In our first article on Special Counsel Jack Smith’s June 2023 Indictment of former President Donald Trump, we discussed the illegal search of Mar A Lago, and the necessity for the suppression of all evidence seized in the raid as illegally obtained “fruit of the poisonous tree.” In our second, we examined the interaction between the Espionage Act, and the Presidential Records Act, as well as the potential defense that the former President had legal possession of the allegedly classified documents recovered during that illegal search and seizure. In our third article, we reviewed the very serious possibility that Special Counsel Jack Smith and his team have engaged in a pattern of violating the attorney-client privilege rights of the accused, including former President Trump.
Today, we consider the new allegations added to the original indictment on July 27, 2023, when Special Counsel Jack Smith filed a Superseding Indictment against Trump, his co-defendant and Aide, Walter Nauta, and now adding Carlos De Oliveira, the Property Manager for Mar A Lago. The Superseding Indictment can be viewed here.
The first question many people may have, is whether or not the Special Counsel can provide additional allegations and add charges at this stage. The answer is – he sure can. As described by Washington DC lawyers Burnham & Gorokhov, “(t)echnically speaking, an indictment cannot be ‘amended’ once it has been returned by the grand jury, because that would violate the defendant’s Fifth Amendment right to be indicted by a grand jury. However, it is also true that prosecutors do frequently alter the crimes charged, or even add new charges, during the course of a criminal proceeding. Prosecutors accomplish this by filing what is called a ‘superseding’ indictment. A superseding indictment is just like any other indictment, and it must be obtained the same way as the original indictment—through a grand jury. The superseding indictment can include different charges, new charges, or add new defendants. Once the grand jury returns a superseding indictment, the superseding indictment replaces (supersedes) the original indictment.”
However, as with so many aspects of Special Counsel Jack Smith’s investigation and indictment of the former President, a question of legal propriety and fair dealing has arisen regarding the Superseding Indictment. According to the Washington Post, “(Florida Federal) Judge Aileen M. Cannon..asked federal prosecutors to explain the use of grand juries in Florida and Washington in the classified documents case against Donald Trump even though charges were filed in South Florida…Cannon…posed the question in a court filing…and told federal prosecutors to respond…’The response shall address the legal propriety of using an out-of-district grand jury proceeding to continue to investigate and/or to seek post-indictment hearings on matters pertinent to the instant indicted matter in this district,’ Cannon wrote.”
Apparently, “(f)or many months, Justice Department prosecutors had questioned witnesses in the Florida case before a federal grand jury in Washington. The secret proceedings yielded much of the evidence at the crux of the case. But in May, the grand jury activity appeared to continue at a federal courthouse in Miami. Ultimately, prosecutors filed charges in a West Palm Beach courthouse — a courthouse in the same district as Miami and the area where Mar-a-Lago is located…Prosecutors said in a court filing…that they continued to use the grand jury in Washington after they initially charged Trump in June to investigate alleged instances of obstructing the investigation..’The grand jury in this district and a grand jury in the District of Columbia continued to investigate further obstructive activity, and a superseding indictment was returned on July 27, 2023,’ prosecutors wrote in the filing.”
In other words, “Smith’s team used a grand jury in Washington to continue gathering evidence after it had already indicted Trump in Florida using a grand jury in Miami.” Is this unusual? Smith is a Special Counsel, and has jurisdiction to bring charges against the former President in any jurisdiction in which criminality may have occurred. Thus, he can use more than one Grand Jury in more than one location to investigate charges against Donald Trump.
What is unusual though is the use of a Grand Jury in Washington to continue investigating crimes that allegedly occurred in Florida, and are the subject of an indictment brought by another Grand Jury in that state. As described by Yahoo! News, “(t)he involvement of multiple grand juries is an issue raised by Trump’s lawyers as a potential line of attack against the prosecution because there are rules that limit how and where the government can use them. Cannon’s order puts Smith on the spot early on to explain the process.”
Turning to the new allegations, it should be noted that the Superseding Indictment corrects a deficiency in the original indictment. As we observed in our article of July 12, 2023, Trump was charged with possession of 31 classified documents (out of the 102 allegedly classified documents recovered during the raid on Mar A Lago). The original indictment also described two conversations that Trump had with persons who did not have security clearances, in which he is alleged to have brandished classified documents. One was with a writer, publisher and several members of his staff regarding a “Plan of Attack” prepared for Trump by the Department of Defense; the other with a representative of his political action committee regarding a map related to a military operation. We noted then that “a review of the 31 documents which form the basis for each individual count does not clarify which documents are the basis for the two disclosures described…(n)ot a single one of the documents is described as either a ‘Plan’ or a ‘Map.'”
Perhaps Jack Smith read our article; the July 27 Superseding Indictment has added a 32nd document described as the “Plan of Attack” referenced in the alleged disclosure to the writer and publisher. To date, however, the map described in the second conversation appears to remain unavailable.
