In America, the criminal justice system guides itself by something known as Title 18 of the United States Code. In Title 18, there are many chapters; the Espionage Act falls under the 37th chapter. The act itself is a catch-all of statutes tied to the retention, collection, or distribution of sensitive or classified materials, otherwise known as “national defense information.”
Though perhaps a term like “espionage” evokes images of spies in trench coats meeting in subterranean parking lots, generally speaking, in Trump’s case and the way the act is most often applied in America, it’s not about spywork as much as it is about illegal transmission, gathering, or possession of government records.
The chapter of the Espionage Act cited by the department in its warrant also covers when an individual refuses to return records after the federal government has requested them.
It is a rare thing for an American to be charged with violations of the Espionage Act, but it certainly does happen. The legislation from 1917 arrived just after World War I and was intended to control dissent among Americans and dissuade them from sharing state secrets with foreign enemies.
A century after President Woodrow Wilson made it federal law with his signature, former National Security Agency contractor Reality Winner received a five-year sentence for the leak of classified government records under the Espionage Act.
Winner leaked a top-secret document about Russian interference in the 2016 U.S. election to the news outlet The Intercept. Her crime could have earned her the recommended maximum sentence of 10 years in prison, but prosecutors agreed to pare that back to just over five years after she pleaded guilty. The government was willing to significantly reduce her recommended sentence because they did not want a jury trial. A jury trial, they argued, would gravely risk exposing even more national defense information than what Winner had already revealed.
The same year Winner was sentenced, a former CIA contractor, Kevin Patrick Mallory of Virginia, was found in violation of the Espionage Act. He didn’t just leak information, however; he sold it to the Chinese government for a profit and exposed sensitive information about his fellow CIA agents along the way. For this and other crimes, he’s now serving 20 years in prison. He appealed his sentence this June but was denied.
Trump, like Winner, started out with legal access to sensitive documents.
For Trump, that access ended when he left office because the Presidential Records Act demands that at that time, all presidential documents are returned to the National Archives. Presidential archival records do not belong to a president. They belong to the federal government and, therefore, to the American people.
The Espionage Act also makes it illegal for a person to knowingly retain records that they understand could damage national security if not restored to the government’s custody.
Trump appears to have run afoul of this portion of the Espionage Act in particular. According to The New York Times, one of his lawyers, on June 3, signed off on a statement plainly asserting that all classified records in Trump’s possession from after he left office had been returned to the Archives.
But an inventory list published with the warrant last week undercuts that claim, since agents hauled away some 11 sets of classified records, including those with top secret (TS) or sensitive compartmented information (SCI) labels.
Trump has since claimed he declassified those documents by verbal order, but whether he could declassify this way is murky. The national political news beat has been flooded with analysis about Trump’s authority to unilaterally declassify, but most legal experts agree: If Trump were to have his day in court over the illegal retention of records, it would not be a discussion about classification powers at the fore.
Rather, it would more likely be about the retention or theft of government documents.
Even if Trump did unilaterally declassify documents, it is extremely critical to note here and now: Neither the Espionage Act nor the two other criminal statutes cited in the DOJ’s warrant require documents to be classified for a violation to occur.
Again, it boils down to how he kept the records and his treatment of them, especially after he was asked to return them.
The second statute cited in the warrant, Section 1519, is about obstruction standards set out in the Sarbanes-Oxley Act. It is not tied to issues of national security in the same way the Espionage Act applies.
The 2002 legislation was devised in response to major scandals like the Enron and WorldCom debacles that had rocked the financial services industry. Section 1519 offers up to 20 years in prison per offense for the destruction, falsification or concealment of records when coupled with an intent to impede, obstruct or influence the investigation or proper administration of any matter.
By opting to predicate its search on this criminal statute, it would strongly suggest that the Department of Justice is reviewing whether Trump not only unlawfully held onto records at his Mar-a-Lago resort but whether he was doing so in an attempt to impede a greater criminal probe into his conduct.
Trump is under no fewer than five inquiries right now. Including the classified records investigation, he is also under review for criminal election interference in Georgia in 2020, fraud and obstruction tied to Jan. 6, plus two inquiries in New York, where his real estate dealings and financial practices under Trump Organization are under criminal and civil review.
The last statute cited in the warrant is known as Section 2071, and it makes it illegal to conceal, remove, or mutilate government records. Anyone who possesses a government document, and does any of the aforementioned, can be hit with a sentence of up to three years in prison if convicted. Again, whether a document is classified does not influence how this law is enforced.
Key to note in the warrant as well is that the DOJ appears to have been very careful with its language. Agents were greenlit to take “any government and/or presidential records” spanning from Trump’s inauguration to his last day in office. There was also instruction to seize “any evidence” that would support a “knowing alteration, destruction, or concealment of any government and/or presidential records, or of any documents with classification markings.” [Emphasis added]
Section 2071 also stipulates that a conviction on this charge should bar a defendant from holding office.
While this might set tongues wagging—as expectations are sky-high that Trump will run for office again in 2024—even if he was convicted on 2071, it is the Constitution that determines eligibility requirements.
The Constitution only states that a president must be 35 years old or older, a natural-born citizen, and a U.S. resident for at least 14 years. Further, the Constitution overrides federal code.
What would bar Trump from serving again can be found in an altogether different segment of the criminal code, known as 18 USC 2383. It governs rebellions and insurrections.
Under Section 2383, “whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States.”
For now, federal prosecutors have asked that a key document known as the warrant affidavit—it describes the basis of the search of Donald Trump’s Mar-a-Lago property—be kept under seal.
This is necessary because unveiling it in full could blow apart the Justice Department’s ongoing investigations, U.S. Attorney Juan Gonzalez noted in a motion filed Monday. He also noted that witnesses continue to come forward in the DOJ’s probe of the mishandled documents.
There is considerable pressure on witnesses to the probe in light of Trump’s reaction to the search and that of his cohorts still in Congress.
To that end, on Monday, Adam Bies of Pennsylvania was charged after making numerous threats to the FBI online, including vowing to kill agents he described as akin to Nazis for conducting the Mar-a-Lago search. The department says Bies posted on the right-wing social media site Gab and vowed it was “open season” on the FBI. He also taunted agents to come get him. They did, citing his illegal threats. He now faces up to 10 years in prison if convicted.
This past weekend, about two dozen of Trump’s supporters turned up armed at the FBI’s Phoenix, Arizona office. Some waved a Confederate flag as others called to abolish the FBI, a sentiment currently being peddled by Trump’s lapdogs in Congress like Rep. Marjorie Taylor Greene. The group in Arizona was broken up in a matter of hours by police. And preceding this event was an attack launched by Ohio man Ricky Shiffer who died after a conflict with police at a Cincinnati, Ohio, FBI office. Shiffer fired a nailgun at the building. Before the attack, Shiffer posted on Trump’s Truth Social platform that the search at Mar-a-Lago “must not [be] tolerated.”
A hearing on requests to unseal the affidavit has been set for Aug. 18 at 1 PM ET, before presiding Magistrate Judge Bruce Reinhart.