New Charges, Same Indictment

What’s new in the superseding indictment of Donald Trump, and what not to expect in response from his Republican rivals.

By and
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Pages from the unsealed federal indictment of former U.S. President Donald Trump. (Photo Illustration by Drew Angerer/Getty Images)

Welcome to a special edition of The Collision. While it wasn’t the indictment we thought was coming down this week, the superseding indictment that came out of Florida late Thursday afternoon is worth a brief walkthrough to see what we learned.

Remember: Donald Trump had previously been charged with 31 counts of unlawfully retaining national security information and six counts of obstruction-related charges. A superseding indictment just means that this week’s indictment replaces the previous one, usually by adding new charges or new defendants. In this case, it’s both.

Question Time

Mike—the non-lawyer around here—had some questions about what this all means on the legal side, and Sarah happily obliged.

What was added? Carlos De Oliveira, an employee at Mar-a-Lago, was added as a defendant on obstruction charges. Two new charges were added against Trump as well—an additional charge for willfully retaining national security information related to a classified document about Iran, and another obstruction-related charge alleging Trump attempted to have staff delete security footage in June 2022 after receiving the initial subpoena for the footage. 

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  1. Avatar photo
    John A. Daly

    Really like the Q&A format here.

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  2. Avatar photo
    Probably Wrong

    “The grand jury in Atlanta could indict Trump next month, and the evidence already available to the public includes clear and unambiguous audio of Trump demanding Georgia officials change votes to alter the outcome of the 2020 presidential election there.“

    So, I’m curious about this - ‘clear and unambiguous’ would be nice, but is it? I’ve always understood that call as Trump interfering because he was delusional, not willful. His argument to Kemp seemed to be “we only need you to find ~11,000 of the many trillions of very real Trump votes that are most assuredly out there in Georgia, and if you are lackadaisical in your pursuit of a fair and honest election, there could be legal consequences for your sloppiness.”

    Now obviously this is still not okay to say, but Trump has spent the years since acting like a man who genuinely believes (and cannot be told otherwise) that he won the 2020 election. So then can he not invoke the Costanza Defense of “it’s not a lie if you believe it”? Sure, maybe no reasonable person would, but this is Trump.

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  3. Russell J

    The SCIF request is just one of the amazing things for anyone slightly familiar with govt security procedures.

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  4. Chipwatkins

    Interesting story on Trump's Save America PAC paying legal fees for lawyers representing Trump employees. Worth a discussion of potential ethical conflicts?

    https://www.washingtonpost.com/national-security/2023/07/29/trump-lawyers-pac-deoliveira-loyal/

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  5. Avatar photo
    Dave Conant - MO

    What is the concern about clearance for the defense legal team? The discussion is about whether or not the failed insurrectionist illegally retained classified documents and all anyone needs to see to establish that is the markings on whatever documents are presented, not the body of information contained in them.

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    1. Marc Whipple

      In theory, the defense attorneys could argue the need to review the contents to see if the documents were overclassified, or even whether some of the documents were declassified by Trump when he was POTUS. Given reports of the general contents (such as Iran war plans and national security vulnerabilities), I agree such arguments seem frivolous. Maybe the defense counsel is hoping for the judge to rule against them, and that ruling could be grounds for an appeal if Trump is convicted.

      Obviously, I am just speculating. Overall, I agree with you.

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      1. Avatar photo
        Bayesian

        Whether or not some of the documents were overclassified (which strikes me as likely based on my time in the military industrial complex, including with SCI clearances) does not seem relevant to the fact that they *were* in fact classified at a given level (and sometimes compartment) at the time.

        Similarly, whether or not they were declassified before Trump left office is determinable from other records, some of which records do require clearances to see based on my current understanding and fading memories :) but none of which require counsel to see the content of the documents.

        I think you are right that Trump's lawyers are generally trying for any delay/obfuscation tactic they can - I honestly have no idea where the fairly closely watched Judge Cannon falls on that (e.g. would she want to give Trump an additional grounds for appeal)?

        IANAL, but for reasons that I do not fully understand, a surprising number of cases (AFAIK none involving former presidents/Republican party majority owners) have resulted in defense (and I assume prosecution) counsel being cleared into pretty sensitive compartments.

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        1. Marc Whipple

          Great explanation! Thanks for the additional information based on inside knowledge!

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          1. Avatar photo
            Bayesian

            It's not insider knowledge other than my having been in that world, including the case of one program that was migrated from a Special Access Program aka SAP to [ordinary] classified. The redacted photos I have seen of some of Trump's "working spaces" only show the cover sheets, which indicate that some of the documents are TS/SCI. The now public subpoena includes a (probably non-exhaustive) list of the markings.

            If you want more, https://www.electrospaces.net/2022/09/the-highly-classified-documents-found.html contains a fair summary with only a couple of what I think are pretty minor errors (they might _not_ be errors - I was read out in 1998 and things maybe have changed).

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      2. Avatar photo
        Dave Conant - MO

        It's going to be interesting, no doubt about that. The level of creativity is going to spike too, although as you say, much of it may be specious and hopeful rather than rationally based.

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  6. Raincheck

    Thank you.

    I have drafted a statement for his opponent’s’ campaigns. “The former President faces charges of willfully mishandling secret government information and obstructing justice. These charges are serious, and continue to grow in seriousness as new charges are added. We fully support President Trump in this matter and hope to lose an election to him soon.”

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  7. Avatar photo
    JohnF

    Does the defense have to file some sort of statement of defense? If so, when are we likely to see that?

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  8. Stephen Dawe

    This was an excellent piece on what’s new in the recent charges, well done.

    One blip - did anyone else find themselves cringing at the line, “The FBI doesn’t like to be lied to”?

    I wish it weren’t so, but I did.

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    1. Marc Whipple

      Why the cringing?

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  9. Avatar photo
    Patterico

    “Will this delay the trial? Unlikely.”

    Seems like the addition of a new defendant could cause delays. New counsel has to obtain the discovery and get up to speed, and the other lawyers have a head start.

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  10. Dave Thatcher

    I am a lawyer though not a criminal lawyer, I’m an M&A lawyer, but my gut thinks you charge this new guy because you can flip him. Any reality to that?

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