Trump Card: The Use of the Espionage Act Revives Long-Standing Concerns

Below is my column in the Daily Beast on the use of the Espionage Act against former president Donald Trump in the federal prosecution by Special Counsel Jack Smith. The statute is currently being used against Julian Assange and has a long and troubling history.

Here is the column:

“May God have mercy on them, for they need expect none from an outraged people and an avenging government.” Those were the words from Attorney General Charles Gregory in November 1917, when Congress enacted the Espionage Act, the very act now being used to prosecute former president Donald Trump.

Many of us in the free speech community have long denounced the Espionage Act, which was passed to crackdown on political dissidents, particularly those opposed to World War I.

In a forthcoming book, I explore the checkered history of this Act where thousands were arrested for political speech. In an age of rage, the Espionage Act is the government’s favorite weapon to use against its critics.

The Act often seems like the last refuge of the government when it lacks any other means to punish targeted persons. This includes the continued prosecution of Julian Assange for publishing classified information, an act that newspapers have regularly done throughout history to expose government lies and abuses.

In a curious way, the charges against Trump are welcomed as another opportunity for the courts to look at this insidious law. That need existed long before the raid on Mar-a-Lago.

For years, I have expressed reservations about criminal allegations raised against Trump, including the dubious prosecution by Manhattan District Attorney Alvin Bragg. However, even before the appointment of Special Counsel Jack Smith, I also stated that the real threat to Trump would come at Mar-a-Lago.

The Trump indictment hit as expected: hard and below the waterline. It includes an audiotape that portrays Trump pointing to a document that he says is a classified attack plan on Iran. In contradiction to his public claims, Trump admits that he did not declassify the document and thus could not show it to two guests. There are also pictures of documents stacked around a toilet—succeeding in matching the image of President Joe Biden storing documents next to his Corvette in his garage.

Thirty-one of the 37 counts fall under the Espionage Act, which criminalizes allegations that require a showing—under 18 U.S. Code § 793—that someone “having unauthorized possession of, access to, or control over any document … relating to the national defense” “willfully retain[ed] the same and fail[ed] to deliver it to the officer or employee of the United States entitled to receive it.”

The pictures in the indictment are clearly designed to drive home the gross mishandling of documents to the public. No one is seriously going to argue that storing documents in a ballroom or next to a commode are good retention practices.

The law references an intent either to harm the national security of the U.S. or benefit a foreign power. No one is suggesting that harm actually occurred or that Trump intended to cause such harm. However, the government is proceeding under specific provisions making mishandling (and the refusal to turn over documents) a crime. That is the harm that the government will argue.

The indictment may have revealed the motive that the government believes is behind the inexplicable refusal of Trump to turn over these documents: vanity. Trump is portrayed as showing the Iran attack documents like a trophy. That is not a great fit with the Espionage Act.

The government can read Trump’s alleged words: “I don’t want anybody looking” and “I don’t want anybody looking through my boxes, I really don’t, I don’t want you looking through my boxes.” The prosecutors may use these scenes to portray Trump like a Captain Queeg or a Gollum, jealously protecting his treasure.

However, for most citizens, retaining documents for vanity does not merit charges under an espionage (or any criminal) law, particularly if there is no showing of actual harm to national security.

The use of the Espionage Act avoided basing the case entirely on false statements or another provision—under 18 U.S. Code § 1924—that prohibits unauthorized removal and retention of classified information. That statute, however, would have put debates over classification authority that Smith clearly wanted to avoid.

The problem for Trump is that, even if the Espionage Act attack works in a challenge, it would leave six counts. That includes three counts on withholding or concealing documents in a federal investigation; two counts on false statements, and one count on conspiracy to obstruct justice.

At the end of the day, even if the government was wrong on the Espionage Act, you are not allowed to obstruct or lie to federal investigators.

In adding the 31 Espionage Act counts, the Justice Department was engaging in a familiar tactic to those of us who have handled national security and criminal cases on the defense side. It “count stacked” to try to get the jury to, at a minimum, compromise in giving it convictions on some of these counts.

