In an article titled "Fact check: Debunking Trump’s blizzard of dishonesty about his federal indictment", CNN and Daniel Dale published a flurry of misleading, dishonest, and disingenuous claims about Trump's comments regarding his indictment.
Trumps/NARA Dealings
Trump said he was working with NARA just as every resident has done. CNN claimed this is a lie.
These claims, too, are false in one way and highly misleading in another. It’s not true that Trump was negotiating “just as every other president has done”; no other ex-president since the Presidential Records Act took effect with President Ronald Reagan’s records in the 1980s has engaged in anything like Trump’s protracted post-presidency refusal to return official documents sought by NARA – which the Presidential Records Act requires to be in NARA’s custody and control the moment a president leaves office.
CNN is absolutely incorrect. It is not possible for millions of documents and terabytes of data to magically materialize at NARA's front door the second a President leaves office, that would defy the laws of physics.
Second, NARA themselves stated both the normal operations and they're expectation of the process in a statement in 2021 and again in November 2021.
“As NARA anticipated, the process of completing the transfer of Trump presidential records into NARA’s physical custody is still ongoing,” an agency spokesperson told Government Executive on Friday. “Necessary funding from [the Office of Management and Budget] was delayed for many weeks after the election, which caused delays in arranging for the transfer of the Trump presidential records into NARA's custody. Even though the transfer of these records is ongoing, NARA assumed legal custody of them on January 20, 2021, in accordance with the Presidential Records Act.”
CNN is also completely wrong about the Presidential Records Act. It does not require NARA to be in custody of these records the moment a president leaves office. That is not even close to what the act says. The act says NARA must assume responsibility.
(g)(1) Upon the conclusion of a President’s term of office, or if a President serves consecutive terms upon the conclusion of the last term, the Archivist of the United States shall assume responsibility for the custody, control, and preservation of, and access to, the Presidential records of that President. The Archivist shall have an affirmative duty to make such records available to the public as rapidly and completely as possible consistent with the provisions of this chapter.
This is a false claim by CNN.
Trump and the Presidential Records Act
CNN claims Trump is lying about abiding by the Presidential Records Act.
This is false. The Presidential Records Act says that all presidential records belong to the federal government the moment the president leaves office. By having official records at Mar-a-Lago after his presidency, Trump was in clear contravention of the law.
As explained in the previous false claim, this is absolutely false. (See Above) CNN in both cases is referencing assumptions from NARA's website and ignoring the actual law.
Documents and the FBI
CNN claims Trump is lying for offering an opinion and an assumption, which has no ability to be a lie.
Neither Trump nor any of his allies has provided one iota of evidence that anyone planted anything at Mar-a-Lago or amid the items seized at Mar-a-Lago. Despite Trump’s own claims, the former president’s legal team has never argued in a court filing that the FBI planted evidence – even when the legal team was given an explicit opportunity to do so after the FBI released an official inventory listing what it had found. And it is routine, not suspicious, for searches to be conducted without outside witnesses such as lawyers being in the room; lawyers for the person under investigation don’t have a right to watch.
Regardless of what CNN says, what Trump is referring to is the practice of the FBI allowing attorneys, under their supervision, to witness the seizure if possible. This is done to prevent the exact thing that Trump is doing. For some reason they declined to do this at Mar-A-Largo. Regardless, an opinion is not a lie or anything else but an opinion.
CNN makes a false claim.
Biden and the indictment
This claim is not supported by any evidence. There is no sign that Biden has been involved in the decision to criminally investigate or prosecute Trump; ordinary citizens on a Florida grand jury voted to indict Trump, and the prosecution is led by a special counsel, Jack Smith. Smith was appointed in November 2022 by Attorney General Merrick Garland, a Biden appointee, but that is clearly not proof that Biden was involved in the prosecution effort.
CNN's claim is absolutely false and demonstrably erroneous. They explain one way which doesn't tie Biden to the investigation/indictment while ignoring all other irrefutable evidence. In 2022 NARA, in a letter to Trump's attorney, explicitly stated that Biden had ordered Presidential records, that would normally be restricted, for the purpose of giving them to the Department of Justice to begin an investigation on former President Trump.
It simply doesn't get more evident than that. It's even signed by the acting Archivist and part of public record.
A toppled box at Mar-a-Lago
The suggestion that it’s even possible that the FBI might have turned over this box is nonsense. According to the indictment, the photo was taken in December 2021 by Trump aide and accused co-conspirator Walt Nauta, who the indictment says texted the photo to another Trump employee with the words “I opened the door and found this…” The FBI did not execute its search warrant at Mar-a-Lago until August 2022, eight months later, so it could not possibly have done the toppling.
Trump didn't suggest anything, he asked a question as a joke. Insinuating otherwise is simply disingenuous, however even if CNN was right and Trump was being serious, he still just asked a question and did not suggest anything at all.
The contents of the toppled box
Trump’s claim that nobody saw any “documents” in the photo of the toppled box is false. While the photo does show newspapers and pictures among the materials that had spilled onto the Mar-a-Lago floor, the photo also clearly shows other unidentified papers in the pile – one of which prosecutors allege was classified and labeled with markings making clear it was releasable only to the members of an intelligence alliance composed of the US and four other countries.
It appears that CNN is the dishonest one. Here is the image:
It's unclear what Daniel Dale is talking about, there is one folder/document that looks like a classified documents folder. However, looking closely, it's obvious to be two folders, one stacked on top of another.
Stacked Charges
Trump said they expanded 1 charge into 36 charges. CNN determined this was a lie.
These Trump remarks are both false and misleading. They are false because it’s not true that Trump was hit with the same “one charge” 36 times. Of the 37 charges in the federal indictment, 31 are for allegedly violating the same statute, against “willful retention of national defense information,” but each charge is for allegedly retaining a different classified document. The six other offenses are different: conspiracy to obstruct justice, withholding a document or record, corruptly concealing a document or record, concealing a document in a federal investigation, scheme to conceal, and making false statements and representations. And Trump’s remarks are misleading because, while it’s not clear what he may have heard a lawyer say on television, it is normal, not unprecedented, for defendants to face a separate charge for each classified document they are accused of illegally retaining.
What Trump is referring to is that the indictment is duplicitous. Which is the correct assessment from a legal standpoint. There was one action which would constitute a crime for any other American citizen. That is the action of willfully retaining classified material without clearance (if there is intent to injury).
CNN is presenting legal theory to make a false claim because they disagree with Trump's opinion, which is also legal theory, but an accurate statement. Trump did not say they couldn't do this, they can (although holding up in court is another story), he just said they did it.
This is a false claim by CNN.
Summary
We did not check the claims regarding Biden's documents, that is an ongoing investigation so neither Trump or CNN have enough information to accurately determine anything.
References:
- CNN Article (Fact Check)
- Archivist's assumed responsibility—18 USC §2203(g)(1)
- NARA quote regarding expected durations
- Archivist Letter (PDF)
- Image: Jon Cherry/New York Times
