news·5 min read

Former President Trump Is Being Investigated Under The Espionage Act. Here’s What That Means.

Former U.S. President Donald Trump leaves Trump Tower to meet with New York Attorney General Letitia James for a civil investigation on August 10, 2022 in New York City.
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Aug 17, 2022

On Aug. 8, the FBI raided former President Trump’s Florida home — an unprecedented move that ignited a media firestorm. And walked away with 11 sets of classified documents — many marked "confidential" and "top secret." Days after the raid, a judge unsealed the search warrant that started it all. The warrant revealed that the FBI is investigating whether Trump violated three federal laws, including the Espionage Act.

The news has many people asking: What exactly is the Espionage Act? A topic that’s sparked conversations among lawmakers about whether the law should be repealed. Here’s what you need to know.

What’s the Espionage Act?

When you think of espionage, you might think of spies. But the Espionage Act is more than that. In 1917, Congress passed the act two months after America entered World War I. Making it illegal for anyone to obtain or release national defense info that could be used to harm the US or benefit its enemies. The initial goal was to quash dissent of the US’s participation in the war. And reportedly led to the arrest of hundreds of people who spoke out against it.

But over the years, the law’s been used to prosecute people for spying. Including Julius and Ethel Rosenberg, who were executed after they were convicted of conspiring to share nuclear secrets with the Soviets. And Robert Hanssen, who was sentenced to life in prison in 2002 for handing over US secrets to Russia. 

The law has also been used to charge leakers like Edward Snowden, who leaked top-secret docs about the gov’s surveillance on Americans. And Chelsea Manning, who gave WikiLeaks hundreds of thousands of classified and sensitive military docs. 

Before your mind gets away with theories about Trump, you should know he isn’t being accused of or investigated for spying. Heidi Kitrosser, a professor at Northwestern University Pritzker School of Law, said “the act has several components.” And it’s important to separate the two sections of the Espionage Act that are getting the most play right now:

  • Section 793: This is what Trump may have violated. (But reminder: He hasn’t been charged.) It relates to gathering, losing or sharing info linked to national defense. If convicted, the punishment ranges from a fine or up to 10 years in prison, or both. 

  • Section 794: This is not what the FBI is investigating, according to the warrant. It’s focused on someone gathering or delivering defense info to help a foreign gov. Violating this could mean life in prison or the death penalty. 

Another important note from Kitrosser: “The language that the act uses is information relating to the national defense. It actually doesn't say anything about classified information.” 

What does ‘classified’ mean?

National security 101 says that there are three broad ways to classify or ID gov documents. And each one requires getting clearance to handle this info. Think: Passing background checks. The FBI actually recovered docs from Mar-a-Lago that fall into each of the following categories:

  • Confidential: The lowest level of classification. Aka info that could damage national security if it becomes public. 

  • Secret: Aka info that could cause “serious damage” to national security. 

  • Top secret: Spoiler: The highest level of classification. And could cause “exceptionally grave” damage if it got out.

This system was created after the Espionage Act was signed into law. And that’s why the law doesn’t mention “classified.” One way the legal system considers whether something is related to national defense or security is if it’s classified, according to Kitrosser. And that’s why Trump’s raid is drawing eyes. Meanwhile, press freedom advocates have raised concerns that the gov has been using a broad and vague interpretation of “national security” in other cases. Bringing us to…

Why the Espionage Act has come under scrutiny 

The Obama admin used the Espionage Act more than any other admin. Charging eight people. And thanks to tech (read: texts and emails), it’s been easier to trace potential leakers. But some advocates and politicians argue some leaks can be in the public’s interest and shouldn’t always mean espionage charges.

“The Espionage Act is actually much easier than you would think to violate. [The act] doesn't ask you really how dangerous the information is or if the public interest outweighs the danger to national security,” Kitrosser said. “So basically it catches a whole lot of stuff. It could be anything from sharing information with the American press that the American people should know. To being a spy [for another country].”

In Snowden’s case, Sen. Bernie Sanders (I-VT) has called for leniency, saying Snowden’s leak allowed “Congress and the American people to understand the degree to which the National Security Agency has abused its authority.” Note: Snowden’s been granted permanent residency in Russia, where he’s been living to escape prosecution in the US.

Meanwhile, in the aftermath of the Mar-a-Lago raid, Sen. Rand Paul (R-KY) has called for the Espionage Act to be repealed. Arguing that “the Espionage Act was abused from the beginning to jail dissenters of WWI. It is long past time to repeal this egregious affront to the 1st Amendment.”

But others worry changing it to allow people to speak out freely would put national security at risk. And where the line is drawn between public interest and actual national security risk is blurry. Sam Lebovic, history professor at George Mason University, told NPR that the law’s been used to threaten those who leak sensitive info. "Most of it is let go and allowed to happen,” Lebovic said. “Only the instances that really upset the government in power are the ones that are prosecuted."

In Trump’s case, it’s unclear what will happen next. Trump has argued the docs in his possession were declassified. But again, whether the docs are classified or not doesn’t necessarily matter. What matters is whether they could have posed a risk to national security. 

While the FBI listed three potential violations of federal law, others are wondering if Trump could be charged under a 2018 national security law. Which turned moving or keeping classified docs without authorization from a misdemeanor to a felony. The irony: Trump signed this law after criticizing Hillary Clinton’s handling of classified docs on a private email server. 

theSkimm

The Espionage Act is over a century old. For many, it’s a law that’s necessary to protect US national security. For others, it’s too broad and catches too many well-intentioned people under its net. Now, for the first known time, a former president is being investigated under the act. Only time will tell if this old law becomes yet another divide in the US's political landscape.

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