Harvard Law professor emeritus Laurence Tribe has long been an endless font for the media in claiming clear evidence of a variety of crimes for the imminent prosecution of Donald Trump. Tribe declared evidence supporting criminal charges of witness tampering, evidence of obstruction f justice, criminal election violations, Logan Act violations, extortion and possible treason by Trump or his family. Now Tribe may have run the full course of the criminal code in claiming that Trump might be prosecuted as an effective spy because he violated rules governing the handling of classified information.
While Tribe has been repeatedly criticized for false statements and conspiracy theories, there is an insatiable appetite on some news platforms for Trump prosecution theories. It does not matter that Tribe has been repeatedly wrong on such claims in the media or pushed strikingly poor advice to Biden leading to major court losses. (For full disclosure, this has included false statements about me as well as personal attacks).
On MSNBC’s “Deadline,” Tribe again claimed a new blockbuster basis for prosecuting Trump. The segment addressed news reports that the Justice Department is investigating alleged violations of classification rules in moving documents to Mar-a-Lago after he left office.
Many of us have discussed the potential grounds for charges stemming from the allegations. As I previously noted, there are some criminal provisions that can apply to such cases, though such application to a former president would be unprecedented. The Section 1361 states that anyone who “willfully injures or commits any depredation against any property of the United States” can be given a fine or up to one year imprisonment if convicted. The Section 2071 states that anyone who “willfully and unlawfully conceals, removes, mutilates, obliterates or destroys … any record, proceeding, map, book, paper, document, or other thing, filed or deposited … in any public office” can be fined or face up to three years in prison if convicted.
However, Tribe believes that Trump could be charged with espionage. He told MSNBC:
“When we find all of this apparent top secret information finding his way to unsecured boxes to Mar-a-Lago, it’s very encouraging that the Department of Justice isn’t simply asking who packed the boxes, but what did the president then of the United States on his way out of the Oval Office have in mind in taking that information? Did he do anything with it? Did he use it for his own benefit? That would be a serious crime of espionage.”
…So there is both a national security angle and a potentially criminal angle and the most encouraging thing to me because I’m worried about accountability so that we don’t have a repeat of all of these things in 2024 of the attempted coup and insurrection. What is most important to me is that no one should be above the law, and the attorney general and his top deputy and associate attorneys general, people like Lisa Monaco, should be taken at their word when they say they’re going to follow the evidence wherever it leads right into the Oval Office, right into the former guy, so stay tuned. I think this is an important development.”
Tribe is simply incorrect that the “use of [classified material] for his own benefit” would constitute espionage. He insists it “would” be espionage, but that is belied by the elements of this crime. It is certainly true that prosecutors have sought to apply this law broadly in past cases like that of Chelsea Manning. However, it still requires the intent or reason to believe the information will harm the United States or help a foreign nation. Why would the removal of classified information clearly constitute espionage as opposed to the earlier more logical criminal allegations?
Yet, for Tribe, it is not enough that an exceptionally rare charge could be brought under these laws. Those are not nearly as thrilling as prosecuting Trump under espionage laws. There is no currently evidence to support the claim that this constitutes espionage any more than there is evidence of an endangered species violation.