Defense filing in Mar-a-Lago case says the government cannot criminalize 'literally-true' statements even if they misled FBI agents

Walt Nauta, left, takes a phone from Former President Donald Trump during the LIV Golf Pro-Am at Trump National Golf Club, Thursday, May 25, 2023, in Sterling, Va. When Trump appears in federal court in Miami, he will likely be joined on the witness stand by a man well-practiced in standing by his side: Nauta, his alleged valet turned co-conspirator. (AP Photo/Alex Brandon, File)

One of the co-defendants in the Mar-a-Lago classified documents case would like to modify a February motion to dismiss the indictment in light of what they say is a new argument by the government.

In a three-page notice of supplemental authority filed Friday, attorneys for Waltine “Walt” Nauta, former President Donald Trump’s personal valet, say the government recently shifted the statutory authority relied on for count 38 of the superseding indictment.

In turn, the defense says, they are providing additional citations that deal with the statutory change. The notice argues, relatively tersely, that special counsel Jack Smith and his team have made the change in a way that is detrimental to the government’s case on count 38.

Count 38 of the indictment, however, is not specifically charged against Nauta, but instead, Trump, over three allegedly false statements made to the FBI about boxes and the documents inside them.

According to Nauta’s notice, the government has shifted its legal theory (and burden) about principal-agent liability.

To hear the defense tell it, the original charge used a version of aiding and abetting liability. The filing goes on to argue that the apparently new theory being put forward by prosecutors is simply a bridge too far because it only encapsulates actual criminal activity.

More Law&Crime coverage: Jack Smith hammers Trump’s valet co-defendant for ‘numerous false factual allegations and meritless legal arguments’ in fiery Mar-a-Lago brief about ‘dilatory tactics’

The statute at issue reads:

(a) Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal

(b) Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal.

According to Nauta’s attorneys, prosecutors have “now abandoned” using subsection (a) in count 38 in favor of subsection (b).

And, the defense says, this is a fundamental error.

“Regardless, causing innocent persons to make literally-true statements does not violate [federal law], even if reliance on the statements misleads,” the notice reads. “Liability does not arise under [federal law] for causing conduct by someone lacking knowledge/willfulness unless the actus reus — the action caused — is criminal, substituting defendant’s willfulness for the actor’s innocence.”

More Law&Crime coverage: The Trump Docket: The ‘collateral consequences’ of a Trump conviction must not supersede justice, expert prosecutor says

The motion to dismiss in question argues prosecutors used a “shotgun pleading” to link “varying allegations” against Trump to Nauta even though they have “nothing to do with” the latter man.

The defense filing cites two federal cases as their new authorities in light of this apparent shift by Smith and his team.

Here’s what those authorities say about section (b):

[I]t is well established that § 2(b) was designed to impose criminal liability on one who causes an intermediary to commit a criminal act, even though the intermediary who performed the act has no criminal intent and hence is innocent of the substantive crime charged, in this case concealment …

It is … clear that under 18 U.S.C. § 2(b) one who causes another to commit a criminal act may be found guilty as a principal even though the agent who committed the act is innocent or acquitted …

The upshot of the latest defense filing appears to be in service of an argument that certain statements at issue, while misleading to FBI agents, may have been “literally-true” when they were made.

Prosecutors will likely beg to differ.

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