Trump is not a spy. Why is he charged under the Espionage Act?

An emerging defense of former President Donald Trump is that he should not be criminally charged. The federal indictment released on Friday describes him sloppily hoarding classified documents at his private clubs, after all, not selling secrets to a foreign country.

Here are some examples of that talking point:

►”You may hate his guts, but he is not a spy; he did not commit espionage,” said Sen. Lindsey Graham of South Carolina. He said the charges are “ridiculous” and “paint an impression that doesn’t exist.”

“Look at who’s been charged under the Espionage Act: Julian Assange, Edward Snowden, Chelsea Manning – people who turned over classified information to news organizations to hurt the country or provide it to a foreign power. That did not happen here,” Graham said.

►Trump also made the same argument during an appearance in North Carolina. “They’re going after me under the Espionage Act. That’s like the creation of missiles in your basement,” he said.

►”Joe Biden’s Justice Department is trying to argue that Trump is a spy, which is really absurd,” said the Fox News host Brian Kilmeade Monday night.

It is true that most of the crimes – 31 of the 37 counts – that Trump has been accused of committing stem from the Espionage Act. But it is a complete mischaracterization to say that Trump has been accused of espionage in the common definition.

It is also true that plenty of people, including in recent years, have been charged not just for willfully leaking information, as with the cases cited by Graham, but also for retaining it, like Trump.

For example, a retired Air Force officer, Robert Birchum, was sentenced earlier this month to three years in federal prison for keeping classified material at his Florida home. Birchum was charged under the same portion of federal law that prosecutors have accused Trump of violating – the Espionage Act.

The Espionage Act is bigger than espionage

The CNN legal analyst and the former counsel to the assistant attorney general for national security Carrie Cordero explained the legal system to CNN’s Jake Tapper on “The Lead” on Monday. A typical spy would be charged under the Espionage Act, she said. But so would someone who improperly retained national defense information.

“In this case, former President Trump hasn’t been charged with spying for a foreign government, or espionage as we normally think about it, but he has been charged with willfully withholding national defense information – which is the way that a case like this is normally charged,” Cordero said.

She also noted that in the national security legal community, there is some discussion of separating laws related to national security information out from the Espionage Act.

Complex system of laws

An outline of laws related to classified and sensitive information by the Congressional Research Service describes a system “based on a complex and often overlapping set of statutes or individual provisions within statutes.”

There is no single law meant to cover all of these cases. While mishandling or inappropriately storing national security material is clearly a risk, one obstacle in convicting Trump could be that he did not appear to be using it against the United States – selling it or giving it to a foreign country – but rather just bragging about having it.

The Espionage Act was first passed in 1917, as the US entered World War I, although it has been updated in the century since.

Here’s what the law says

The specific language in 18 US Code 793 (e), which is cited in the indictment against Trump, goes like this, and I’ve put the key portion in bold:

(e)Whoever having unauthorized possession of, access to, or control over any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted, or attempts to communicate, deliver, transmit or cause to be communicated, delivered, or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it to the officer or employee of the United States entitled to receive it; or …

That’s the whole point here. The National Archives and the FBI tried repeatedly over time to get the material back. But the government has accused Trump of hiding from the government and his own lawyers.

What about the idea that Trump had the power to declassify?

A separate argument being put forward on Trump’s behalf is that presidents have the authority to declassify information, and so Trump cannot have improperly held classified information.

Here’s Rep. Jim Jordan, the chairman of the House Judiciary Committee, talking to CNN’s Dana Bash: “The standard is clear. The standard is Navy v. Egan, a 1988 case,” Jordan said.

“And it said the president’s ability to classify and control access to national security information flows from the Constitution. He decides. He alone decides. He said he declassified this material. He can put it wherever he wants. He can handle it however he wants; that’s the law,” Jordan added.

The complication for Jordan’s argument

Trump, according to the indictment, is on tape referring to material as still classified and admitting that, since he is no longer president, he lacked the ability to declassify it.

Nick Akerman, the former special Watergate prosecutor, told Tapper the Egan case has nothing to do with the Trump case, but is rather concerned with a Navy contractor who was denied the ability to work on a submarine program.

“In fact, what it does say – it warns about giving untrustworthy people access to classified information, which applies in spades to Donald Trump,” said Akerman. “If you look at what he did with this material after he was president, that he held on to it when he had no right to do it.”

There’s also more to the indictment than simply the portions dealing with the Espionage Act. Trump is also accused of withholding, corruptly concealing and scheming to conceal documents in a federal investigation, along with making false statements.

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