Understanding the Federal Charges Against Trump for Mishandling Classified Documents

Learn what federal charges the former president faces in the United States of America v. Donald J. Trump.

By , Attorney · Mitchell Hamline School of Law

Updated: October 2, 2023

Former President Donald Trump is a defendant in four criminal cases—one in New York state court, one in Georgia state court, and two in federal court. The first case filed in federal court accuses the former president of mishandling classified documents after leaving the White House. In the second federal case, the government accuses the former president of conspiring to overturn the 2020 election results.

This article breaks down what's happening in the federal classified documents case against Trump. The former president faces 40 felony counts, including 32 counts of violating the Espionage Act. Trump claims he had a legal right to retain the documents. We'll continue to add information as the case of United States v. Donald J. Trump progresses.

What Is Trump Indicted for in the Classified Documents Case?

Federal prosecutors from the Department of Justice (DOJ) believe Trump committed federal crimes relating to the mishandling of classified documents, including national security documents. They also allege he conspired to hide classified documents and destroy security videos and made false representations to federal investigators. Here's a rundown of the allegations.

Trump Leaves the White House

When Trump left office in January 2021, he took a bunch of boxes containing government records with him to Florida. While it's not unusual for former presidents to do this, they can't take everything with them. Classified documents generally fall under this category, as they require special handling and secure storage and access. There's also a law called the "Presidential Records Act" that requires any records created or received by a president during their term to be turned over to the National Archives after leaving office. These documents are considered to be government property.

National Archives Requests Trump Return Documents

The National Archives made several requests to Trump requesting that the former president comply with the Presidential Records Act. Trump eventually turned over 15 boxes to the National Archives. Upon examining the records, the National Archives discovered numerous (almost 200) classified documents among the records and referred the matter to the FBI.

FBI Investigates Trump's Handling of Classified Documents

The FBI launched an investigation into Trump's handling of classified records. In response to a subpoena, Trump's lawyers agreed to turn over what they claimed and certified were the remaining classified documents. Federal authorities, however, had evidence suggesting that wasn't the case. The FBI got a warrant to search Trump's Mar-a-Lago property in Palm Beach, Florida. During the search, the FBI found thousands of pages of government records and over 100 classified documents.

Federal Grand Jury Indicts Trump

With this new evidence, federal prosecutors brought the case to a federal grand jury in Miami. The grand jury issued an indictment containing 37 counts against the former president, including alleged violations of the Espionage Act.

Federal Grand Jury Issues Superseding Indictment

Several weeks later, the grand jury added new charges and a new co-defendant in a superseding (replacement) indictment, bringing the total number of counts against Trump to 40. The new charges allege Trump wanted employees to delete Mar-a-Lago security camera videos to prevent federal investigators from viewing the footage.

Why Did the Classified Documents Case Go to a Federal Grand Jury?

Because this case involves violations of federal law, it's being handled in the federal court system (rather than in a state court). Prosecutors working on the case are U.S. Attorneys who work for the U.S. Department of Justice (DOJ).

In federal court, felony charges must be brought by a grand jury indictment. A grand jury consists of 16 to 23 people who are selected at random (it's similar to being called to jury duty for a trial but for a much different purpose). The grand jury's job is to review—in an unbiased manner—evidence presented by the prosecution and decide if enough evidence exists to charge the suspect with a crime. If the answer is yes, the grand jury issues an indictment. An indictment begins the federal criminal case and gives notice of the criminal charges pending against the defendant.

In Trump's case, there's been an indictment and a superseding indictment. To add charges or co-defendants to a case, the prosecutor cannot simply amend (change) the indictment. Instead, the grand jury must issue a superseding indictment to replace the original one.

What Happened at Trump's Arraignment in the Classified Documents Case?

Trump was arraigned on June 13th at a federal courthouse in Miami. An arraignment is typically a defendant's first time going before the court—it represents the formal start of the criminal court process. In a typical arraignment, the judge will:

  • inform the defendant of the charges, and
  • take the defendant's plea.

