The Justice Department is investigating former President Donald Trump for potentially violating the Espionage Act, according to a search warrant that 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 in prison for spying for the Soviet and Russian intelligence services while they worked for the FBI and CIA, respectively.
But while Hanssen and Ames were charged under Section 794 — gathering or delivering defense information to aid a foreign government — Trump is being investigated for potentially violating Section 793 — gathering, transmitting or losing defense information, which also includes refusal to return information that is demanded by the government.
The distinction is that Trump — as far as is publicly known — is not under investigation for giving national defense information to a foreign government with the intent to harm the U.S or aid a foreign nation, or traditional espionage, according to experts who spoke to CBS News.
Though the 793 provision of the law references “transmitting” defense information, that refers to “any method of moving the document from the secure location to an unauthorized party or an unsecured location,” national security lawyer Brad Moss said.
Section 794 also carries a much steeper sentence of up to life in prison or the death penalty. The provision for which Trump is under investigation has a maximum 10-year prison sentence.
How authorities use the Espionage Act
Despite its name, the Espionage Act isn’t limited to traditional espionage. It’s also used as a vehicle to prosecute cases of mishandling classified information.
“The fact that it is still called the Espionage Act is really confusing for most people, because the law generally has nothing to do with spying at this point,” said Moss. “It should be renamed the Official Secrets Act, not the Espionage Act.”
Congress enacted the Espionage Act on June 15, 1917, two months after the U.S. entered World War I, to stifle dissent of U.S. involvement in the war. In modern day, it’s been used against those who leak classified information and those who remove classified information from secure facilities and store it at home.
Trump is not the only high-profile political figure to be investigated under the Espionage Act.
Former FBI Director James Comey controversially decided not to seek criminal charges against former Secretary of State Hillary Clinton under the Espionage Act for her private email server because there wasn’t enough evidence of willful intent or gross negligence. Dozens of emails containing classified information were housed on the server.
“The question for the Justice Department was, did she create this private server with the intent of people sending her unmarked classified information? And did she have any reason to suspect the information in those emails was in fact classified? And they concluded there was insufficient evidence of that,” Moss said.
After intensely criticizing Clinton for her handling of classified information, Trump signed a law upgrading the mishandling of secret records from a misdemeanor 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 returning all such information.
“I think that’s one of the closest precedents to the current situation,” said Ryan Goodman, a New York University law professor. “And it’s also one in which Petraeus could have been charged for the false statement, which is very similar to Trump potentially being charged with [obstruction].”
The other laws involved in the investigation
According to the search warrant, Trump is also under investigation for two other potential crimes not related to the Espionage Act. They include 18 USC 2071, involving removing, falsifying or destroying public records; and 18 USC 1519, obstruction of justice. The latter carries a 20-year maximum prison sentence, double what someone would face under Section 793 of the Espionage Act.
In January, the National Archives and Records Administration said it retrieved 15 boxes of records from Mar-a-Lago, some of which contained classified national security material. It then asked the Justice Department to investigate. That led to the FBI executing a search warrant Monday at Mar-a-Lago, with the agents seizing 11 sets of classified documents, including four sets that were classified “top secret.” Trump has claimed that all the documents were declassified.
Goodman said that the obstruction statute is not necessarily limited to obstruction of a Justice Department criminal investigation, but it could apply to the National Archive’s ability to collect presidential records.
“It could well be that what the Justice Department has in mind is not obstruction of an investigation, but simply interference or obstruction of the ability of the National Archives to properly administer government documents, presidential records,” he said.
Whether the Justice Department decides to bring charges under the Espionage Act against Trump ultimately comes down to intent, Goodman said.
“Trump is in some ways adding to the incriminating evidence by claiming that he declassified information, because then it shows that he has knowledge of what was in the documents,” Goodman said.
Both Goodman and Moss noted that the documents at Mar-a-Lago do not have to be classified for the Espionage Act to apply.
“I personally do not foresee the government bringing such a case here, unless the information is something they can also prove was classified,” Moss said. “It’s not something I see them trying with the former president.”
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