In some ways, knocking out the 31 Espionage Act claims could produce a cleaner case for the jury and the country. It might also allow a court to rein in on this long-abused statute. It may even get the Congress to reconsider the mistake that it made in 1917 — and replicated in later years.

That is why the Trump indictment is historic, but it is also history repeating itself with the government reaching for this dangerously all-purpose statute.

167 thoughts on “Trump Card: The Use of the Espionage Act Revives Long-Standing Concerns”

  1. The media keeps showing the storage boxes as if to portray that everything in those boxes are classified documents. The DOJ says that Trump has approx 100 documents with “classified markings” (not that they are actually classified). That amount of documents wouldn’t even fill up a standard moving box, much less the number of boxes pictured by the media.

    Those boxes more than likely contain family personal items moved from the White House which have nothing to do with the document retention by the former President. But, it makes a good story for the media and promotes the left’s narrative.

  2. There’s something else to consider with regards to using the Espionage act, at least for me as a lay person just watching it all unfold.

    They just got through proving that the democrats including Clinton and Biden sold this “Russian Collusion” falsehood about Trump.

    I mean they proved it. It came from Clinton’s LAWYER for crying out loud that gave it to the FBI. And they pursued it even knowing this.

    So the democrats have been selling this Russian Collusion lie for years now and now we know it was all made up yet it was used to try to smear him and lower his chances of reelection in the last election. And it worked.

    And now the DOJ is prosecuting Trump for some mishandling of documents and yet here they are once again trying to accuse him of “espionage”.

    Just like they falsely tried to do the first time.

    So how can a good set of attorney’s NOT be able to show a history of this kind of targeted political persecution since they’re choosing again to try to smear a current Presidential candidate who is also a former President, with accusations of collusion and espionage? Especially when the last attempt was proven to be made up by his political opponents.

    They falsely accused him of it once. I don’t see how a court could ignore the first attempts to smear him with “espionage”. Seems like a very obvious political prosecution. But hey, what do I know?

  3. Trump said he didn’t want anyone looking through his boxes.

    What did the FBI do in their armed raid, while they looked through the boxes? They refused to have his lawyers present, or any appointed person with clearance. They pulled out his vanity magazine covers, and staged photos next to documents with classified headings in order to embarrass the former President. They dumped out the contents and photographed it, making it appear as if papers were strewn around.

    No reasonable Republican public figure would want the current FBI, operating as the heavies for the Democrat Party, to paw through their things.

    Where were these guys with Hillary’s illegal server, or when her classified information showed up on a laptop in convicted sex offender Anthony Weiner’s possession?

  4. How is it espionage for Trump to argue that he declassified documents, and to wrangle with the NA over what documents they require, having coordinated with the FBI on security measures for the storage location, but it’s not espionage for :

    -Joe Biden to have boxes of classified material in his unsecured garage
    -Joe Biden to have classified material at his think tank the Penn Biden Center, directly related to the issues it studies, and where UPenn receives millions of dollars from Chinese sources
    -Hunter Biden both quoted, and summarized, classified information in emails negotiating his pay to play scheme with Burisma and other players
    -Hillary Clinton kept classified information on her illegal server, backed it up to the Cloud, and myriad people without clearance had access to it,the%20Penn%20Biden%20Center%20initiative.

    There is a two-tier legal system, in which Democrats appear to be totally unaccountable, while the book, no, the entire library, is thrown at Republicans for doing a fraction of the same.

    This breathtaking abuse of authority and double standard should alarm anyone who cares for liberty and a fair justice system.

    1. Biden cooperated.
      Pence cooperated.
      Trump obstructed and conspired with Walt Nauta to move boxes to prevent their being searched.

      Pence is a Republican. He isn’t going to be charged. This is not about Republicans vs. Democrats. It’s about Trump’s clearly obstructive acts with national defense info. That he would do that is what should alarm people.

