Espionage Act – Heist or Haul of America’s Secrets?

August 25, 2022 -The question remains, Was Donald Trump violating the Espionage Act and other statutes by wrongfully retaining important government and national security documents classified or not? On all fronts, it doesn’t look good for the former president, but like everything and anyone else, he is innocent until proven guilty, right?

Well some of the federal statutes invoked by his “retention” of government documents may just require possession, what is called a per se violation of the law. That is, on its face, without more, having a highly classified or national security document in one’s possession is enough to charge and later find one guilty under such statutes. A comparison can be made as to going through a stop sign without stopping – that is referred to as a “per se” violation of the law – because the law was broken and nothing more. Intent to break the law is not required.

However, under the statutes triggered by the former president’s retention of documents – it appears the government is claiming there was a “wrongful retention” of  classified and even “top secret” documents –  whether intentional or not  – that no one, including a former president, has no right to keep.Then there are questions of willful and knowing intent to keep or obstruct justice, by thwarting or stonewalling rightful access when the government comes calling, as compared to the lower standard of negligence in retaining possession. All of these issues are criminal, and all must be fully explored to understand why, and how the former president was able to circumvent the traditional and longstanding “archival process” –  to literally move boxes of stuff out of the White House, when moving day rolled around.

It seems rather absurd that one can simply wander away with boxes and boxes of classified documents, load them on a truck or plane, with no one checking or saying a word. It’s like the TSA agent waving you in, without first checking your luggage of even asking you a question. It’s also like having your college dorm roommate backup the rental truck, moving out the furniture that was supplied by the university. At no time was it ever your roommate’s property, the university just allowed them to use it. Every college kid knows that, So why would the former president think any differently? Or when your friend let’s you borrow their car. Just because you get to use it and even admire it, doesn’t mean you can take it home and stuff it in your garage, and keep it there for posterity. Same with a library book. Under all these scenarios, one can be charged with unlawful taking or “conversion” of personal property – where the wrongdoer tries to convert property that is not theirs, with the hope or irrational belief that it is theirs or someday  become their own. Finders’ keepers is not the law in situations like these, and is unlawful conduct in and of itself. Surely, if the former president had any doubts as to who owned those boxes, he could have asked one of his many attorneys.

These types of scenarios become more dire when one squirrel’s away secret, confidential and highly classified documents that can compromise national security. Surely, no one could think it’s a good idea to keep that kind of stuff in one’s basement – especially a basement in Florida, where sinkholes and flooding are commonplace. If no one recalls, just a few years back in 2017, a major sinkhole was reported right in front of Trump’s Florida resort. I don’t know about anyone else, but I certainly don’t keep old photographs and college books even in my own private basement, and I certainly don’t live in Florida. Even with the best of intentions, mold and mildew will comprise them – if not a foreign source.

So the next question would be, Why would someone want to take important stuff of any kind, and stuff it in a basement where the potential for natural disaster, if not access by nefarious foreign actors would be most obvious? All of this is perplexing at best, but let’s take a look at the statutes the former president “may” have violated:

The Espionage Act – What is it and How it Works…

Under 18 USC §793 – Gathering, transmitting or losing defense information, and in particular section (d) which states:

(d) Whoever, lawfully having possession of, access to, control over, or being entrusted with any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted or attempts to communicate, deliver, transmit or cause to be communicated, delivered or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it on demand to the officer or employee of the United States entitled to receive it; or

(f) Whoever, being entrusted with or having lawful possession or control of any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, note, or information, relating to the national defense, (1) through gross negligence permits the same to be removed from its proper place of custody or delivered to anyone in violation of his trust, or to be lost, stolen, abstracted, or destroyed, or (2) having knowledge that the same has been illegally removed from its proper place of custody or delivered to anyone in violation of its trust, or lost, or stolen, abstracted, or destroyed, and fails to make prompt report of such loss, theft, abstraction, or destruction to his superior officer—Shall be fined under this title or imprisoned not more than ten years, or both.

Under 18 USC § 1519, Destruction, alteration, or falsification of records in Federal investigations and bankruptcy, states:

Whoever knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States or any case filed under title 11, or in relation to or contemplation of any such matter or case, shall be fined under this title, imprisoned not more than 20 years, or both.