The Espionage Act Isn’t the Right Statute to Criminalize Trump

If the US government can prove allegations in its indictment of former President Donald Trump for mishandling national defense information and obstructing justice, there’s no question the prosecution is righteous under current law. People have done significant prison time for having done far less.

The documents he retained concern some of the nation’s most sensitive secrets—with details about US and foreign nuclear and military capabilities, US foreign intelligence collection, military contingency planning, and more.

The former president retained these documents longer than he was entitled to have them and stored them in insecure locations. He also showed them to individuals who lacked security clearance, and actively impeded Justice Department efforts to recover them.

He has potentially endangered US national security, damaged relationships with close allies that entrust the US with secret information, and threatened the lives of intelligence community assets around the world. This behavior is unacceptable from a former commander in chief.

Problem With the Espionage Act

But this unprecedented indictment calls attention to profound flaws in one of the relevant criminal statutes: the Espionage Act.

Trump is charged with 31 counts (one for each document itemized in the indictment) of violating 18 U.S. Code § 793, which makes it a crime for anyone “having unauthorized possession of, access to, or control over any document … relating to the national defense” to “willfully retain[] the same and fail[] to deliver it to the officer or employee of the United States entitled to receive it.”

Three categories of individuals might run afoul of this provision. First are spies—individuals actually engaged in espionage in the service of a foreign power. Second are whistleblowers—people who retain secret information to publicly expose what they believe is government waste, fraud, or abuse. Third are individuals with a purely personal motive to keep information—perhaps they have an obsession with classified information, maybe they want to use it to impress their friends, or possibly even they can’t explain their motive.

The Espionage Act surely is intended to apply to spies. Trump’s prosecution provides an opportunity to ask, however, whether individuals in the second and third categories are appropriate targets of Espionage Act prosecution. Regardless of the nature of the underlying charges, alleging a violation of the act inflicts enormous costs on a defendant—costs to reputation and career prospects, and the financial costs of mounting a defense—even if the charges are ultimately dropped or the defendant is acquitted.

Imposing such costs on those actively seeking to do the nation harm is not something to lose sleep over. But the inartfully drafted Espionage Act, enacted in 1917 and remaining largely in its original form, is arguably overbroad and ambiguous.

The starkest example of this problem is that the act fails to require a specific intent either to harm the national security of the US or benefit a foreign power. Its scope isn’t limited to individuals engaged in what we actually consider espionage.

As a result, the Espionage Act has been a powerful government tool to prosecute individuals in that second category—whistleblowers. Consider Thomas Drake, a former National Security Agency official who was prosecuted under the act for leaking unclassified information to a reporter to expose what he believed to be unconstitutional surveillance of Americans.

After years of legal wrangling, the government dropped all Espionage Act charges against Drake. The victory was somewhat hollow, however, as the ordeal bankrupted Drake and cost him his government job and pension.

Reality Winner, an NSA contractor, was sentenced to over five years in prison under the act for sharing one document about Russia’s 2016 election activities with a reporter because she thought Americans were being misled.

Edward Snowden remains under indictment on multiple Espionage Act charges for his massive 2013 leak of information about NSA activities. Whatever one thinks of Snowden’s actions, he acted to reveal objectively problematic (and arguably unlawful) NSA surveillance of Americans.

The list goes on. Unfortunately, efforts to amend the Espionage Act to limit its reach to behaviors traditionally conceived of as espionage have failed.

Eschewing use of the Espionage Act in cases that don’t actually involve spying doesn’t mean that mishandling of information potentially damaging to national security should or would go unpunished. There are many tools available to address such concerns that don’t bear the “espionage” label.

Take, for example the recent case of Jack Teixeira, the Massachusetts airman who shared numerous classified documents with his friends on a Discord server. He’s charged under the Espionage Act, but also faces charges under 18 U.S. Code § 1924, which prohibits unauthorized removal and retention of classified information.

Other potentially relevant statutes are theft of government property and unauthorized use of a government computer. And if Congress finds that existing provisions prove insufficient, it can act to fill those gaps.

Which of the three categories of Espionage Act violators Trump falls into we may never know—to date his motive remains obscure. But as inexcusable as Trump’s behavior appears to have been, unless he’s proven to have given sensitive information to foreign governments, his alleged mishandling of these documents doesn’t make him a spy, and the US Code shouldn’t label him as such.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Author Information

Emily Berman is a law professor at University of Houston Law Center, with a focus on separation of powers challenges that arise in the constitutional, statutory, and regulatory regimes governing national security policy.

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