The Espionage Act: Is Donald Trump the Next Edward Snowden?

Former president Donald Trump is now the highest-profile person to be charged under the Espionage Act for unlawfully retaining classified records dealing with matters of national defense. Of the 37 federal criminal charges levied against him, 31 relate to individual documents that he willingly and admittedly withheld from the government after he lost the 2020 election to President Joe Biden. We've covered a plethora of his previous charges, but these may be the most significant ones he's currently facing.

Mishandling classified documents is a serious crime—we even had a whole podcast episode about it. The consequences can be all the more dire when the documents are stored in insecure areas that could be easily accessed by foreign actors. An email server that's vulnerable to hacking would be a terrible place to put classified information, for instance. Likewise, you probably shouldn't leave important documents laying around in a ballroom, a bathroom and shower, office space, a personal bedroom, or a storage room in a resort.

Trump himself made a big deal about the mishandling of confidential documents by his competitor for the 2016 presidential election, Hillary Clinton (and he now asks why she wasn't also indicted).  In fact, the former president was so incensed about Clinton's alleged mishandling of records that he pushed for and sign a law increasing the penalties for mishandling classified information. So, it's safe to assume that he knew that retaining and refusing to return classified information was a big legal "no-no."

Trump may know about the Espionage Act and why violating it is a bad idea, but not all of us are as informed as someone who was elected to the highest office in the land. Let's get into it.

What Is the Espionage Act?

The Espionage Act was passed in 1917, shortly after the U.S. entered into World War I. The Act was a sort of sequel to the Defense Secrets Act of 1911—it hit all the same notes, just bigger and with much harsher penalties. Its intent was fairly simple: to prevent espionage. 

The Act either criminalized or increased criminal penalties on a number of offenses against the United States and its military. It covered too many actions to list here, and subsequent amendments added, subtracted, and modified many of its provisions. It is currently coded as federal law under 18 U.S.C. § 793, which you can read the text of here.

The relevant upshot is this: Under the Espionage Act, it is highly illegal to mishandle sensitive government records relating to the "national defense." This is a vague and broad phrase, but it is typically understood as having to do with any materials that could be detrimental to America's national security if disclosed improperly.

Modern Violators of the Espionage Act

Knowing a few examples of how the Espionage Act has been used in the past may help elucidate how it applies in this particular case. The Act has been used to prosecute a number of high-profile cases in the past, many of which you've probably heard of. The perpetrators from recent times include:

• Julian Assange, the founder of WikiLeaks 
• Daniel Ellsberg, the whistleblower who leaked the Pentagon Papers
• Chelsea Manning, the whistleblower in the "Cablegate" scandal who uploaded classified information to WikiLeaks
• Edward Snowden, the former NSA contractor who leaked details of global surveillance programs

Each of the people listed above has violated the Espionage Act by mishandling confidential or classified information that have severe implications to our national security. Joining that list now is former president Trump.

The section of the Espionage Act in question applies to someone who has "unauthorized possession" of national defense information and makes it a crime to willfully retain the information or to fail to deliver it back to the government when requested. The former president refused to return the records he took from the White House for over a year, then actively attempted to hide them after being subpoenaed and having his Mar-a-Lago estate raided by the FBI.

"Declassifying" Not a Defense

Trump has repeatedly maintained that it wasn't a big deal that he kept, actively concealed, and refused to return top-secret records from investigators. He and his lawyer have countered with a number of defense theories to support their claim that he did nothing wrong. They rather boldly claimed that the records were planted by the FBI to incriminate him. They also suggested that Trump had "declassified" the records, so it was okay to keep them. On the other hand, the former president made remarks in an audio recording recently revealed by CNN in which he indicated he was aware of limitation on his ability to declassify the records. 

But even if Trump had declassified the records, that wouldn't get him out of trouble. The Espionage Act makes it a crime to retain or disclose of sensitive defense information — regardless of whether or not it's "classified." Thus, in the proceedings against him, prosecutors do not have to prove that the records themselves were classified. 

The fact that Trump and his legal team have not presented any evidence that they were ever declassified does little to help his case. Andy McCarthy, a former federal prosecutor, said: "There is no actual evidence that Trump declassified documents, but even if he did, that would not mean the documents aren't national defense information."

Again, these actions are officially known in legal circles as "no-nos."

Related Resources:

• What Happens if Trump is Indicted? (FindLaw's Courtside blog)
• Mens Rea: A Defendant's Mental State (FindLaw's Learn About the Law)
• Yes, Trump can be Charged with Inciting a Riot (FindLaw's Federal Courts blog)