What is the Espionage Act?
The unsealing of the search warrant that the FBI executed at former President Trump’s Mar-a-Lago property revealed that the agency believes Trump may have violated the Espionage Act of 1917, among other potential crimes.
The warrant was made public on Friday after the Justice Department filed a motion to request that it be unsealed. Attorney General Merrick Garland said he made the decision given the intense public interest in the situation and because Trump chose to publicly reveal that the search occurred.
The warrant revealed that FBI agents recovered 11 sets of classified items during the search, including one labeled “various classified/TS/SCI documents,” meaning top secret/sensitive compartmentalized information.
Officials took three items labeled “confidential,” three labeled “secret” and four labeled “top secret.”
The Espionage Act makes it illegal for anyone who has information related to national defense to use it “to the injury of the United States” or “to the advantage of any foreign nation.”
Under the Espionage Act, it is also illegal for anyone who lawfully has possession of information related to national security to provide it or attempt to provide it to those not permitted to obtain it. These individuals also cannot “willfully” retain and fail to deliver documents or other materials on demand to an officer of the United States who is allowed to receive them.
Anyone convicted of violating the law could face a fine or up to 10 years in prison.
Derek Bambauer, a law professor at the University of Arizona, said the act is a “core” part of national security law and was designed to allow the government to prosecute people with sensitive information that could put the country’s national security at risk. He said it can apply to people who deliberately transfer the information to someone not authorized to have it or store it in a place it should not be.
Former President Wilson signed the act into law a few months after the United States entered World War I. The law was passed to prevent interference with the war effort or recruiting soldiers and to prevent Americans from supporting the country’s enemies during wartime.
Bambauer said the law tends to be invoked at times of “perceived crisis,” but courts typically give deference to the government in enforcing these types of laws and determining when a national security issue is considered a threat.
For the FBI’s search warrant of Mar-a-Lago to be approved, the agency needed to show probable cause that a crime had been committed and that evidence was located in a specific place. A federal judge signed off that the FBI demonstrated probable cause before the search happened.
Bambauer said a noteworthy feature of the law in this situation is that whether the information or documents are classified is “wholly irrelevant” to potential violations. The information only needs to be sensitive and a threat to the security of the country.
Trump and his allies have claimed that he declassified the documents found at Mar-a-Lago while he was still serving as president, so there is no legal issue.
Bambauer said Trump may have declassified certain information while president, but classification status is not mentioned in the law.
“The language of the law, the Espionage Act, doesn’t talk about classification at all, which is not surprising because classification, at least as a structural concept, didn’t exist at the time this was passed,” he said.
Gerry Gleeson, a lecturer at Michigan State University and former state prosecutor, said any criminal investigation into violations of this law would look at national defense, not classification status.
He said probable cause, needed to obtain a search warrant, is a different standard than beyond a reasonable doubt, needed for someone to be found guilty of a crime. He said grand juries usually issue indictments for who a U.S. attorney wants to indict in most cases, but the government needs to consider if it can prove its case beyond a reasonable doubt.
“Career federal prosecutors are serious people, and that’s a serious inquiry that they would take before they decide whether they want to pursue charges against anyone, whether it’s a politician or an individual citizen,” Gleeson said.
The Espionage Act consists of more than half a dozen provisions, each laying out different circumstances where a violation may occur. Experts said the varying levels of intent required to meet the standard of breaking the law could have implications for Trump.
Bambauer said a “state of mind” provision is common in criminal law in that some level of knowledge or intent is required. He said many of the provisions in the Espionage Act are similar, but one way they differ is in terms of state of mind.
The first provision of the law states that someone must have intent or reason to believe that the information would be used to harm the U.S. A defense could argue that someone accused of violating the law did not know the information could threaten national security, if plausible, Bambauer said.
But the sixth section states that someone who lawfully possesses a document could violate the law if they permit it to be taken from its proper place through “gross negligence.”
Bambauer said that section could be relevant in leading to charges, based on what the public knows.
Gleeson said the act makes a distinction between information and documents, with the latter requiring less intent than the former.
He said the fourth section of the act only states that a person must have reason to believe that documents or other materials could be used to harm the U.S. Part of the section also states that anyone who “willfully retains” the materials and refuses to provide them on demand from an officer or employee of the United States could face charges.
Gleeson said this part could play a role in Trump’s case based on reporting that Trump received a subpoena for national security documents months before the search took place.
“It doesn’t have to be top secret,” he said. “It just has to be information related to the national defense that could be possibly used to injure the United States.”