Most of the latest allegations involve the new defendant, Carlos De Oliveira. ABC News describes the timeline of his involvement as follows; “June 22, 2022 – After observing security footage near the storage room in which classified information was found, the Justice Department sends Trump’s lawyers a draft grand jury subpoena for some security footage from cameras near the storage room at Mar-a-Lago…June 23, 2022 – Trump and De Oliveira speak on the phone for 24 minutes…June 24, 2022 – Nauta is told by a coworker that Trump wants to see him. Less than two hours later, Nauta changes his travel schedule to go to Palm Beach, Florida… Nauta and De Oliveira are also in touch that day with each other and an unnamed employee who is identified by Smith’s office as the director of information technology at Mar-a-Lago…June 25, 2022 – De Oliveira shares with (an unindetified) Mar-a-Lago employee that Nauta wanted to speak with Mar-a-Lago’s director of IT to see ‘how long camera footage was stored’…Shortly after arriving in Palm Beach, Florida, that evening, Nauta meets with De Oliveira at Mar-a-Lago, where they go to the security booth where surveillance video is displayed on monitors…June 27, 2022 – De Oliveira walks to the IT office where the director of information technology is working…De Oliveira asks how many days the server retains footage, to which the IT director responds he believes it is ‘approximately 45 days’…De Oliveira says ‘the boss’ wants the server deleted, to which the IT director says said he wouldn’t know how to do that and does not believe he has the rights to do that. The IT director tells De Oliveira that De Oliveira would need to reach out to another employee who is supervisor of security for Trump’s business organization… De Oliveira (then) texts Nauta…De Oliveira walks through bushes along the northern edge of the Mar-a-Lago property to meet Nauta on the adjacent property….Trump (then) calls De Oliveira and they speak for approximately three and a half minutes.”
Based upon these allegations, Trump, Nauta and De Oliveira are all charged with “Conspiracy to Obstruct Justice,” among other charges. The Superseding Indictment alleges the three “did knowingly combine, conspire, confederate, and agree with each other…to engage in misleading conduct toward another person and corruptly persuade another person to withhold a record, document, and other object from an official proceeding,” the purpose being “to keep classified documents (Trump) had taken with him from the White House and to hide and conceal them from a federal grand jury.”
These activities sound quite nefarious as they are laid out in the Superseding Indictment. But upon examination of the details, the indictment fails to specify that a criminal conspiracy actually occurred. Instead, the allegations contained in this Indictment lead to a series of questions;
– At no time is the substance of any calls between Trump, Nauta and De Oliveira revealed. What did they talk about? While Smith is relying upon the timing of the calls, which would appear to occur just before or after certain actions are taken, there is no indication of how many calls occur between these parties in a given day, and what the conversation between these parties consisted of.
– Who is “the boss?” We’re supposed to assume it’s Trump, but to De Oliveira, Nauta could have been considered his “boss.”
– De Oliveira asks about deleting Security footage from the camera, and is told to speak with the security supervisor. Did De Oliveira then go and speak with that individual? Did Nauta? If not, why not? The Indictment is silent on these issues.
We can answer one additional potential question – was any Security footage deleted? According to the Superseding Indictment, “(i)n July 2022, the FBI and grand jury obtained and reviewed surveillance video from The Mar-a-Lago Club.” Trump himself states that “Mar-a-Lago security tapes were not deleted…(t)hey were voluntarily handed over to…Jack Smith. We did not even go to court to stop them from getting these tapes. I never told anybody to delete them.”
Thus, it is clear that no Security footage was ever erased.
Since Trump, Nauta and De Oliveira are charged with Conspiracy, the footage need not have been actually destroyed for the crime to have occurred. It’s the agreement between the three of them to attempt to keep evidence from the Grand Jury that would be the crime. “Legally, a Conspiracy exists when 2 or more persons join together and form an agreement to violate the law, and then act on that agreement…only if the government can prove that those involved entered into some agreement to commit the crime and that there was some overt act committed after the agreement was reached to help it succeed. Many times this ‘agreement’ will be proven by circumstantial evidence. For example, if it can be shown that a participant is receiving some direct benefit from the illegal activity, this is a good indication that the person is a part of the Conspiracy.”
It is unclear, at best, what benefit any of these three received from this alleged conspiracy. Further, as noted above, while circumstantial evidence is admissible, unless either Nauta or De Oliveira, or even Trump himself, tells the trial jury whether or not instructions were given to erase the Security footage, that jury can only speculate on what all of these phone calls and meetings have to do with De Oliveira’s question to the IT Director.
But more likely than not, the indictment of Nauta and De Oliveira are intended to force them to testify against Trump in exchange for a plea deal. Before that happens, however, Special Counsel Smith has to provide the Court with legally sufficient allegations of fact – not a series of events that may or not be connected.
Under Fed. R. Crim. P. 7(c)(1) “The indictment or the information shall be a plain, concise and definite written statement of the essential facts constituting the offense charged.” As you read the allegations made against Donald Trump, Walter Nauta and Carlos De Oliveira in the Superseding Indictment, ask yourself this one crucial question – do you think these allegations sufficiently state a “plain, concise and definite” case of criminal conspiracy?
While you are thinking about the answer to that question, ask yourself another; Doesn’t this prosecution seem like a lot of time and effort to recover 102 documents from someone who has a legitimate argument that he had a legal right to possess those documents?
Judge John Wilson (ret.) served on the bench in NYC