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Fact check: Debunking Trump’s blizzard of dishonesty about his federal indictment

<i>Anna Moneymaker/Getty Images</i><br/>Former President Donald Trump will appear in federal court in Miami on Tuesday
Anna Moneymaker/Getty Images
Former President Donald Trump will appear in federal court in Miami on Tuesday

By Daniel Dale, CNN

Washington (CNN) — Former President Donald Trump has responded to his federal indictment the way he has responded to various other crises – with a blizzard of dishonesty.

In posts on his social media platform and in Saturday speeches in Georgia and North Carolina, Trump made numerous false or misleading claims about his handling of classified documents, the FBI’s conduct in the related investigation, the Presidential Records Act, his dealings with the federal government prior to the search of his Mar-a-Lago club and residence, and President Joe Biden’s own handling of documents.

Here is a fact check of 10 of the indictment-related claims Trump has made since the 37 federal charges against him were unsealed on Friday.

A toppled box at Mar-a-Lago

In his speech in Georgia on Saturday, Trump mentioned a photo that was included in the indictment. The photo, which was taken at Mar-a-Lago, shows a toppled box from which papers had spilled out onto the floor.

Trump said: “I looked – it looked so orderly and nice. Somehow somebody turned over one of the boxes. Did you see that? I said, ‘I wonder who did that? Did the FBI do that?’”

Facts First: The suggestion that it’s even possible that the FBI might have turned over this box is nonsense. According to the indictment, the photo was taken in December 2021 by Trump aide and accused co-conspirator Walt Nauta, who the indictment says texted the photo to another Trump employee with the words “I opened the door and found this…” The FBI did not execute its search warrant at Mar-a-Lago until August 2022, eight months later, so it could not possibly have done the toppling.

The contents of the toppled box

In a Friday social media post, Trump also claimed that the photo of the toppled box did not show any “documents” at all: “The Box on the floor which was opened (who opened it?) clearly shows there was no ‘documents,’ but rather newspapers, personal pictures, etc. WITCH HUNT!” He said in the speech in Georgia: “But the box that was turned over – it had newspapers, it had pictures, it had clippings, it had all sorts of things. Nobody saw any documents there.”

Facts First: Trump’s claim that nobody saw any “documents” in the photo of the toppled box is false. While the photo does show newspapers and pictures among the materials that had spilled onto the Mar-a-Lago floor, the photo also clearly shows other unidentified papers in the pile – one of which prosecutors allege was classified and labeled with markings making clear it was releasable only to the members of an intelligence alliance composed of the US and four other countries.

The indictment says prosecutors redacted the “visible classified information” from the photo. While the indictment did not explicitly say which of the pieces of paper shown in the photo was the classified document, it is possible that it is the document with a dark rectangular bar, a common redaction method, across the top of the page.

It is theoretically possible that Trump himself did not see this document amid the mess depicted in the photo. But it’s not true that “nobody” saw any documents.

The charges against Trump

In the Georgia speech, Trump said of the 37 federal charges on which he was indicted in the documents case: “They take one charge, and they turn it into 36 charges. You saw that. Everybody was amazed. Lawyers on television … they’re not usually the best lawyers, but some are very good – they say, ‘We’ve never seen anything like it; they took one charge, and they made it 36 different times.’”

Facts First: These Trump remarks are both false and misleading. They are false because it’s not true that Trump was hit with the same “one charge” 36 times. Of the 37 charges in the federal indictment, 31 are for allegedly violating the same statute, against “willful retention of national defense information,” but each charge is for allegedly retaining a different classified document. The six other offenses are different: conspiracy to obstruct justice, withholding a document or record, corruptly concealing a document or record, concealing a document in a federal investigation, scheme to conceal, and making false statements and representations. And Trump’s remarks are misleading because, while it’s not clear what he may have heard a lawyer say on television, it is normal, not unprecedented, for defendants to face a separate charge for each classified document they are accused of illegally retaining.

