The search of former President Donald J. Trump’s Mar-A-Lago private club/residence on August 8, 2022, revealed a trove of classified and top secret documents in his possession. The subsequent revelation by the U.S. Justice Department that the former President is under criminal investigation for violation(s) of the Espionage Act (“Act”) has stirred both national interest and debate.
The Espionage Act
Congress passed the original Act on June 15, 1917, two months after the United States entered World War I. It had two primary purposes: 1) stifling First Amendment dissent (by restricting information newspapers could publish, prohibiting material considered treasonous from being sent through the mail, and preventing protests against military enlistment); and 2) prohibiting spying for a foreign power and sharing national security information with a foreign power.
Violations of the First Amendment provisions established a fine of up to $10,000 (the equivalent of more than $231,000 today) and a prison term up to 20 years.
The First Amendment provisions targeted socialists, pacifists, communists, and others who opposed the war. Two Socialist Party members, Charles Schenck and Elizabeth Baer, were of the first individuals convicted under the Act. The anti-war activists were convicted for taking actions that obstructed the recruiting and enlistment into the military.
In 1919, the U.S. Supreme Court used the Schenck/Baer cases to uphold the First Amendment restrictions imposed by the Act.
Spying for a Foreign Power
The Act established the death penalty for violations of giving documents to or spying for a foreign power.
This death penalty provision was tested in the infamous Julius and Ethel Rosenberg case—both of whom were arrested in the summer of 1950 for being part of a conspiracy to provide the Soviet Union with classified information about the Manhattan Project (the building of the nation’s atomic bomb). Both were convicted and sentenced to death in April 1951.
The U.S. Supreme Court refused to review their convictions in October 1952 and denied stays of execution on June 19, 1953. The husband and wife were executed in the electric chair the same day at New York’s infamous Sing Sing Prison.
President Woodrow Wilson, who signed the Act into law, made it clear that the Act’s intent was to create a “redefinition of national loyalty.”
With that, the President issued this warning: “Millions of men and women of German birth and native sympathy who live amongst us. If there should be disloyalty, it will be dealt with a firm hand of repression.”
The Act has been used sporadically by 16 of the 18 presidents who followed Wilson into the White House.
However, during his eight-year term between 2008 and 2016, former President Barak Obama used the Act more than all the other presidents combined, primarily in criminal prosecutions designed to punish leaks from government employees to the media.
Former President Donald Trump was even more aggressive in using the Act during his one term in office. His one-term use of the Act surpassed Obama’s.
Unlike Obama, who used the Act to go after “whistleblowers” who leaked information to the media, Trump used the Act to go after journalists and publishers to stifle reporting on government wrongdoing.
The inevitable question arises: what must the government prove to secure a conviction under the Act?
A federal prosecutor must prove beyond a reasonable doubt four elements to establish a violation of the Act for disclosing, sharing, or selling classified information. Those elements are:
- The information transmitted is classified government information or relates to national defense; and
- The accused acted with an intent or reason to believe the information will harm the United States or help a foreign nation (not necessarily an “enemy” of the United States); and
- There was a willful communication, transfer, or receipt of the information; or
- There was an overt act in further of a conspiracy to commit espionage.
Will the classified and highly secret documents removed from the former President’s residence on August 8 fall within the realm of a violation of the Act?
There are two significant legal caveats about the elements of the Espionage Act:
- The government does not have to show or prove that the action in question caused any harm to the United States (or helped any foreign power); and
- The government does not have to prove that the disclosed information was “closely held and a threat to national security.”
The Act is both definitive and precise regarding what conduct constitutes a violation. Findlaw spells out that conduct:
- To enter or obtain information about any place connected with national defense for the purpose of obtaining information respecting national defense with intent or reason to believe that the information is to be used to the injury of the United States or to the advantage of any foreign power;
- For one who has lawful possession of certain documents, photographs, models, and similar material to transmit such material to one not authorized to receive it;
- To make or copy, or attempt to make or copy, any sketch, photograph, plan, and the like of anything connected with national defense for such purpose; or
- To receive or agree or attempt to receive from any person such materials when the recipient has reason to believe that they were taken in violation of the Act.
Concerning the criminal investigation of the former President, there appears to be substantial evidence that he possessed classified documents; that declassification protocols were not adhered to; that there were deliberate efforts to conceal the documents from the government; and that Trump’s legal team, either at his instruction or at their discretion, lied to federal agents about the presence of such documents at the former President’s residence.
There appear to be no legitimate defenses that justify the former President’s conduct in securing, handling, and concealing the classified documents.
This entire sordid political episode deserves resolution before a court of law open to the public. Anything less severely undermines and possibly destroys this nation’s rule of law.