Espionage Act in the spotlight after Trump indictment. What is it?

by Jared Gans - 06/09/23 6:21 PM ET

Former President Donald Trump speaks with reporters while in flight on his plane after a campaign rally at Waco Regional Airport, in Waco, Texas, Saturday, March 25, 2023. (AP Photo/Evan Vucci)

After a more than yearlong investigation, former President Trump has been charged with more than three dozen criminal counts related to his continued possession of classified and sensitive documents at his Mar-a-Lago property after leaving the White House.

Most of the charges Trump is facing are counts of willful retention of national defense information in violation of the Espionage Act of 1917. He is also facing charges of conspiracy to obstruct justice, withholding a document or record, corruptly concealing a document or record, concealing a document in a federal investigation, scheming to conceal and making false statements and representations.

The indictment against Trump revealed federal investigators made extensive efforts to recover the documents that were taken from the White House at the end of Trump’s presidency before and after the search that the FBI conducted at Mar-a-Lago in August.

It also alleged the former president had documents concerning the country’s nuclear program and military capabilities.

The Espionage Act declares that obtaining information relating to national defense to be used “to the injury of the United States” or “to the advantage of any foreign nation” is illegal.

“The unauthorized disclosure of these classified documents could put at risk the national security of the United States, foreign relations, the safety of the United States military, and human sources and the continued viability of sensitive intelligence collection methods,” the indictment states.

The law also prohibits anyone who was lawfully allowed to possess information related to national security from sharing it with others who are not authorized. These individuals who are allowed to have the information also cannot “willfully” retain the documents and fail to deliver them upon demand from an officer who is allowed to possess them.

Conviction for violating the law can carry a maximum penalty of up to 10 years in prison and a fine of $250,000, according to the indictment.

The law was originally enacted during the U.S. involvement in World War I to prevent interference with the war effort and to prevent Americans from supporting the country’s enemies during the war.

More Trump indictment coverage from The Hill

Legal experts have said varying levels of intent required for a potential violator to meet the level of breaking the law could have implications for Trump. The law includes more than a half-dozen provisions that lay out different circumstances when a violation might occur.

Derek Bambauer, a law professor at the University of Arizona, said a “state of mind” provision is common in criminal law, taking into account what the person’s intent was.

The act’s fifth provision — which Trump has been accused of violating — states that a potential violator must have a reason to believe information they share with an unauthorized individual or refuse to provide upon demand from a U.S. officer could be used to harm the U.S. or help a foreign nation.

Experts also said Trump’s common defense of his conduct, that he declassified the documents that were taken to Mar-a-Lago, is not relevant to the Espionage Act because it does not mention classification status. Bambauer said the documents only need to contain sensitive information that could be used in a threat to national security.

The indictment also includes a conversation Trump allegedly had with one of his staff members and a writer and a publisher in July 2021 in which he seems to acknowledge not declassifying a document he referenced.

“See as president I could have declassified it,” he said, later adding “Now I can’t, you know, but this is still a secret.”

Tags Donald Trump Espionage Act indictment Mar-a-Lago Trump classified documents