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The Espionage Act Is Not The Answer To Donald Trump

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While the United States Justice Department has increasingly wielded the Espionage Act to make an example out of government employees or contractors, federal prosecutors have been reluctant to charge current and former high-ranking officials. That makes the thirty-one Espionage Act charges against former President Donald Trump stunning.

On June 8, 2023, Trump was accused by prosecutors of “unauthorized possession” of documents “relating to the national defense.” He was additionally accused of “willfully” retaining those documents and failing to turn them over to an officer or employee “entitled to receive them.”

The alleged offenses fall under 793(e) of the Espionage Act, which has featured in a number of leak prosecutions against whistleblowers and media sources. Of course, Trump is neither. He kept the documents in boxes at his Mar-a-Lago Club in Palm Beach, Florida.

Back on August 10, 2022, days after the FBI raided Trump’s estate, I published an analysis of prior cases where the Justice Department had investigated lower-level government employees or contractors for unauthorized possession of information. In big bold letters, I shared it under the headline, “Justice Department Unlikely To Charge Trump With Violating The Espionage Act.”

I was fairly certain, given the example of General David Petraeus, that Trump’s legal team would be able to negotiate with the Justice Department behind closed doors to ensure that he was not charged with violating the Espionage Act. But I was wrong, and now I realize that would have required Trump to concede that he had done something wrong by possessing the classified documents.

Numerous Republicans have lashed out at the Justice Department for indicting Trump, who has a commanding lead in polls for the party’s 2024 presidential primary. Republicans contend that the Justice Department has been “weaponized” against Trump.

Such a response would be easy to flat-out dismiss if it weren’t for the fact that the Justice Department has been, in one way or another, investigating Trump since 2016.

As Jeff Gerth exhaustively documented for the Columbia Journalism Review, Democratic presidential nominee Hillary Clinton and her campaign “secretly sponsored” and “publicly promoted” an “unsubstantiated conspiracy theory that there was a secret alliance between Trump and Russia.” Former FBI director and special counsel Robert Mueller oversaw a sprawling investigation into Trump, but the investigation failed to uncover evidence that would support criminal charges.

Nonetheless, federal prosecutors appear to have plenty of evidence to show that Trump took hundreds of classified documents that should have been turned over to the National Archives and Records Administration (NARA) because they were not his property. He transported the boxes to his Mar-a-Lago Club and allegedly continued to hide documents from Justice Department officials and FBI agents when they requested that he return the files to the government.

Republican Senator Lindsey Graham tweeted, “President Trump will have his day in court but espionage charges are absolutely ridiculous. Whether you like Trump or not, he did not commit espionage. He did not disseminate, leak or provide information to a foreign power or news organizations to damage this country.”

“He is not a spy,” Graham added. “He is overcharged. Did he do things wrong? Yes, he may have. He will be tried about that. But Hillary Clinton wasn’t.” (Clinton improperly shared classified information on a private email server but was not charged with any offenses.)

Importantly, Graham makes a distinction that has not prevented the Justice Department from securing convictions under the Espionage Act. It does not matter if the accused did not act as a spy. It does not matter if the accused did not provide information to a “foreign power.” It does not matter if the accused did not publicize the information to “damage” the United States. This is why there have been attempts to reform the law (attempts which Graham has not supported).

Beyond that, Graham promotes ignorance by comparing apples to oranges. Trump was not accused of making an “unauthorized disclosure” of information. He was accused of “unauthorized possession,” which is different from most of the recent high-profile leak prosecutions.

“Unauthorized possession” under the Espionage Act is a felony-level offense. Perhaps, another statute in the U.S. criminal code—18 U.S. Code § 1924—that specifically covers the “unauthorized removal and retention of classified information” would have been more appropriate for Trump and less shocking. That statute does not contain the word “espionage” in the law.

Incredibly, the crime of mishandling classified information was a misdemeanor-level offense until 2018, when Trump signed a law that increased the punishment. He made “unauthorized removal and retention of classified information” a felony punishable with up to five years in prison.

