Former President Donald Trump made numerous false and misleading claims in a speech he delivered Tuesday night following his afternoon arraignment in Miami federal court to face charges of illegally retaining classified documents and obstructing the federal investigation into his conduct.
Trump, who pleaded not guilty, has been persistently dishonest about matters related to the indictment. Here is a fact check of some of the things he said in the Tuesday night address from his golf club in Bedminster, New Jersey.
Trump and the Presidential Records Act
Trump claimed that the documents he had at Mar-a-Lago were “his own documents” and that he “had every right” to keep them under the Presidential Records Act.
Facts First: 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 that law.
The key sentence from the Presidential Records Act is unequivocal: “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.”
Jason R. Baron, former director of litigation at NARA, said in a Sunday email: “Under the Presidential Records Act, not a single document pertaining to the official business of the White House – classified or unclassified – should have been carted off to Mar-A-Lago. President Trump might consider such records to be ‘his,’ but they are not.”
The Presidential Records Act and negotiation
Trump repeated his frequent claim that “according to the Presidential Records Act, which was a big deal, I was supposed to negotiate with NARA,” the National Archives and Records Administration, about the return of official documents after his presidency.
Facts First: Trump’s claim is false. Again, the Presidential Records Act says that the moment a president leaves office, NARA gets custody and control of all presidential records from his administration. Nothing in the law says there should be a negotiation between a former president and NARA over a former president’s return of presidential documents – much less that there should have been a monthslong battle after NARA first contacted Trump’s team in 2021 to try to get some of the records that had not been handed over at the end of his presidency.
Baron, the former director of litigation at NARA, told CNN in a March 2023 email: “The former President is simply wrong as a matter of law. As of noon on January 20, 2021, when President Biden took office, all presidential records of the Trump Administration came into the legal custody of the Archivist of the United States. Full stop. That means no presidential records ever should have been transferred to Mar-a-Lago, and there was no further talking or negotiating to be had.”
Timothy Naftali, a CNN presidential historian, New York University professor and former director of the Richard Nixon Presidential Library, described Trump’s claim as “nonsense” and said the former president’s description of the Presidential Records Act is “a matter of fantasy,” concocted to allow Trump to “pretend that he’s a victim.”
The law, Naftali said in March 2023, makes clear that documents Trump had at Mar-a-Lago are presidential records that legally belong to the public and are legally required to be in NARA’s custody. The law provides “no room for debates and discussions between presidential advisers and the National Archives at the end of a presidency” about such records, Naftali said.
In April 2023, the Society of American Archivists, a professional association, published its own fact check of Trump’s claim, saying it is “patently false.”
The legality of the documents probe
Trump served up a series of untrue claims about the probe itself, falsely accusing investigators of repeatedly taking steps that were either illegal or violated the Constitution.
He said last year’s FBI search of his Mar-a-Lago home was unconstitutional. Investigators snapped a photo of some of the classified documents they found and, in Trump’s retelling, the FBI “released the picture illegally to the press.” He also claimed Smith’s team “lawlessly pierced my attorney-client privilege” by obtaining testimony and written evidence from his former lawyer, Evan Corcoran.
Facts First: Trump is wrong on all three fronts. The Mar-a-Lago search wasn’t unconstitutional, it was authorized by a judge who determined that prosecutors cleared the legal bar to conduct a search. The FBI didn’t release the photo “illegally;” they included it in a court filing – in a lawsuit that Trump himself initiated. And finally, prosecutors got a judge’s approval to lawfully obtain testimony from Corcoran.
Trump’s attorneys will likely mount additional challenges to the Corcoran evidence, but at this point in the case, there’s no evidence it was improperly obtained by Smith. The special counsel’s team convinced the chief judge of the DC federal court to order Corcoran to testify at the grand jury, arguing that attorney-client privilege didn’t apply because Trump was trying to commit a crime through Corcoran.
Other presidents and documents
Trump claimed that he is being charged under the Espionage Act for taking his “own” presidential documents, even though “just about every other president has done” the same.
Facts First: It’s not true that “just about every other president” has done what Trump has done, as the National Archives and Records Administration itself pointed out in a statement in 2022. No president since the Presidential Records Act took effect with President Ronald Reagan’s records in the 1980s has taken home troves of official documents or engaged in anything like Trump’s protracted post-presidency refusal to return official documents sought by NARA and the Justice Department.
Trump has previously made a more specific version of this claim, declaring that former presidents including Barack Obama, George H.W. Bush and George W. Bush had all taken home millions of records. In reality, NARA was granted custody of their presidential records as soon as these presidents left office, as required by the Presidential Records Act, and it was NARA, not those presidents, that moved those documents out of the nation’s capital to NARA-managed temporary archival facilities near where their permanent presidential libraries would be built.
After Trump began making these false claims, NARA issued an October 2022 statement saying that it gained physical and legal custody of the records from Obama, the Bushes, Bill Clinton and Ronald Reagan “when those presidents left office.” It said of the temporary facilities to which the documents were moved: “All such temporary facilities met strict archival and security standards, and have been managed and staffed exclusively by NARA employees. Reports that indicate or imply that those Presidential records were in the possession of the former Presidents or their representatives, after they left office, or that the records were housed in substandard conditions, are false and misleading.”
In other words, there is no equivalence between Trump’s handling of presidential documents and those previous presidents.’ In Trump’s case, the presidential documents found in haphazard amateur storage at Mar-a-Lago, including documents marked as classified, were in Trump’s possession despite numerous attempts by both NARA and the Justice Department to get them back.
Jack Smith’s alleged political bias
Trump baselessly accused special counsel Jack Smith of political bias, saying Smith “does political hit jobs” for a living and that “he’s a raging and uncontrolled Trump hater, as is his wife.”
Facts First: There is no public evidence that Smith is politically biased or a left-wing zealot. In fact, Smith was involved in previous Justice Department prosecutions against high-profile Democratic officeholders – which Trump even mentioned in his speech.
CNN senior legal analyst Elie Honig said earlier Tuesday that “the record does not at all bear out this notion that Jack Smith is partisan or Democratic-leaning,” pointing out that Smith is a career official who has served under Democratic and Republican administrations since 1994.
Some of Trump’s unfounded attacks against Smith stem from the activities of his wife, filmmaker Katy Chevigny. Trump alluded to Chevigny on Tuesday night – and in many of his prior diatribes – calling her an “open Trump hater,” because she donated $2,000 to the Biden campaign in 2020, and was a producer for a Netflix documentary about former first lady Michelle Obama.
Smith himself is a registered independent and hasn’t donated to Democratic campaigns.
During his time at the Justice Department, specifically when he led the public integrity section, Smith prosecuted politicians from both parties, undercutting Trump’s previous claim that Smith has a “history of targeting conservatives.” But Honig pointed out on CNN earlier Tuesday that “the three biggest cases that Jack Smith was either involved in or oversaw as a supervisor, all were ultimately failures.”
Honig cited the prosecutions against John Edwards, the 2004 Democratic vice presidential nominee, whose campaign finance case ended in a mistrial; former Virginia Gov. Bob McDonnell, a Republican, whose corruption convictions were unanimously overturned by the Supreme Court; and New Jersey Sen. Bob Menendez, a Democrat whose corruption trial also ended in a mistrial.
Trump said the collapse of the cases against McDonnell and Edwards demonstrates that Smith’s prosecutions are unjustified.
Biden’s supposed role in the indictment
Trump began the speech with an accusation that President Joe Biden is responsible for his indictment, saying that the president “had his top political opponent arrested on fake and fabricated charges” in the middle of a presidential election.