What is the Espionage Act, and why is Trump likely to be indicted for violating it?

National security documents found by FBI in Trump’s Mar a Lago office

18 U.S. Code § 793 is a law that was passed in 1917 just after the United States entered World War I to prevent secrets essential to the operations of the military from being transmitted to the enemy or to anyone not authorized to have them in their possession.  The act, interestingly, defines secret material as “information relating to the national defense,” which in the opinion of most legal experts removes the necessity for the documents or plans or photographs or maps to have markings of “secret” or “top secret.”

Donald J. Trump, in his capacity as a citizen of the United States, is suspected of having taken such national defense information with him from the White House when he left office in 2021. The National Archives, the repository for all the papers of a president of the United States as well as gifts given to him while in office, noticed that certain documents were missing from materials turned over by the Trump administration when the Archives began to go through Trump’s papers in 2021.  Among them was the so-called “perfect letter” written to Trump by North Korean dictator Kim Jong Un, about which Trump had trumpeted endlessly as president.  The letter was an official document of the Trump presidency because it was written to Trump as president during the time he served, thus it belonged to the United States and not to Trump. 

Looking further through what we will call the Trump papers, the Archives noticed that certain other well known papers were missing, as well as certain gifts that had been given to Trump by leaders of foreign nations.  The Archives asked for the return of all documents, gifts, and other materials Trump had taken from the White House.  Thus began the long road to where we find ourselves today, contemplating charges being brought against a former president of the United States for violating a law that was written to punish spies.

The section of the law that pertains to Trump’s alleged crimes reads as if it could have been written with him specifically in mind.  Here it is, section “d” of the Espionage Act:

Whoever, lawfully having possession of, access to, control over, or being entrusted with any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted or attempts to communicate, deliver, transmit or cause to be communicated, delivered or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it on demand to the officer or employee of the United States entitled to receive it; 

Here is the operative sentence at the bottom of the six sections of the Espionage Act that applies to violations of all of them:   Shall be fined under this title or imprisoned not more than ten years, or both.

I have written previously at length about all the stages of this legal journey, from the subpoena sent to Trump in May of last year, to the FBI search of Mar a Lago, to the appointment of Special Prosecutor Jack Smith to oversee all aspects of the several investigations of Trump that are underway, to the stories that have emerged about the various people who have been questioned by the grand jury sitting in Washington, D.C. hearing evidence in the case.  So, we don’t need to rehash all that now.

What is relevant today are recent reports of two things that bear on the investigation of Trump for violating the act, as well as a concomitant investigation of his potential violations of laws against obstruction of justice, both of which apply to Trump’s apparent illegal theft of and retention of national security information when he left office.

The first is a report in the New York Times that the Department of Justice has gathered “sufficient evidence to meet its burden of showing that the former president had retained the classified documents willfully.”  One piece of that evidence recently revealed that Trump had ordered that boxes of materials, including classified documents, be moved from one place to another on the day before representatives of the Department of Justice were due to arrive at Mar a Lago to pick up an envelope containing 38 classified documents Trump was turning over in response to the subpoena that had been issued to him on May 11 of 2022.  The date was June 2 when Trump ordered boxes to be moved within the Mar a Lago complex.  Trump’s lawyer, Evan Corcoran, called the Department of Justice on that day and said the DOJ could come pick up the 38 documents, which FBI officers and two attorneys for the DOJ did on June 3.  The DOJ officials on June 3 were shown the storage room to which boxes had been moved but were told they could not look into the boxes.  Later, this fact would be used to obtain the FBI search warrant which was executed on August 8.

Corcoran has been questioned before the grand jury multiple times about these matters, including the certification he drew up that a “diligent search” had been carried out by him, and that the 38 classified documents he turned over on June 3 were all that had been found.  Corcoran’s testimony, and that of a worker at Mar a Lago who was involved in moving the boxes, are apparently part of the evidence that shows Trump withheld the classified documents “willfully” in violation of the section against retaining national security information and failing to turn it over to “an officer or employee of the United States entitled to receive it.”  That would be the DOJ officials who showed up at Mar a Lago on June 3 and were prevented from looking into the boxes they were shown in the storage room.

The other proverbial shoe to drop was testimony by another worker at Mar a Lago that revealed Trump had kept some of the classified documents in his office openly lying around on his desk where they could be seen by anyone who walked into the office.  Special Prosecutor Smith also has testimony that Trump frequently showed classified documents to visitors in his office and bragged that the documents were “his.”

That piece of the prosecutorial puzzle relates to the section of the law against transmitting national security information to “any person not entitled to receive it.”  Anyone Trump showed the classified documents to would fall into that category, as would any employee at Mar a Lago who entered Trump’s office and had access to the classified documents lying around in full view.  That might be cleaners, the workers who moved the boxes of classified documents, or anyone else who walked into the office, including, for example, Mar a Lago visitors or Melania or Jared or Ivanka or any of Trump’s lawyers or other employees.  None of them had top secret security clearances.

The point about this section of the law is that anyone Trump revealed a top secret document to could walk out of his office and tell someone else what he or she saw.  Jared could have called his friends in the Saudi government and told them about the top secret documents Trump had about the president of France, enabling the Saudis to use that information in any oil deal they had with France, or a negotiation for France to supply the Saudis with weapons or naval vessels or military aircraft. 

Trump himself could have used the top secret information in his own dealings with foreign governments and companies.  The New York Times reported this week that the DOJ has issued a subpoena for information about Trump’s business dealings in seven countries:  China, France, Turkey, Saudi Arabia, Kuwait, the United Arab Emirates and Oman.  Since leaving office, Trump is known to have had dealings with Saudia Arabia to use his name on a complex involving a golf course, offices and apartments.  He has also had dealings with the Saudi-owned LIV golf tour, which has signed contracts to hold its events at Trump-owned golf courses in the United States and overseas, including Great Britain.

The words hot water come to mind when describing where Trump finds himself today, and we haven’t even dipped our toe into the boiling cauldron surrounding an entirely separate investigation by the Special Prosecutor into Trump’s attempts to overturn the election of 2020, as well as an investigation into his fund raising surrounding those attempts, where he is suspected of raising funds for lawsuits filed after the election that were diverted to his own Super Pac and never used for the purpose they were advertised for in fund raising appeals.  That might be a violation of laws against wire fraud, among other financial crimes.

Trump took a look at the Espionage Act while he was president and said to himself, hey, there’s a weapon I can use against my enemies in the press who keep reporting on leaks from his administration about scandals his cabinet secretaries were involved in, among other things.  Now the Espionage Act has come into play against him for what it was intended to be used for.

Ironies abound.  If Trump is charged with violating the Espionage Act, that will be a far cry from charges involving his Big Lie which Republicans have fastened themselves to as if were a life preserver in the upcoming elections.  Let’s see them try to call foul if Trump is, in effect, charged as a spy, especially if the charges involve him using top secret national security information to line his own grubby pockets.