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Justice Department is investigating former President Donald Trump for allegedly violating Espionage Act a search warrant which the FBI used to seize materials, including classified documents, from his Mar-a-Lago residence.
The most notorious spies were prosecuted under the Espionage Act of 1917, including Robert Hanssen and Aldrich Ames, who are serving life sentences for spying for Soviet and Russian intelligence while working for the FBI and CIA, respectively.
But while Hanssen and Ames were charged under Section 794 — collecting or supplying defense information to aid a foreign government — Trump is under investigation for alleged violation of Section 793 — collecting, transmitting, or losing defense information, including the government’s refusal to return the requested information.
The distinction is that Trump — as far as publicly known — is not under investigation for providing national defense information to a foreign government with the intent of harming the U.S. or aiding a foreign nation, or traditional espionage, according to experts working with CBS. have spoken News.
While the law’s 793 provision refers to “sending” defense information, it refers to “any method of moving the document from the secure location to an unauthorized party or unsecured location,” National Security Attorney Brad Moss said.
Section 794 also includes a much more severe penalty of up to life in prison or the death penalty. The provision against which Trump is under investigation carries a maximum prison sentence of 10 years.
How authorities use the Espionage Act
Despite its name, the Espionage Act is not limited to traditional espionage. It is also used as a means to prosecute cases of misuse of classified information.
“The fact that it’s still called the Espionage Act is really confusing to most people because the law generally has nothing to do with espionage at this point,” Moss said. “It should be renamed the Official Secrets Act, not the Espionage Act.”
Congress passed the Espionage Act on June 15, 1917, two months after the US entered World War I, to suppress dissent about US involvement in the war. Today it is used against those who leak classified information and against those who remove classified information from secure facilities and store it at home.
Trump is not the only high-profile political figure under investigation under the Espionage Act.
Former FBI Director James Comey controversially decided not to press charges against former Secretary of State Hillary Clinton under the Espionage Act for her private email server because there was not enough evidence of intent or gross negligence. The server contained dozens of emails containing classified information.
“The question for the Justice Department was, did she create this private server with the intention of people sending her unmarked classified information? And did she have any reason to suspect that the information in those emails was indeed classified? And they concluded that there wasn’t enough evidence for that,” Moss said.
After intensely criticizing Clinton for her handling of classified information, Trump signed a law that upgraded the mishandling of classified documents from a felony to a felony.
Former CIA director David Petraeus admitted to keeping classified information at home, which he shared with his biographer with whom he was having an affair, while lying to the government about giving back all such information.
“I think this is one of the closest precedents to the current situation,” said Ryan Goodman, a law professor at New York University. “And it is also one in which Petraeus could be charged for the false statement, which is very similar to Trump possibly being charged with [obstruction].”
The other laws involved in the investigation
According to the search warrant, Trump is also under investigation for two other possible crimes unrelated to the Espionage Act. They include 18 USC 2071, removing, falsifying, or destroying public records; and 18 USC 1519, obstruction of justice. The latter carries a maximum prison sentence of 20 years, double what a person would receive under Section 793 of the Espionage Act.
In January, the National Archives and Records Administration said it had recovered 15 boxes of records from Mar-a-Lago, some of which contained classified National Security material. Then the Department of Justice asked to investigate. That led the FBI to issue a search warrant in Mar-a-Lago on Monday, with the agents confiscating 11 sets of classified documents, including four sets classified as “top secret.” Trump has claimed that all documents have been released.
Goodman said the obstruction statute is not necessarily limited to obstructing a Justice Department criminal investigation, but may apply to the National Archives’ ability to collect presidential data.
“It may very well be that the Department of Justice has in mind not hindering an investigation, but simply interfering or hindering the National Archives’ ability to properly manage government documents and presidential records,” he said.
Whether the Justice Department decides to charge Trump under the Espionage Act ultimately comes down to intent, Goodman said.
“Trump is adding to the incriminating evidence in some ways by claiming that he released information because it shows that he has knowledge of what was in the documents,” Goodman said.
Both Goodman and Moss noted that the documents in Mar-a-Lago do not need to be classified before the Espionage Act takes effect.
“Personally, I don’t foresee the government bringing such a case here unless the information is something they can also prove to be classified,” Moss said. “It’s not something I see them trying with the former president.”
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Caitlin Yilek