Former President Donald Trump’s indictment, which was unsealed Friday afternoon, is even more shocking than his lawyers suggested in advance. It charges him with seven separate crimes, including 31 counts of “willful retention of national defense information” at his Mar-a-Lago compound, several counts of withholding or “corruptly concealing” public documents, and a few of lying to federal investigators—37 counts in all.*
But quite apart from the legal issues (which seem incontestably grave), what was in all these documents? Could Trump’s mishandling of them have really jeopardized national security?
Even now, 15 months after the FBI investigation got underway, we don’t know exactly what information these documents contain. But even before this indictment we knew enough—and now we know more—to infer that the damage, at least potentially, was very high. As another former president, Barack Obama, once said, “There’s classified, and there’s classified.” By that measure, many of the documents that Trump took with him from the White House were classified—italicized and boldfaced.
According to the indictment, one document dealt with an intelligence briefing about the nuclear capabilities of foreign countries. Others dealt with U.S. and allied military capabilities as well as their vulnerabilities to foreign military attacks. Some dealt with military operations. And a lot of them were classified at a very high level.
Let us review the facts that were made public nearly a year ago—but may have been widely forgotten. The affidavit filed by the Justice Department last August noted that in early 2022, the FBI retrieved 15 boxes of documents, that 22 documents were classified top-secret, and that some of those (the number was unspecified) contained even more sensitive markings, including HCS, SCI, FISA, ORCA, and NOFORN.
These obscure acronyms suggest that Trump is in very deep trouble, and it’s completely self-inflicted.
HCS means “HUMINT Control System,” and HUMINT means “human intelligence”—i.e., intelligence gathered by human spies. These documents may contain the identities of spies as well as the information they supplied.
FISA means information processed through the Foreign Intelligence Surveillance Act’s special court. This would include intercepts of foreign governments’ communications.
ORCON stands for “originator controlled,” meaning that dissemination—even within the government, even to officials cleared for top-secret—must first be approved by the originator (e.g., the CIA, if the document was created by CIA). In other words, Trump couldn’t have declassified these papers, even if he had wanted to.
NOFORN means the document cannot be shared with foreign governments or citizens, not even with allies.
In other words, some of these documents—as an official familiar with them told the Washington Post at the time—ranked “among the most sensitive secrets we hold.”
The FBI special agent who filed the affidavit wrote that he had “probable cause” to believe that there were more boxes containing more highly classified documents still hidden away at Mar-a-Lago, many in unsecured locations. The judge approved his request to go back for another look. The court-ordered search three days later, on Aug. 8, retrieved more than 300 classified documents.
In other words, this is not a case of a few sheets of paper marked “secret” getting shuffled in with personal effects as a president’s staff hastily vacates the White House before a successor moves in. The indictment quotes tape recordings of conversations proving that Trump knew he had classified documents—he’s showing them to a visitor during the conversation—and that he had no business having them.
The indictment also claims, with photographic evidence, that these boxes were stored, for several months, in places at Mar-a-Lago that were completely accessible to guests—including a ballroom stage, a public bathroom, and a storage room that could be “reached from multiple outside entrances,” including one near a swimming pool.
It also states that Trump’s valet—who is also indicted—helped him move boxes in order to conceal them from federal agents who came to retrieve them.
Trump and his lawyers have said that what he did with secret documents was no different from what Hillary Clinton or President Joe Biden did with theirs—but in fact, those cases are very different. It is true that Biden had classified documents among his archive at his Washington think tank and in his Delaware home. We don’t know how many, or just how classified they were (an investigation is ongoing), but he did hand them over instantly; in fact, the documents at the think tank were discovered by his staff, who let the FBI know about them.
As for Clinton, when she was secretary of state, she did text or discuss classified information on her cellphone, which could have been tapped or hacked. But an FBI investigation uncovered only eight calls that contained top-secret information. Seven of those dealt with CIA drone strikes, which were classified by nature but which had been reported in newspapers around the time of the calls. One of them was about a conversation with the prime minister of Malawi; also, by nature, conversations with foreign leaders are deemed top-secret. None of them contained SCI, HCS, or any of the other beyond–top-secret designations. If Russian or Chinese agents had transcribed everything she said, they wouldn’t have learned anything of use.
It is worth recalling that, during the 2016 campaign, Trump railed against Clinton’s carelessness with secrets. It galvanized the war cry at that year’s Republican National Convention: “Lock her up!” It also drove him, early on in his presidency, to upgrade at least one law against improper handling of secret information from misdemeanor to felony—karma indeed!
If Trump is found guilty on all counts, he could be imprisoned for up to 100 years and fined $1.75 million.
Why did Trump take so many secret documents with him? Was it just to show them off to visitors? He apparently did some of that. From a legal point of view, it doesn’t matter. The laws apply regardless of motive. At least one of the laws doesn’t even specify that the mishandled document needs to be classified. This, of course, is foolish; maybe the case against Trump will drive some Republicans to modify some of these laws (probably not, though).
Meanwhile, though, some of these documents—some of Trump’s pilferings and mishandlings—are serious by any criterion, not just legal technicalities. It is not true that “all presidents have done this,” as Trump and some of his apologists claim. The prosecutors don’t need to draw any distinction on legal grounds. But they need to draw them anyway, not for political reasons but to prevent Trump’s trial from becoming politicized.
Correction, June 12, 2023: This piece originally misstated that Trump has been indicted on 38 counts. There were 37 counts against Trump; the indictment’s 38th count was solely against his valet, Walt Nauta.