Brandon Van Grack, a national security lawyer and former Justice Department official who previously worked on the Mueller investigation into Russian interference in the 2016 election, said in a Sunday email that it is “very common” for people accused of unlawfully retaining multiple documents to face multiple counts. He noted, for example, that the 2017 indictment of former National Security Agency contractor Harold Martin “had twenty different counts for twenty different classified documents.”

It’s worth noting that Trump could have conceivably faced far more than 31 charges for willfully retaining national defense information; the indictment says 102 documents with classification markings were found during the August 2022 search of Mar-a-Lago, 38 other such documents were returned by Trump in June 2022 in response to a subpoena, and 197 more were returned by Trump in January 2022 “after months of demands” from the National Archives and Records Administration. As is also standard, prosecutors used their discretion to file charges over only some of the documents.

Trump’s dealings with the National Archives and Records Administration

In the Georgia speech, Trump made this claim: “As a former president, we were negotiating with the National Archives and Records Administration (NARA), just as every other president has done, and the next thing I knew, Mar-a-Lago was raided by gun-toting FBI agents.”

Facts First: These claims, too, are false in one way and highly misleading in another. It’s not true that Trump was negotiating “just as every other president has done”; no other ex-president since the Presidential Records Act took effect with President Ronald Reagan’s records in the 1980s has engaged in anything like Trump’s protracted post-presidency refusal to return official documents sought by NARA – which the Presidential Records Act requires to be in NARA’s custody and control the moment a president leaves office.

And Trump’s narrative about what transpired with the federal effort to get the documents back – that he was supposedly conducting standard negotiations with NARA and then, all of a sudden, his resort was raided by the FBI – is highly misleading because it omits numerous critical facts. The court-approved search of Mar-a-Lago did not occur until more than a year after NARA first began seeking the return of records from Trump. The former president didn’t mention that he failed to return all the records, not only when he was repeatedly asked by NARA but even when he was served with a Justice Department subpoena in May 2022.

Trump and the Presidential Records Act

Trump claimed in North Carolina that he had abided by the Presidential Records Act: “And we had a great – we had a wonderful operation, everything by the Presidential Records Act.”

Facts First: This is false. The Presidential Records Act says that all presidential records belong to the federal government the moment the president leaves office. By having official records at Mar-a-Lago after his presidency, Trump was in clear contravention of the law.

The key sentence from the Presidential Records Act is unequivocal: “Upon the conclusion of a President’s term of office, or if a President serves consecutive terms upon the conclusion of the last term, the Archivist of the United States shall assume responsibility for the custody, control, and preservation of, and access to, the Presidential records of that President.”

Jason R. Baron, former director of litigation at NARA, said in a Sunday email: “Under the Presidential Records Act, not a single document pertaining to the official business of the White House – classified or unclassified – should have been carted off to Mar-A-Lago. President Trump might consider such records to be ‘his,’ but they are not.”

A previous photo from the investigation

After baselessly musing in the Georgia speech about whether the FBI had been responsible for toppling the box seen in the indictment photo, Trump also made a claim about a different photo that federal prosecutors had included in a court filing in August. That photo showed multiple papers with classification markings spread out on a Mar-a-Lago floor.

Trump said of the FBI: “Because they also did something where they put documents all over the floor. So they took pictures. And they tried to pretend like I did it. And then they had to apologize – they did it.”

Facts First: It is not true that the FBI or Justice Department “had to apologize” for the photo they included in the August court filing. They did not apologize at all. It is standard procedure, as The New York Times and Insider reported at the time, for investigators to lay out and photograph evidence they have discovered after executing a search warrant.

It is true that some observers who saw the photo in the August court filing initially believed that it showed how the FBI had found the documents rather than merely how the agency had laid them out on the floor. However, the FBI and Justice Department never falsely described the photo. The court filing said that the photo showed certain documents and cover sheets that had been “recovered from a container” in a Trump office, not that the documents had been found on the floor – and, regardless, no apology ever came despite Trump’s repeated complaints at the time.

The documents found at Mar-a-Lago

In a social media post on Friday, Trump returned to his familiar claim that the FBI likely planted evidence amid the material found at Mar-a-Lago.

