Did Trump Violate the Espionage Act?
New reporting suggests that he did, and that the case is reaching a decision point
Earlier this week, I discussed how signs were pointing to a likely indictment against Donald Trump on charges of obstruction of justice. This was evident from the timeline of how Trump apparently sought to mislead his own attorney, Evan Corcoran, in the search for missing top secret and other classified documents.
Today, I want to peel back another layer of the legal onion and look at another charge against Trump that some experts now point to as possible or even likely: espionage.
It’s probably not the kind of James Bond espionage, where the nation’s crown jewel secrets are stolen by brilliant spies and then clandestinely passed along to its most feared enemies. It’s more like Maxwell Smart espionage—clumsy and absurd—but still, “espionage.”
Let me explain.
The Espionage Act
In the warrant to search Mar-a-Lago, the Justice Department listed three crimes for which it believed evidence was at Trump’s Florida resort residence. In the section titled “Property to be Seized,” the Department stated,
All physical documents and records constituting evidence, contraband, fruits of crime, or other items illegally possessed in violation of 18 U.S.C. §§ 793, 2071 , or 1519.
I wrote about Section 1519 (obstruction) on Monday. Section 2071 is a fairly mundane statute that relates to the removal or concealment of government records. And Section 793, which we’ll dive into more today, is the Espionage Act. And it’s juicy.
That Act dates back to 1917, and most of it covers the kind of spy stuff you’d expect. Section (a) talks about obtaining national defense information to hurt the U.S. or help foreign nations; Section (b) prohibits making copies or stealing national defense information; Section (c) focuses on those who receive such information. Those sections aren’t directly at issue here, at least not based on anything we currently know.
Section (d), however, is problematic for the ex-president. It prohibits willful communication of national defense information to any person not entitled to see it. It also prohibits willful retention of national defense information and the failure to return it on demand to the U.S. government.
Simply put, an Espionage Act charge could be made against Trump if he willfully communicated or retained national defense information.
What we know: willful retention
When lawyers for the Justice Department went to Judge Beryl Howell seeking to put attorney Corcoran on the stand, they argued that, because Trump had used Corcoran to help commit a crime, there was an exception to the attorney-client privilege and Corcoran should have to testify. The judge, in a sealed opinion, agreed, and she ordered Corcoran to give sworn answers before the grand jury.
One crime that Trump likely committed was obstruction of justice. But as new reporting by the New York Times on Thursday revealed, another likely one was espionage. In her opinion ordering Corcoran to testify, Judge Howell reportedly stated,
Other evidence demonstrates that the former president willfully sought to retain classified documents when he was not authorized to do so, and knew it.
See those key words? Willfully sought to retain. Now that you know what Section (d) of the Espionage Act requires, you’ll see that Trump is indeed in big legal trouble: A federal judge has found it is more likely than not that Trump willfully retained classified documents. She further found he knew that he was not authorized to do so.
If the Times reporting is correct, that likely constitutes a violation of Section (d) of the Espionage Act. Does it prove it beyond a reasonable doubt? No, and we’re not there yet. But if they can convince a federal judge that Trump committed this crime, they can probably convince a grand jury of it.
So what might some of that evidence Judge Howell mentioned be? The Washington Post reported Thursday that two Trump Organization employees—his valet Walt Nauta and an unnamed person who is cooperating with investigators—moved boxes of papers to a storage room the day before the FBI came to Mar-a-Lago on a scheduled visit, then packed up an SUV the day after—though it isn’t clear with what. That’s a pretty suspicious timeline.
Let’s look at it more closely as it unfolded.
In May 2022, Trump receives a grand jury subpoena for all remaining government documents, including classified and top secret documents, that he took with him after leaving the White House.
Sometime later, Trump learns that the FBI’s head of counterintelligence, Jay Bratt, is coming to collect any remaining classified documents. Trump has Corcoran conduct a search, but he limits where he is allowed to search.
On June 2, the day before Bratt’s visit, as seen in security video footage, Trump’s valet, Walt Nauta, and an unnamed employee load boxes onto dollies and then into a storage area.
