The NARA-Lago Investigation Now Has a Key Witness

Image courtesy of The Washington Post

We’ve known for some time, based on public court filings, that the Department of Justice supported its warrant for the search and recovery of government documents from Mar-a-Lago in part on information it obtained from interviewing witnesses Who were working at the property. A report on Wednesday by The Washington Post now has zeroed in on an individual who, according to sources familiar with the investigation, told the FBI that he personally moved boxes out of the storage room at Mar-a-Lago to the former president’s residence at the direct request of Donald Trump.

Why does this matter? After all, we’ve known that boxes were moved around and that it was caught on tape already. To understand why this puzzle piece is important, it’s helpful to review the relevant timeline and then assess the impact of this new information on the likelihood of an indictment.

The Timeline

After Donald Trump left office in January of 2021, the National Archives formally notified him in May of 2021 that it was seeking some two dozen boxes of original presidential records that had not yet been returned. This began a long period of back and forth of demands and responses until NARA finally received some 15 boxes of documents from Trump in February of 2022. 

At that time, Trump asked one of his attorneys, a poor fellow named Alex Cannon who had been representing Trump on the matter of the NARA request, to inform the Archivist that all requested materials had been returned. Cannon declined to do so after many others in Trump’s circle advised him against making such a statement, because ultimately he was not personally confident that it was true.

Archivists realized after receiving the 15 boxes that there were classified documents among others within them, and it made a criminal referral to the Department of Justice. Because the removal of highly sensitive government documents was of grave concern to the Department, a grand jury was convened, and it promptly issued a subpoena to Trump in May of 2022 for any classified documents remaining in Mar-a-Lago.

Here’s where the timing matters. After receiving the subpoena from the grand jury in May, according to this witness, whom The New York Times separately identified as an employee named Walt Nauta, Trump instructed people to move boxes to his residence on the property. Nauta was one of those who personally moved boxes, a fact corroborated by the footage subpoenaed by the Department from the Trump Organization’s security records.

In other words, Trump told people who were not his lawyers to move documents, which we later learned included many classified documents, out of the Mar-a-Lago storage room and to his private residence before his lawyers got a chance to conduct a search for responsive, classified documents.

The Importance of the Instruction to Nauta

To make a case that the former president violated laws, such as the Espionage Act, and that he obstructed justice, Trump’s state of mind will be key. To be found guilty, he has to have acted knowingly and willfully, and not by accident or via some kind of Trumpian clueless whimsy. By giving the instruction personally to someone like Nauta (and likely other witnesses), Trump has revealed that he knew there were responsive documents in his private residence—ones that his lawyers might miss unless they were allowed in. When he failed to turn those over, he also knew he was violating the law. He may not have agreed with that law, but he exhibited consciousness of his guilt by seeking to thwart it.

While it may seem bizarre to consider that Trump could claim he personally didn’t know what was in his own residence, this is Trump we’re talking about. He will test every defense available to find the one or few that work, or otherwise create so much smoke that prosecutors throw up their hands or at least one juror refuses to convict him. On the other hand, if Nauta testifies that Trump told him to go get the boxes—and not just any boxes, but certain boxes with certain classified documents in them—that ought to close off that escape route for Trump.

Trump will also have a hard time arguing, as he has in his public missives but notably not in court, that the FBI “planted” certain classified documents if Nauta and others testify that they were told to and did in fact move them from the storage room at Mar-a-Lago to Trump’s residence at the resort property. After all, the documents can’t have been planted if they were already there and being moved around. Further, Trump will also have a much harder time arguing that he wasn’t aware that the government wanted these particular documents back, even though he had allegedly “declassified” them, because he proactively had them moved to his residence only after receiving the grand jury subpoena, presumptively to prevent their being reviewed and returned.

As I wrote about earlier, one of Trump’s attorneys named Christina Bobb is in hot water for having attested in writing that, to the best of her knowledge, there were no more documents responsive to the grand jury subpoena once she and the Trump team turned over a Red Weld of more classified documents to Jay Bratt of the FBI in June of this year. That signed statement turned out to be false, and it will be interesting to know whether she or other attorneys such as Evan Corcoran were permitted to search the residence for responsive documents or whether Trump kept them out and said he didn’t have any more in there. In the first scenario, the lawyers are complicit in a conspiracy to obstruct justice, and in the second scenario they throw their boss under the bus and pin all the knowledge of the obstruction on him.

It should be noted, Walt Nauta isn’t a perfect witness. In his first interview, he reportedly declined ever having handled sensitive documents or that the boxes might contain such documents. But as the evidence mounted, Nauta’s story changed completely. By the time he was interviewed a second time, he told investigators about moving boxes at Trump’s request. The FBI now has some leverage on him for having made false statements initially, but that also could be used by Trump’s defense team as evidence that this witness is unreliable. The problem with that approach is that there are probably multiple other witnesses, all caught on security footage, who have spoken to the FBI. If so, Nauta won’t be the only person testifying that Trump had them move boxes containing classified materials to his residence from the storage room after the subpoena landed.

The FBI now has both witness testimony and corroborating physical evidence that demonstrate knowledge and intent by the former president to possess highly sensitive, national defense information and to prevent or hinder the government from recovering it. In the estimation of many legal experts, that ups the chances considerably that an indictment will issue. If it does, it would come some time after the midterm elections.