      1. Biden did not cooperate. Biden had a script written so that reporters could report he cooperated. He had a script written to say that Hunters laptop was Russian disinformation, He had a script written …

        The truth is Biden’s possession of the documents was illegal. His movements of those documents was illegal. His storing the documents in China Town was illegal.

        Biden is a crook. He takes money from the Chinese and others while selling America’s secrets. He lies almost always when he speaks.

        You don’t know these things because Biden had a script written for you…

      2. ..didn’t realize that ‘Anonymous’ was a great comedian… ‘Biden cooperated. Pence cooperated.’ neither was raided by the FBI . which took this action on purpose to be able to claim that Trump did not cooperate……

        1. You’ve got your timeline backwards. The FBI didn’t have to raid Biden’s or Pence’s locations BECAUSE they cooperated.

        2. He used to be a semi-regular on The Gong Show. You remember, the guy with the bag over his head.

  5. The indictment is a ploy. Nobody really wants a trial. The indictment is a cudgel to beat Trump with by the media, Democrats, and never Trump Republicans for the next year and a half. The trial will be delayed until after the election and then Trump will be pardoned by Biden, hoping to set a precedent for his pending legal problems.

    1. Or, just maybe, the indictment of Trump is dismissed due to prosecutorial misconduct, Trump wins back the White House, and Joe Biden is indicted and convicted for soliciting and accepting bribes from foreign governments and foreign-owned businesses.

    2. It’s rather doubtful that Joe Biden will either be alive in 2025, or capable of coherent thought. He just said “God save the Queen” in closing his speech. The poor man is suffering serous cognitive decline. When one compares video of him speaking today, with 15 years ago, the difference is staggering.

  6. If this case comes down to whether the DOJ complied with the Equal Protection Clause of the United States Constitution, nothing about the case matters, and Trump wins. You know, assuming the judge isn’t crooked.

    1. If judges and Justices were not “crooked,” there would have been no “fake” “constitutional” abortion rights for FIFTY —-ing years! There would have been no Civil War because secession is not prohibited and is fully constitutional, which in not subject to “interpretation.” There would be no consideration of “gun laws.” There would be no redistributionist, socially engineered, communist welfare state or “regulation” of free Americans and their free enterprises. There would be no 5th-Amendment-violating forced busing, forced integration, non-discrimination laws, fair housing laws, affirmative action, quotas, etc., ad infinitum.







    Article II, Section 1

    The executive Power shall be vested in a President of the United States of America.

    The President alone wields the executive branch power of classification, declassification and archiving of materials.

    The legislative branch has no legal basis to usurp any aspect, facet or degree of the power of the executive branch.

    No legislation usurping the power of the executive branch is constitutional.

    No legislation usurping the power of the executive branch to classify, declassify and archive material is constitutional.

    Archiving occurs in perpetuity after the President with the power designates a modality, for example, “I will keep my materials next to my Corvette in my garage.”

    Joe Biden and Merrick Garland may charge and prove that President Trump engaged in “…levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.”

  8. The Canaries in the coal mine are dying (Ted Kaczynski, Daniel Ellsberg, Roger Payne)

    𝐃𝐚𝐧𝐢𝐞𝐥 𝐄𝐥𝐥𝐬𝐛𝐞𝐫𝐠, 𝐏𝐞𝐧𝐭𝐚𝐠𝐨𝐧 𝐏𝐚𝐩𝐞𝐫𝐬 𝐰𝐡𝐢𝐬𝐭𝐥𝐞𝐛𝐥𝐨𝐰𝐞𝐫, 𝐝𝐢𝐞𝐬 𝐚𝐠𝐞𝐝 𝟗𝟐
    Analyst who leaked studies showing US government knew the Vietnam war was un-winnable became activist and writer ~ 06/16/2023

  9. Jonathan: Speaking of “Trump card” did you see the latest reporting in the Washington Post? In the fall of 2021 Christopher Kise, one of the attorneys representing Trump at the arraignment on Tuesday in Miami, approached Trump and asked him the following, in so many words: “Look Donald, if you don’t turn over all the docs the government is seeking you may be criminally charged. I want you to give me the authority to approach the DOJ/FBI and see if we can settle. You will agree to return everything, apologize and I think I can get them to drop the matter”.

