What is Espionage Act and what might it mean for Trump?

In all, the former US president faces 37 criminal counts, 31 of which relate to secret or top secret classified documents. He is also charged with obstructing justice, conspiracy, concealment and false statements.

What is the Espionage Act?

The Espionage Act was first passed in 1917 during World War I as a way to stifle dissent against the war and spying efforts, which prohibited disclosing national defense information that could harm the US.  In 1918 and 1921 it also carried amendments that outlawed writing or “utter[ing]” any “disloyal, profane, scurrilous, or abusive language” against the United States.

Over the years, this law has been used as a legal tool by the US administration to prosecute people ranging from suspected Soviet spies to famous whistleblowers like Daniel Ellsberg, who leaked the Pentagon Papers, and Edward Snowden, a former intelligence consultant who leaked classified National Security Agency records to reveal the existence of a domestic surveillance program.

Julian Assange, Wikileaks founder, was also charged under the Espionage Act. He is fighting extradition to the United States.

How does the espionage act apply to Trump?

Special Counsel Jack Smith of The Department of Justice filed charges against Donald Trump after the FBI searched the Florida resort where the former president lived in August 2022. The search located about 13,000 government records, about 100 of which were marked as secret or top secret. The prosecutors say the former president improperly retained 337 classified records.

Trump rejected the claim, arguing that he declassified the records in question and that his broad presidential powers gave him the authority to disclose or declassify materials. Neither Trump nor his attorneys have provided any evidence to suggest that the said documents were ever declassified.

Prosecutors have charged Trump with violating a section in the Espionage Act which applies to someone who has “unauthorized possession” of national defense information.

What will prosecutors have to prove to a jury?

To obtain a conviction against the former president, the government will need to prove beyond a reasonable doubt that he willfully retained the material and failed to turn it over to the government.

The government is likely to put all the evidences of the steps it took to get the records returned. This includes a year-long effort by the US National Archives and Records Administration, which repeatedly reached out to Trump through his attorneys to request that he return missing records. Even after the Justice Department tried to retrieve the remaining records with a subpoena, Trump only handed over an additional 38 pages marked as classified.

It took a court-approved search warrant before the FBI was able to retrieve the bulk of the records that remained.

The government will also present evidence from Trump’s own attorney. The indictment alleges that the former president tried to get his own attorney to lie to the government about the existence of the records. He even asked the attorney to destroy or hide the documents.

What is the punishment for violating the Espionage Act?

The penalty for being convicted of espionage under the Espionage Act is a fine of $10,000 or less and imprisonment for twenty years or less. Both the fine and the prison sentence could be imposed in conjunction as well.  

Updated: 12 Jun 2023, 03:31 AM IST