This was the case at Trump's arraignment. The judge informed Trump of the charges issued by the grand jury, and Trump pleaded not guilty to the original 37 counts. The judge released Trump without bail and didn't place any travel restrictions on him. However, the judge ordered a special condition that prohibits Trump from communicating with co-defendants and potential witnesses about the case.

What Are the Charges Against Trump in the Federal Classified Documents Case?

In the superseding indictment (dated July 27, 2023), the federal grand jury indicted Trump on 40 counts, including unlawful retention of national defense information, conspiracy to withhold information from a federal grand jury and federal investigators, conspiracy to obstruct justice, and making false statements to the FBI.

Counts 1 to 32: Willful Retention of National Defense Information

Counts 1 to 32 against Trump allege violations of the Espionage Act, which makes it a crime to unlawfully possess or retain documents containing national defense information.

The indictment identifies 32 allegedly top-secret and secret national defense documents that Trump refused to hand over to government authorities. The documents include intelligence briefings on foreign countries, U.S. nuclear weaponry, and U.S. and foreign government military activities and capabilities.

Each document represents a separate criminal count, and each count carries a sentence of up to 10 years in prison.

(18 U.S.C. § 793(e).)

Counts 33 to 37, 40, and 41: Conspiring to Conceal and Withhold Documents from the FBI and a Federal Grand Jury

These counts allege that Trump, his personal aide, Walt Nauta, and his Mar-a-Lago property manager, Carlos De Oliveira conspired to conceal, destroy, and withhold documents and video footage from the FBI and the federal grand jury.

The indictment alleges their conspiracy involved:

  • secretly moving boxes of documents so that Trump's attorneys wouldn't find them and turn them over to the federal grand jury
  • making false and misleading statements to the FBI about classified documents in his possession
  • attempting to persuade Trump's lawyer to withhold evidence from federal authorities, and
  • attempting to persuade a Trump employee to delete security camera footage.

Trump is listed as a defendant in all of the above counts. Nauta faces seven counts and De Oliveira faces three counts for the alleged conspiracy. These counts carry maximum felony penalties ranging from 5 to 20 years in prison.

(18 U.S.C. §§ 1001, 1512, 1519.)

Counts 38, 39, and 42: Making False Statements to the FBI

These counts apply to the individual defendants and allege that each made false statements to the FBI, which carries a maximum penalty of 5 years in federal prison.

Count 38 applies to Trump and alleges that his actions in hiding boxes caused his attorney to submit a false certification to the FBI.

Count 39 applies to Nauta and alleges that he provide false information to the FBI in a voluntary interview. Count 42 alleges similar charges against De Oliveira.

(18 U.S.C. § 1001.)

Could Trump End Up in Federal Prison for Mishandling Classified Documents?

If convicted on any of the counts, it's possible Trump could face time behind bars in federal prison. Federal prosecutors have 40 counts against the former president and only need one to stick. The charges carry maximum felony penalties ranging from 5 to 20 years in prison, although, it would be up to a judge to decide the actual sentence to be handed down.

Federal judges generally refer to the federal sentencing guidelines when doling out a sentence. For the charges Trump faces, prison time is certainly on the table. But the judge would be faced with several extraordinary circumstances in this case, including a defendant with a Secret Service detail and a presidential campaign. There's also the fact that Trump would be heading to prison when he's nearly 80 years old, as well as the possibility that he's already serving time if convicted in the New York case.

What Happens Next in the Classified Documents Case Against Trump?

At this early stage of the criminal proceedings, most of the work will take place behind the scenes by counsel for the government and Trump. Counsel will likely engage in criminal discovery (sharing of evidence between parties) and may start filing pretrial motions to contest various aspects of the case.

The government requested a protective order to limit Trump's access to, and discussion of, documents in the case to prevent disclosure of sensitive national security information. The judge issued an order that prohibits Trump from disclosing classified information to unauthorized persons. It also requires that Trump and his defense team discuss and review classified information only in a court-approved sensitive compartmented information facility (SCIF).