(WASHINGTON) — Much as happened after his first indictment, former President Donald Trump and his Republican allies are minimizing and/or mischaracterizing the charges leveled against him over his alleged mishandling of classified documents.
The full-throated response from Trump and his staunchest supporters includes inaccurate claims about the Espionage Act and the Presidential Records Act, as well accusations of “weaponization” by the Justice Department, made without evidence.
Trump, who has been charged with 37 counts ranging from willful retention of national defense information and conspiracy to obstruct justice, has denied all wrongdoing.
The indictment unsealed last week by prosecutors alleged Trump knowingly kept classified secret documents and put national security “at risk.”
Here’s a fact-check of some of the claims being made by Trump and his Republican allies.
‘He is not a spy’
Trump inaccurately referred to the charges under the Espionage Act during a Saturday speech to a Republican audience in Georgia.
“Doesn’t that sound terrible?” Trump said in an apparently mocking tone. “Oh, espionage. We got a box. I got a box. The espionage.”
Trump is being charged with 31 counts under the Espionage Act, but he is not being accused by prosecutors of being a spy. The indictment did not provide evidence prosecutors believe Trump disseminated the information to a foreign government or other entity with the intent to harm the U.S.
The 31 counts under the Espionage Act are being brought under Section 793(e), with prosecutors alleging he had “unauthorized possession of, access to, and control over documents relating to the national defense” and “did willfully retain the documents and fail to deliver them to the officer and employee of the United States entitled to receive them.”
Sen. Lindsey Graham, R-S.C., on ABC’s “This Week,” called the Espionage Act charges “absolutely ridiculous.”
“Whether you like Trump or not, he did not commit espionage,” Graham said. “He did not disseminate, leak or provide information to a foreign power or to a news organization to damage this country. He is not a spy. He’s overcharged.”
But Bill Barr, who served as attorney general under Trump, said the Espionage Act charges “are solid counts.”
“I do think we have to wait and see what the defense says and what proves to be true, but I do think that … if even half of it is true, then he’s toast,” Barr said during a Fox News interview.
He said efforts to paint Trump as a “victim” are “ridiculous.
‘He declassified all of this’
Rep. Jim Jordan, the Ohio Republican who chairs the House Judiciary Committee, claimed during a Sunday appearance on CNN’s “State of the Union” that Trump has “said time and time again he declassified all this” and “can put it wherever he wants and handle it however he wants.”
But according to prosecutors, Trump admitted on tape that he possessed classified documents he hadn’t declassified in a transcript of an audio recording of an interview he did at his New Jersey golf club in July 2021.
“See, as president I could have declassified it,” Trump allegedly said. “Now I can’t, you know, but this is still a secret.”
Trump and his legal team haven’t provided evidence that he declassified all the materials found at his Mar-a-Lago estate.
Pressed for proof Trump declassified the material, Jordan replied: “I go on the president’s word.”
Immunity under the Presidential Records Act
Trump, in Georgia this past weekend, continued to claim all the documents fell under the Presidential Records Act, which is not a criminal statute, and criticized prosecutors for not mentioning the law in the indictment.
The 1978 law requires that records created by presidents and vice presidents be turned over to the National Archives and Records Administration at the end of their administrations, but Trump and his team have argued in the past that the law allows him to negotiate with NARA over which documents are personal and what’s presidential.
NARA in a June 9 statement pushed back on misleading claims about the Presidential Records Act, stating it requires a president to separate personal and presidential documents “before leaving office.”
“There is no history, practice, or provision in law for presidents to take official records with them when they leave office to sort through, such as for a two-year period as described in some reports,” the administration said.
Comparison with Biden’s case
House Speaker Kevin McCarthy on Monday attempted to draw comparisons between Trump’s case and the classified documents found at President Joe Biden’s home and office, which is also under investigation by a special counsel.
“I think President Trump has not been treated equally like everybody else in this process,” McCarthy told reporters. “I think when you’re looking now currently at a current president that has documents sitting behind his automobile in a garage that date all the way back to a senator, that raises a lot if you’re charging one and not charging the other. You raid one house and you don’t raid the other — that’s a little different, and that’s not fair.”
Legal experts have noted the apparent differences in Trump and Biden cases, including how each responded to law enforcement. Unlike in Trump’s case, where authorities had to issue a subpoena and later conduct a search to get the documents, which Trump allegedly concealed, Biden attorneys said they immediately notified the National Archives when they found the first set of documents at his office in November 2022.
Reporters repeatedly pressed this point with McCarthy, noting that the indictment alleges that Trump deliberately misled investigators and conspired to obstruct justice, allegations that have not been levied against Biden and others. McCarthy did not address those discrepancies directly.
“Is it a good picture to have boxes in a garage that opens all the time?” McCarthy added, commenting on the documents found in Biden’s possession at his Delaware residence. “A bathroom door locks.”
It’s not clear whether the door at the Mar-a-Lago bathroom was locked or even had a lock.
ABC News’ Allison Pecorin and Gabe Ferris contributed to this report.
Copyright © 2023, ABC Audio. All rights reserved.