“When the FBI raided Mar-a-Lago, they wouldn’t let my lawyers or representatives anywhere near them. They wouldn’t tell us what they took. Knowing them, and based on past performance, they probably later ‘stuffed’ in other documents,” he wrote.

Facts First: Neither Trump nor any of his allies has provided one iota of evidence that anyone planted anything at Mar-a-Lago or amid the items seized at Mar-a-Lago. Despite Trump’s own claims, the former president’s legal team has never argued in a court filing that the FBI planted evidence – even when the legal team was given an explicit opportunity to do so after the FBI released an official inventory listing what it had found. And it is routine, not suspicious, for searches to be conducted without outside witnesses such as lawyers being in the room; lawyers for the person under investigation don’t have a right to watch.

Before an appeals court shut down a special master review of the seized items in late 2022, Trump’s lawyers had resisted the special master’s requirement that they state in a sworn court declaration whether they believed the official inventory included items that were not actually seized from Mar-a-Lago – in other words, if they believed phony items were inserted into the evidence. A judge then ruled that they didn’t have to make this declaration.

Biden and the indictment

Trump claimed in North Carolina: “You’re watching Joe Biden try to jail his leading political opponent. Think of it – this is like third world country stuff.”

Facts First: This claim is not supported by any evidence. There is no sign that Biden has been involved in the decision to criminally investigate or prosecute Trump; ordinary citizens on a Florida grand jury voted to indict Trump, and the prosecution is led by a special counsel, Jack Smith. Smith was appointed in November 2022 by Attorney General Merrick Garland, a Biden appointee, but that is clearly not proof that Biden was involved in the prosecution effort.

Biden said Friday that he had not spoken to Garland on the subject and was “not going to speak with him.”

Biden’s Senate records

As he did repeatedly in the weeks prior to the indictment, Trump used the Georgia speech to attack Biden’s own handling of official documents – and to repeat, without explanation, that Biden has “1,850 boxes.”

“Think of it: 1,850 boxes. Mine is peanuts,” Trump said.

Facts First: Trump’s comparison is highly misleading. The approximately 1,850 boxes that Biden legally and properly donated in 2012 to the University of Delaware are a collection of records from his 36 years in the US Senate. Unlike presidents, whose official records are property of the federal government under the Presidential Records Act, senators own their offices’ records and can do whatever they want with them – donate them to colleges, keep them at their homes, give them to journalists, even throw them in the trash.

In addition, there is no current evidence that these boxes of Biden documents contain any classified documents; Biden consented to two FBI searches at the university that did not initially appear to turn up any documents with classified markings, a source familiar with the investigation told CNN’s Paula Reid in February, though the papers were still being analyzed at the time.

Margaret Kwoka, a law professor at The Ohio State University and an expert on information law, said in a Friday email that “any comparison between congressional records and presidential records is an apples-to-oranges comparison. The legal requirements are entirely different between the two.”

You can read a longer fact check here about the repository of Senate documents at the University of Delaware.

Biden’s cooperation with investigators

Trump tried once more to turn the tables on Biden, who is himself under an ongoing special counsel investigation for his handling of classified documents. In the Georgia speech, Trump said, “He’s got boxes all over the place, he doesn’t know what the hell to do with them, and he’s fighting them on the boxes. He doesn’t want to give the boxes.” Later in the speech, Trump said Biden “has so many classified documents,” but “he’s trying to prevent them from seeing it – that’s obstruction. But we didn’t do any obstruction.”

Facts First: This is false. There is no evidence that Biden is “fighting” federal investigators or that he has committed “obstruction.” Biden has consented to FBI searches at the University of Delaware (where, again, the “boxes” Trump keeps invoking are stored), his two Delaware homes, and his former think tank office in Washington. Biden’s team has also promptly handed over classified documents to federal authorities upon themselves discovering such documents at properties used by Biden – unlike Trump, who fought and then allegedly obstructed efforts from NARA and the Justice Department to secure the return of classified documents from him.

This was not a one-time overstatement by Trump. He has repeatedly and falsely accused Biden of committing obstruction and of refusing to allow anyone to see the boxes at the university.

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