The Trump Classified Documents Indictment, Annotated

The Justice Department on Friday unveiled an indictment charging former President Donald J. Trump with 37 criminal counts. They relate to Mr. Trump’s hoarding of sensitive government documents after he left office and his refusal to return them, even after being subpoenaed for all remaining records in his possession that were marked as classified.

31 counts

Related to withholding national defense information

One count against Mr. Trump for each document he was alleged to have kept in his possession.

5 counts

Related to concealing possession of classified documents

Among them are counts of conspiracy to obstruct justice and withholding documents and records, levied against both Mr. Trump and an aide, Walt Nauta.

2 counts

False statements

Related to statements to the F.B.I. by Mr. Trump and an aide, Walt Nauta.

49 pages

A list of charges against Donald Trump.

The New York Times annotated the indictment.

Download the original PDF.

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1 Although law enforcement officials conducted most of the investigation using a grand jury in Washington, the special counsel chose to bring the case in Florida. That avoided a potential legal fight over venue, but it carried the risk that the case would be assigned to Judge Aileen M. Cannon, who was appointed by former President Donald J. Trump and who has issued a series of rulings unusually favorable to him. Judge Cannon will indeed take the case, according to people familiar with the matter.

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2 The indictment lays out the potential danger of the classified information in the documents Mr. Trump kept at his Mar-a-Lago estate.

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3 As has been recently reported, the special counsel, Jack Smith, has apparently obtained an audio recording of Mr. Trump acknowledging that he knew a document in his possession was still classified. That stands at odds with Mr. Trump’s public claims that he had declassified all the materials he took from the Oval Office. (No credible evidence has emerged to support that claim, which his lawyers had declined to repeat in court, where there are professional consequences for lying.)

4 This section of the indictment outlines another incident in which Mr. Trump is accused of having shown a classified document to someone while acknowledging that it was still secret. It does not refer to a recording, raising the possibility that the unidentified representative of his political action committee provided this account to investigators.

5 The indictment lays out five specific actions by Mr. Trump that it says were illegal obstruction.

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6 Mr. Trump’s aide Walt Nauta was also indicted and is described in this filing as a co-conspirator in the crimes.

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7 The indictment emphasizes how many people were wandering in and out of Mr. Trump’s estate in Florida, implying that improperly storing classified documents there risked their disclosure.

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8 The indictment uses Mr. Trump’s words from the 2016 campaign, attacking his rival, Hillary Clinton, over her use of a private email server while she was secretary of state, to show he understood the importance of protecting classified information.

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9 The indictment includes a photograph showing that some of the boxes Mr. Trump had taken from the White House were stored for a time in a ballroom in Mar-a-Lago where guests had access.

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10 The indictment includes a photograph by Mr. Nauta that shows boxes spilling classified documents onto the floor of a storage room.

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11 The existence of this recording came to public light this month. Mr. Trump claimed the document was written by Gen. Mark A. Milley, the chairman of the Joint Chiefs of Staff.

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12 In this recording, Mr. Trump acknowledged that he had a document that was still classified and was showing it to three other people who did not have security clearances and were not authorized to see it.

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13 The indictment again uses Mr. Trump’s own words to condemn him.

14 Throughout the investigation, reporting suggested that investigators were examining the movement of boxes in and out of the storage room at Mar-a-Lago after Mr. Trump knew the government wanted the documents back.

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15 The indictment accuses Mr. Nauta of lying to the F.B.I. about moving the boxes.

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16 The details of this description of Mr. Nauta moving a box from the storage room, after a subpoena in May requested the return of the documents, most likely come from Mar-a-Lago security camera footage. Investigators also subpoenaed that footage.

17 Trump Attorney 1 remains unnamed in the document, but the designation appears to refer to Evan Corcoran, who played a key role in handling Mr. Trump’s responses to the government over its repeated requests for the return of the documents. Mr. Corcoran made a lengthy and detailed voice memo about his conversations with Mr. Trump. Mr. Smith fought a legal battle to obtain that material, and a federal judge ruled that the so-called crime-fraud exception to attorney-client privilege applied.

18 The indictment inserts this anecdote, apparently about personal emails on Mrs. Clinton’s private server that her lawyer had destroyed, without comment. The insinuation may be that Mr. Trump was implying, without directly asking, his lawyer to destroy classified documents he found problematic.

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19 The special counsel appears to be connecting phone records and surveillance footage to show a link between Mr. Trump’s and Mr. Nauta’s actions.

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20 The indictment suggests that Mr. Trump and Mr. Nauta hid boxes of documents from Mr. Corcoran, who would soon tell the Justice Department that there were no other files responsive to the subpoena — which was not true.

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21 Here is another instance presented as Mr. Trump asking, without directly asking, for Mr. Corcoran to destroy classified documents rather than turn them over to the government.

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22 The lawyer who signed a statement stating that a diligent search had been conducted and that all known classified information had been returned to the government was Christina Bobb, who was serving as the formal custodian of records for Mr. Trump’s office. The indictment makes clear she did not know the statements in the attestation were false.

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24 Trump has been charged with violating a provision of the Espionage Act, a 1917 law that makes it a crime to hold onto secret government documents without authorization. This provision was enacted before the advent of the modern classification system, and it does not require prosecutors to prove that the secret documents had been deemed classified. Trump has claimed that he declassified everything that he took from the White House, although no credible evidence has emerged to support that claim. The penalty is up to 10 years per offense.

25 Only Mr. Trump – not Mr. Nauta – is charged with violations of the Espionage Act.

26 The indictment lists 31 documents, each of which is the subject of a separate count of Espionage Act violation.

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27 Mr. Trump has been charged with violating a law that makes it a crime to corruptly impede an official proceeding. The penalty is up to 20 years per offense.

