Prosecutors allege in the 49-page indictment of former President Donald Trump that he deliberately withheld documents containing sensitive defense information about nuclear programs and more, then tried to obstruct investigators trying to locate them.
“The indictment is very well laid out,” Nick Akerman, a former Watergate prosecutor, told ABC News. “The charges are very specific, cross-cutting, and focused on Trump’s knowledge, intent, and involvement. The totality of the whole picture is damning.”
Breaking the charges
The indictment includes 31 counts against Trump of the unauthorized possession and willful withholding of national defense documents, charges that fall under the Espionage Act.
“This is an under-indicted act,” Neama Rahmani, a former federal prosecutor, told ABC News.
In order for prosecutors to win a conviction on those charges, they must prove that Trump knew or had reason to believe that the material could be used against US interests, according to former Assistant US Attorney Kevin O’Brien.
But while Trump has claimed without evidence that he declassified all the material, legal experts say ABC News prosecutors would not have to prove the documents were classified. “The classification system really has nothing to do with the charge,” O’Brien said.
The six remaining charges, including conspiracy to obstruct justice and making false statements, involve Trump’s alleged attempts to obstruct investigators.
Former President Donald Trump disembarks ‘Trump Force One’ at Miami International Airport in Miami, June 12, 2023.
Chandan Khanna/AFP via Getty Images
“If it had just been the fact that he had these things and turned them around, there never would have been a problem,” Akerman said. “But he had it and he went out of his way to make sure he kept it.”
The other charges against Trump are conspiracy to obstruct justice; the retention of a document related to national defense; corruptly concealing a document exalted for national defense; concealing a document in a federal investigation; conspiracy to conceal relevant information or evidence from law enforcement; and making false statements or statements to law enforcement.
The 31 offenses brought under the Espionage Act are punishable by up to 10 years in prison per offence. The obstruction charges carry a maximum penalty of 20 years each, and the penalty for making false statements carries a maximum penalty of five years in prison.
But experts said Trump, if convicted, would face lesser penalties.
“The expectation would be that the actual sentence would be much less,” Sarah Krissoff, a former New York federal prosecutor and current defense attorney, told ABC News.
There is no mention of the Presidential Registration Act in the indictment. Trump has falsely claimed that his withholding of the documents is protected by law, which is not a criminal statute.
Reason not mentioned
Prosecutors have not yet said why Trump took the documents and tried to keep them.
“The one thing we don’t get from this indictment is a picture of motive,” Akerman said. “Why did he do that? Why was he so determined to take those documents and do everything he could to keep them?”
That includes what Trump intended to do with them.
The indictment detailed two instances in which Trump allegedly shared classified information with others, once with a writer and editor and once with a representative of a political action committee.
A photo contained in the indictment released June 9, 2023, from the U.S. Southern District of Florida, shows boxes of potentially sensitive documents found at Mar-a-Lago in Palm Beach, Florida.
DOJ through the US Southern District of Florida
But prosecutors did not provide any evidence that they believe Trump leaked the information to a foreign government or other entity with the intent to harm the U.S., even though the special counsel had requested documents from the Organization Trump related to possible business with several foreign countries.
One possible explanation, Akerman said, was political “retribution.” He singled out an aspect of the indictment in which Trump allegedly shares a military plan to attack Iran, which he referred to as a document that “totally wins my case.” A transcript appears to suggest that Trump was angered by what he said were comments by Joint Chiefs Chairman Mark Milley that Trump wanted to attack.
“But motive is not an element of any of the crimes, so it’s not something they necessarily have to put in the indictment,” Akerman said.
Experts said more could be revealed at the trial.
“I think there’s more to uncovering what his motives were and what he did and how many documents are at stake,” O’Brien said. “I don’t think we know all the answers yet.”