    Trump rejected his attorney’s advice. Why? Because Trump was listening to his demons and the advice of one his close political advisors–one Tom Fitton. Fitton is not a lawyer but the head of Judicial Watch, a right wing org. Fitton whispered into Trump’s ear: “All the docs belong to you under the PRA. You have every right to keep them”. Fitton was a “Mad Hatter” because he told Trump wanted to hear.

    What is the lesson from this? Don’t listen to the Rasputins” who whisper into your ear.

    1. Trump rejected his attorney’s advice. Why?

      Because the Documents as per the PRA are his.

      1. That’s not true, both because some of these documents are not Presidential records in the first place, and because the PRA defines personal records narrowly and declares all other Presidential records to belong to the government.

        1. Anonymous: What is it about the “other” Anonymous, and others like him on this blog, who either have not read the law or don’t understand it? Even Turley recognizes that Trump violated the PRA when he took all those presidential records back to Mar-a-Lago and then refused to return the top secret docs. But you are trying to convince the monkeys on this blog who have their hands over their ears! It’s a losing cause.

        2. PRA defines personal records narrowly

          What you mean, the legislative branch defines PRA. Over ruling the Executive Branch decisions concerning executive branch papers.
          That is a violation of Constitutional separation of Powers, and ignores. “The executive Power shall be vested in a President of the United States of America.”

        3. The PRA is civil, not criminal , and there is zero enforcement power. At best they might ask for judicial review, but no judge is getting in the middle of a meaningless pissing match.

    2. “Fitton whispered into Trump’s ear: ‘All the docs belong to you under the PRA.'”

      Someone should have whispered into Hillary’s and Biden’s ears: None of those docs belong to you, because you were never the “P” in PRA.

    3. True. But it’s always a matter of which Rasputin. Court whisperers are everywhere. Sometimes they are people you appointed and trust.

  10. Presidential Security Clearance (PSC). It comes with the Office. There is no Constitutional anything that says former Presidents loose that highest-level classified clearance authority at the end of their term – EXECPT if that clearance is reduced or revoked by the current (sitting) president. This means former presidents can’t be charged with possession, accessing or handling of classified anything types of crimes. Nor for alleged crimes for not giving them back just because a current or former underling wants them.

    Mere possession of classified materials is a not crime and certainly not espionage. Nor is a former president not returning them, ‘because we say so’, espionage.

    Does anyone know why Turley has yet to address this part of DOJs alleged case? Surely, he has some thought on the matter.

    1. “There is no Constitutional anything that says former Presidents loose that highest-level classified clearance authority at the end of their term”

      They only have the authority during their term as President by virtue of the office, and unless the next President extends it, it goes away when they leave office. Biden did not extend Trump’s security clearance.

      “This means former presidents can’t be charged with possession…”

      No, it doesn’t mean that.

      1. it goes away when they leave office. Biden did not extend Trump’s security clearance.

        Thats a lie,

          1. I came here for an argument. That’s just contradiction. An argument is a connected series of statements intended to establish a proposition.

            1. Iowan doesn’t didn’t make an argument, and I’m not going to waste my time making one in response to his non-argument.

      2. They only have the authority during their term as President by virtue of the office,

        I remember when the President wanted to cancel Clappers security clearance and the left claimed the President could not.

        That proves that the clearance follows the out going office holder.

        Unless you have proof Biden has cancelled Trumps clearance, he legally held all those classified papers that he declassified. As usual you have no clue.

        1. As I pointed out, the President is able to read classified docs by virtue of the office, unlike Clapper, who obtained a security clearance. As usual, you project your own ignorance.

          1. You typed words….they just have no context for this subject.
            The last Obama Executive Order makes to mention of the President losing clearance upon leaving office….since no other President had lost theirs.

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