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28 Mr. Trump has been charged with violating a law that makes it a crime to conceal records to obstruct an official effort. The penalty is up to 20 years per offense.

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29 Mr. Trump and Mr. Nauta have each been charged with one count of violating a law that makes it a crime to issue false statements to federal investigators. Although Trump said little directly to law enforcement officials — instead communicating through his lawyers — people can be held liable for a crime if they induce other people to commit the action. The penalty is up to five years per offense.

30 Trump Attorney 3 appears to refer to Ms. Bobb. Mr. Trump is charged as the principal for the false statements made to the government in Ms. Bobb’s certification because he is accused of having induced them.

Malwarebytes may not be allowed to label rival's app as 'potentially unwanted'

The US Ninth Circuit Court of Appeals last week ruled that Enigma Software Group can pursue its long standing complaint against rival security firm Malwarebytes for classifying its software as "potentially unwanted programs" or PUPs.…

Florida-based Enigma has been trying to hold Malwarebytes accountable for blocking its programs since 2017 when the firm initially sued Malwarebytes for tortious interference, violation of New York business law, and false advertising under the Lanham Act.

This suit was filed in response to antivirus maker Malwarebytes labeling Enigma's anti-spyware tool a PUP – soft, supposedly legally safe industry jargon for malware or almost-malware. That labeling caused Malwarebytes' software to automatically quarantine and remove Enigma's Spyhunter from PCs. Enigma objected to the classification.

A district court judge hearing the complaint in California dismissed the claim, citing the 2009 Zango v. Kaspersky decision, which affirmed that security firms have some latitude to classify software as harmful. The judge dismissed the case on Section 230(c)(2)(B) grounds, which exempts interactive service providers from liability for content moderation decisions.

But Enigma appealed and the Ninth Circuit in 2019 reversed the district court's decision, creating in the process an anticompetitive animus exception to Section 230 of the Communications Decency Act that generally shields online service providers.

That appellate ruling meant that Malwarebytes may be liable for characterizing Enigma's software as PUPs if it's deemed to be a competitor – a decision that has the potential to discourage security companies from characterizing software as harmful.

Malwarebytes, supported by advocacy groups and other security outfits, asked the Supreme Court to review the case but was denied in 2020.

In 2021, the California district court, having been told by the Ninth Circuit to reconsider Enigma's lawsuit, again dismissed the complaint. So far, Malwarebytes has been generally winning, and Enigma losing.

At the time, Malwarebytes' outside counsel, Moez Kaba of Hueston Hennigan, celebrated the judgment by noting the district court’s ruling "validates the right of cybersecurity firms to identify potentially unwanted programs and recognizes the rights of users to choose whether or not to enable those programs on their devices."

But Malwarebytes' victory lap was premature. Enigma appealed again, and the Ninth Circuit last week revived the case [PDF], except for Enigma's claim of tortious interference with contractual relations. The case now heads back to the district court, subject to the appeals court's direction that New York law also needs to be considered alongside the false advertising claim.

"In the context of this case, we conclude that when a company in the computer security business describes a competitor’s software as 'malicious' and a 'threat' to a customer’s computer, that is more a statement of objective fact than a non-actionable opinion," the appeals court decision reads. "It is potentially actionable under the Lanham Act provided Enigma plausibly alleges the other elements of a false advertising claim."

Enigma in a statement cited the appeals court's rejection of a First Amendment free speech defense: "Enigma has alleged that Malwarebytes disparaged Enigma's products for commercial advantage by making misleading statements of fact. If those allegations are true, and at this state we must presume that they are, trying to wrap them in a First Amendment flag does not make them any less offensive or any less actionable."

Eric Goldman, professor at Santa Clara University School of Law, told The Register in an email, "This case is like a wrecking ball for internet law."

"The Ninth Circuit already damaged Section 230 by creating an exception to its coverage (for 'anticompetitive animus') that no one understands and has not benefited anyone. Then, when the Supreme Court denied the appeal, Justice Thomas wrote a gratuitous error-riddled statement about Section 230 that spurred many regulators to pursue their censorship agendas. Now, the Ninth Circuit has redefined the standards for what constitutes a statement of 'fact' as opposed to an opinion in a way that hurts businesses in the anti-threat software space and well beyond."

Goldman said the majority's decision to treat the terms "malicious" and "threats" as simple true or false classifications doesn't fit with the way the security industry actually works. And by doing so, he argues, the court has made disputes about classifications more likely and has raised the costs and risks of making such classifications.

"If each classification could similarly support weaponization in court by businesses unhappy with the classifications, then anti-threat software vendors will avoid the financial and legal risks by lowering their cybersecurity standards or exiting the industry," said Goldman. "That puts all of us at greater risk."

In his dissent from the majority, Ninth Circuit Judge Patrick Bumatay took a similar position: "By treating these terms as actionable statements of fact under the Lanham Act, our court sends a chilling message to cybersecurity companies – civil liability may now attach if a court later disagrees with your classification of a program as 'malware.'"

Goldman said he believes the case is a good candidate for an en banc review by the Ninth Circuit, which involves all of the judges instead of just three of them.

Malwarebytes did not immediately respond to a request for comment. ®

Computer Misuse Act

The Computer Misuse Act attempts to discourage people from using computers for illegal purposes. There are three separate parts to the Act:

The maximum punishment for breaking this law is a £5000 fine or several years’ imprisonment.

However, one key part of the law is that intent must be proved. If a computer is not well protected, someone could accidentally access its data without meaning to. Someone might also accidentally change a document without realising it. For anyone to be found guilty, it has to be shown that they intentionally accessed and changed data.

In order to make a successful prosecution under the Computer Misuse Act, the prosecutor must be able to prove intent.