How the superseding indictment and third defendant impact Trump documents case

The superseding indictment filed against Donald Trump in the classified documents investigation this week — and the addition of a third defendant — expand the scope of the crimes the former president is accused of committing and could bolster the case against him, according to legal experts.

Federal prosecutors filed three new charges against Trump in his alleged keeping and hiding of classified documents at Mar-a-Lago, essentially replacing the initial indictment in the case with a new one that reveals more evidence and brings the total federal charges against the former president to 40.

The third co-defendant is Mar-a-Lago employee Carlos De Oliveira, who is accused of lying to the FBI in a January interview and “altering, destroying, mutilating or concealing” an item or document. Waltine “Walt” Nauta, a longtime Trump aide who was charged alongside the former president in the initial June indictment, was also slapped with additional charges involving altering or concealing an item or document.

Both Trump and Nauta pleaded not guilty when they were arraigned on the initial charges. A lawyer for Nauta declined to comment on the new charges Thursday night, and a spokesman for Trump dismissed the superseding indictment as an attempt to harass the former president.

The superseding indictment accuses Trump of working with his employees to try to delete security camera footage from being reviewed by investigators, while adding a new count of willfully retaining national defense information. That count is related to Trump allegedly showing a top secret military document about Iran to other people who, like him, lacked the security clearance required to see such material.

The additional charges of lying to investigators could send a warning signal to other witnesses, the legal experts said: The case against Trump and his employees is strong and growing, and witnesses should cooperate with federal prosecutors if they want to avoid getting indicted themselves.

While every legal maneuver in cases involving Trump is heavily scrutinized, experts say superseding indictments are exceedingly common. Having multiple co-defendants in a single case — rather than trying co-defendants in separate trials — is also business as usual.

“Why would you try the same case three times? You are presenting the same case,” said Patrick Cotter, a former federal prosecutor now in private practice in Chicago. “People who are charged with the same acts are usually, overwhelmingly charged together. That’s the presumption. You do it once, you don’t do it three or five times.”

Legal experts said it is hard to say exactly what propelled the Justice Department to file the initial indictment against Trump and Nauta in June, then add additional charges and another defendant weeks later. But they noted there are many common reasons lawyers would do so.

Among them: Prosecutors could have gathered additional evidence, or other witnesses may have decided to speak with investigators after they read the first indictment.

“There is a lot of intrigue but not a lot of answers,” said Scott Sundby, a University of Miami law professor. “It certainly suggests that more pieces are snapping into place.”

Alison Siegler, director of the Federal Criminal Justice Clinic at University of Chicago Law School, said that the superseding indictment suggests that officials were still working to gather more evidence after they charged Trump in June. In many investigations, prosecutors file their indictments only once, after they have completed their entire investigation, rendering a superseding indictment unlikely.

Siegler also said that superseding indictments could be used as a tactic to get witnesses to cooperate with prosecutors. In this instance, prosecutors could be trying to put pressure on De Oliveira so he will tell investigators what he knows. De Oliveira is scheduled to be arraigned on Monday in Miami; his lawyer declined to comment Thursday night.

“They might want to indict him with Trump to essentially pressure him and to use it as leverage to get him to flip,” Siegler said. “Maybe putting him in the indictment and saddling him with this criminal prosecution would get him to flip and to be a cooperating witness against Trump.”

Some former prosecutors said that a superseding indictment could slow down the legal proceedings. Defendants are entitled to review the evidence that the government has collected against them as part of the often lengthy discovery process.

Prosecutors said at a pretrial hearing in the case earlier this month that they have already handed over a large amount of the unclassified evidence for review by Trump’s and Nauta’s attorneys. Now, De Oliveira’s legal team must also review the materials, starting a few weeks after the other defendants.

But the office of special counsel Jack Smith — the federal prosecutor leading the day-to-day operations of the investigation — says it does not expect the superseding indictment or the addition of De Oliveira to push back the trial, which U.S. District Judge Aileen M. Cannon has scheduled to start in late May of next year.

Trump is the early front-runner for the 2024 Republican presidential nomination, and that time frame probably would place the trial after the nomination is essentially secured. Trump’s attorneys had suggested that holding the trial after the 2024 general election would be the best way to get an impartial jury, while Smith’s team sought a trial by the end of this year.

According to a Thursday evening court filing about the superseding indictment, prosecutors said they do not expect the new charges against Trump and Nauta to expand the amount of discovery materials they need to hand over to the defense lawyers. They said they would work to ensure that De Oliveira’s attorneys quickly obtain the necessary security materials to view the classified materials at the crux of the case.

Before the trial starts, legal experts said, lawyers for Nauta and De Oliveira could ask Cannon to sever their cases from Trump’s — meaning that they would ask for separate trials.

At a hearing last week, Nauta’s attorney, Stan Woodward, said he would consider requesting such an option.

The attorneys could argue that their clients’ cases should be severed so they could have a fair trial, since Trump is such a well-known and polarizing person. A motion to sever could also serve as a tactic to delay the trial’s start date.

But Cotter said lesser-known people are often tried as co-defendants alongside more controversial clients, and it is unusual for a judge to accept a request to separate their trials.

“There’s lots of reasons you do not want to sit next to someone as notorious a person as Trump,” Cotter said. “But someone has to be the worst guy at the table. Judges don’t sever people because the people they are being tried with are notorious.”