On June 3, Bratt comes and visits Mar-a-Lago. He is handed a Redweld folder and an affidavit sworn to by Trump’s attorney Christina Bobb that a “diligent search” was conducted and there are no other responsive documents.
On June 4, the day after Bratt leaves, the employee helps Nauta pack up an SUV, and Trump leaves for Bedminster for the summer.
Nothing to see here!
What we know: willful communication
The Washington Post also reported that prosecutors have evidence that Trump would keep classified documents in his office in places visible to others, and that he would sometimes show the documents to people. It isn’t clear whom he showed what, but if this fact is supported by eyewitnesses, it also comprises a likely violation of the Espionage Act.
This is because it is illegal not just to retain such information but to communicate it to persons not authorized to see it. If he did it willfully—that is, intentionally and with knowledge—then each instance is a potential violation.
Trump has argued that the documents belong to him, not the government, and that he declassified all of them, maybe even by thinking about it only. Therefore, he claims, it was not a violation to retain them or to communicate them to others. This is absurd and contrary to the evidence, but nevertheless, this is one of his defenses.
No matter, because the Department has been very careful. Importantly, none of the statutes listed in the search warrant as possible underlying crimes requires any showing that the documents actually be “classified” in order for the laws to have been violated.
For espionage, for example, it is sufficient that the documents are “relating to the national defense”—not that they are “classified.” (This makes sense, because the Espionage Act of 1917 predates the modern classification system.) As explained by Professor Heidi Kitrosser in Lawfare, this has meant, according to relevant court cases, two things:
they are “closely held” in that they “have not been made public and are not available to the general public,” and
the disclosure must be “potentially damaging to the United States or useful to an enemy of the United States.”
Trump can try to claim, for example, that he declassified nuclear weapon capability information, which reportedly was among the documents retrieved. But irrespective of what Trump claims or even did, such information remains “closely held” and “potentially damaging.” That’s why it’s labeled “Top Secret” after all.
Even assuming charitably that Trump was simply showing off classified documents, perhaps to well-heeled donors and foreign guests, this is still a grave violation of the Espionage Act because it comprises willful communication of national defense information to someone unauthorized to see it.
People in government get charged and go to prison for precisely that kind of violation. Just ask recently indicted and arrested air national guardsman Jack Teixeira, who apparently was showing off to his buddies online when he leaked classified Pentagon files.
Tick Tock, Trump
Trump’s lawyers undoubtedly understand the ex-president’s legal peril. As reported by Rolling Stone, which spoke with to two sources familiar with the matter, some of Trump’s top advisers and lawyers have told him that they expect the Justice Department to charge him for retaining highly sensitive and classified documents. Trump’s response has been to say, “What about Joe Biden?”—which shows he still doesn’t really understand how his case of willful retention and communication and of obstruction is so markedly different.
“Looks like they’re going for it,” one of the sources said. “People close to the president have discussed with him what we think is going to happen soon, and how he and everyone else needs to be ready for it … it would be crazy not to.”
Indications point to a decision on whether to indict coming not long from now. Grand jury activity, which was furious for months, ceased altogether on May 5. Trump’s team has outlined his potential defense to allies in Congress and even sought a meeting with Attorney General Merrick Garland, which he promptly denied.
These are generally the kinds of developments and moves that happen right before charges land. And based on what we already know about Trump’s efforts to mislead his own attorneys, as well as his apparent pattern of hoarding and showing off highly classified documents, it would be surprising at this point if Trump were not indicted under these two statutes.
Now, I need to be clear. I’m not saying charges are a certainty. In the law, nothing ever is, and we have to consider that Trump has skirted justice and accountability all his life. But to my eye, it looks like Special Counsel Jack Smith has finally caught up to him, and I would certainly not bet against federal indictments on the documents case.
Now that we see Putin's list of undesirables matches Trump's list of enemies, there can no longer be any doubt that he is acting as a Russian agent and has been committing treason in plain sight.
This makes me think about the translator’s notes that Trump took after he and Putin had their private meeting. Seems like another blatant violation of the NARA policies.