structure under which Presidents, and subsequently NARA, must manage the records of their Administrations. The PRA was amended in 2014, which established several new provisions.
Specifically, the Presidential Records Act provides:
— Establishes public ownership of all Presidential records and defines the term Presidential records.
— Requires that Vice-Presidential records be treated in the same way as Presidential records.
— Places the responsibility for the custody and management of incumbent Presidential records with the President.
— Requires that the President and his staff take all practical steps to file personal records separately from Presidential records.
— Allows the incumbent President to dispose of records that no longer have administrative, historical, informational, or evidentiary value, once the views of the Archivist of the United States on the proposed disposal have been obtained in writing.
— Establishes in law that any incumbent Presidential records (whether textual or electronic) held on courtesy storage by the Archivist remain in the exclusive legal custody of the President and that any request or order for access to such records must be made to the President, not NARA.
— Establishes that Presidential records automatically transfer into the legal custody of the Archivist as soon as the President leaves office.
— Establishes a process by which the President may restrict and the public may obtain access to these records after the President leaves office; specifically, the PRA allows for public access to Presidential records through the Freedom of Information Act (FOIA) beginning five years after the end of the Administration, but allows the President to invoke as many as six specific restrictions to public access for up to twelve years.
— Codifies the process by which former and incumbent Presidents conduct reviews for executive privilege prior to public release of records by NARA (which had formerly been governed by Executive order 13489) .
— Establishes procedures for Congress, courts, and subsequent Administrations to obtain “special access” to records from NARA that remain closed to the public, following a privilege review period by the former and incumbent Presidents; the procedures governing such special access requests continue to be governed by the relevant provisions of E.O. 13489.
— Establishes preservation requirements for official business conducted using non-official electronic messaging accounts: any individual creating Presidential records must not use non-official electronic messaging accounts unless that individual copies an official account as the message is created or forwards a complete copy of the record to an official messaging account. (A similar provision in the Federal Records Act applies to federal agencies.)
— Prevents an individual who has been convicted of a crime related to the review, retention, removal, or destruction of records from being given access to any original records.
Tenth Amendment Keepers 