Very Little Repression In The Espionage Act Case Against Trump

For two of the chapters of my bookGuilty of Journalism: The Political Case Against Julian Assange, I recount how the Espionage Act has historically been used to crack down on antiwar dissent and criminalize alternative media publications. Ralph Engelman and Carey Shenkman, who authored A Century of Repression: The Espionage Act and Freedom of the Press, compiled an even more exhaustive history of the weaponization of this 1917 law against Americans.

The Espionage Act case against Trump, however, is an exception to the rule. Very little repression has occurred. The Secret Service knew before the raid in August 2022 that FBI agents would show up to conduct a search of the Mar-a-Lago Club.

Trump was not immediately arrested and charged. Trump was given ample opportunity to hand over documents before they were seized. An investigation, with Special Counsel Jack Smith in charge, plodded slowly toward an indictment that occurred ten months later.

Screen shot from U.S. Justice Department’s broadcast of Special Counsel Jack Smith announcing the indictment against Trump

After Trump was officially charged on June 8, Trump’s legal team was notified. He was not immediately arrested. He was able to hold a rally in Georgia. An arraignment date for Tuesday, June 13, was scheduled days later, which was unusual, and bizarrely, the news media and the public learned that Trump had been indicted from the defendant himself when he posted about it on TruthSocial.

The indictment was not unsealed by the Justice Department until June 9. Only then did Smith make a public statement about the charges.

If there is any reason for concern, it is that the liberal Democratic establishment is eager to see this prosecution save President Joe Biden from a close election or potential defeat. Biden will be 81 years-old as he campaigns for re-election. Before Biden announced his 2024 campaign, polls showed around half of Democrats were opposed to Biden running for president again.

The lack of enthusiasm for a presidential incumbent’s re-election may make it difficult for the Democrats to counter the right-wing demagoguery of Trump. But a prosecution is no remedy for an ailing democratic republic that only gives voters the illusion of choice in presidential elections.

Now, torture advocate and former Bush administration official John Yoo contends that Trump should not be prosecuted because he is a former U.S. president and ahead of Biden in some polls. “We’re breaking an institutional norm that has been there since the beginning of our country, which is leave former presidents alone.”

Yoo would know. He, along with David Addington, Steven Bradbury, Jay Bybee, Dick Cheney, Alberto Gonzales, Donald Rumsfeld, and other Bush administration officials, encouraged or engaged in a number of criminal acts. They all benefited from this supposed inviolable norm, and anyone who cares about accountability should oppose impunity or immunity for former US presidents.

I have covered and reported on nearly every Espionage Act prosecution that has occurred in the past 10-15 years, particularly cases involving “unauthorized disclosures.”

When Trump was president, NSA whistleblower Reality Winner, FBI whistleblower Terry Albury, drone whistleblower Daniel Hale, and WikiLeaks founder Julian Assange were all indicted under the Espionage Act.

Trump nearly pardoned Assange and NSA whistleblower Edward Snowden, who was indicted under Obama. In the end, Trump was too scared that Senate Republicans might support his impeachment if he took a stand.

Winner, who does not think Trump should go to prison, had an optimistic reaction to the indictment.

“This is probably one of the most transparent and straightforward indictments that defines national defense information and gives the public a sense of the itemized description of every document, which is not how this particular law has been used against ordinary citizens,” Winner told NBC News. “So this might set the new legal standard on how it will be used in the future. Perhaps it could give people like myself who were acting out of moral conscience more leverage under the law.”

Unfortunately, I doubt the charges against Trump will make it any easier for a person of conscience who is unfairly targeted. A former U.S. president was only charged because their defiance of authorities was so brazen that the government had to charge Trump to avoid embarrassment.

Do not mistake that statement as one of support for the Espionage Act case against Trump. The potential harm to national security caused by Trump’s alleged actions is as theoretical and over-hyped as most cases. Which is to say that no one was ever truly in danger, despite the pronouncements of national security agents.

By charging Trump, I believe the government has ensured that the immense power that prosecutors wield will go unchecked by lawmakers and another century of repression will be possible with widespread support from political elites.

That will be terrible for future whistleblowers, media sources, and journalists or publishers, who are certain to have their lives upended because there was no meaningful push to reform or abolish the draconian law.

Kevin Gosztola

Kevin Gosztola

Kevin Gosztola is managing editor of Shadowproof. He also produces and co-hosts the weekly podcast, "Unauthorized Disclosure."