What is the Espionage Act?

The Department of Justice 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 working for the ‘FBI and the CIA, respectively.

But while Hanssen and Ames were charged under Section 794, gathering or delivering defense information to assist a foreign government, Trump is investigated for possibly violating Section 793 — the collection, transmission or loss of defense information, which also includes the refusal to return information requested 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 US or help a foreign nation, or for traditional espionage, according to experts who talk to CBS. news

Although section 793 of the Act refers to the “transmission” of defense information, this refers to “any method of moving the document from a secure location to an unauthorized party or an unsecured location” , said national security attorney Brad Moss.

Section 794 also carries a much more severe penalty of up to life imprisonment or death penalty. The provision for which Trump is under investigation carries a maximum sentence of 10 years in prison.

How authorities use the Espionage Act

Despite its name, the Espionage Act is not limited to traditional espionage. It is also used as a vehicle for prosecuting cases of mishandling 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 enacted the Espionage Act on June 15, 1917, two months after the United States entered World War I, to stifle dissent from US involvement in the war. Currently, it has 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 under investigation 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 over her private email server because there was insufficient evidence of intent willful or gross negligence. Dozens of emails containing classified information were hosted on the server.

“The question for the Justice Department was: Did you set up this private server with the intent that people would send you unmarked classified information? And did you have any reason to suspect that the information in those emails was in fact classified? And they concluded that it wasn’t enough. proof of that,” Moss said.

After heavily criticizing Clinton for her handling of classified information, Trump signed a law that upgraded the mishandling of classified 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 of that 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’s also one where Petraeus could have been impeached for the false statement, which is very similar to Trump being impeached. [obstruction].”

The rest of the laws involved in the investigation

According to the search warrant, Trump is also under investigation for two other potential crimes unrelated to the Espionage Act. They include 18 USC 2071, which involves the removal, falsification, or destruction of public records; and 18 USC 1519, obstruction of justice. The latter carries a maximum prison sentence of 20 years, double what someone would face under Section 793 of the Espionage Act.

In January, the National Archives and Records Administration said it was recovered 15 Mar-a-Lago record boxessome of which it contained classified national security material. He then asked the Justice Department to investigate. That prompted the FBI to execute a search warrant at Mar-a-Lago on Monday, with agents seizing 11 sets of classified documents, including four sets that were classified as “top secret.” Trump has claimed that all the documents were declassified.

Goodman said the obstruction statute isn’t necessarily limited to obstructing a Justice Department criminal investigation, but could apply to the National Archives’ ability to collect presidential records.

“It could be that what the Justice Department has in mind is not obstruction of an investigation, but simply interference or obstruction of the National Archives’ ability to properly manage 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 somehow adding to the incriminating evidence by claiming he declassified the information, because then it shows he has knowledge of what was in the documents,” Goodman said.

Both Goodman and Moss noted that the Mar-a-Lago documents do not have to be classified for the Espionage Act to apply.

“Personally, I don’t foresee the government bringing this case here unless the information is something that they can also show is classified,” Moss said. “It’s not something I see them trying with the former president.”

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Caitlin Yilek

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