What is the Espionage Act?

The Department of Justice is investigating former President Donald Trump for potentially violating the Espionage Act, according to a search warrant which the FBI used to seize documents, including classified documents, from his Mar-a-Lago residence.

The most notorious spies were prosecuted under the Espionage Act of 1917, including Robert Hanssen and Aldrich Ames, who are serving life sentences for spying for Soviet and Russian intelligence while they worked for the FBI and the CIA respectively.

But while Hanssen and Ames have been charged under Section 794 – collecting or providing defense information to assist a foreign government – ​​Trump is under investigation for potential violation of Section 793 — the collection, transmission or loss of defense information, which also includes the refusal to return information required by the government.

The distinction is that Trump — so far as is publicly known — is not under investigation for providing national defense information to a foreign government with intent to harm the United States or harm the United States. helping a foreign nation, or traditional espionage, according to experts who spoke to CBS. New.

Although provision 793 of the act refers to the “transmission” of defense information, it refers to “any method of moving the document from a secure location to an unauthorized party or an unsecured location”, a said national security attorney Brad Moss.

Section 794 also carries a much harsher penalty of up to life in prison or the death penalty. The provision Trump is being investigated for carries a maximum sentence of 10 years in prison.

How authorities use the Espionage Act

Despite its name, the Espionage Act is not limited to traditional espionage. It is also used as a vehicle to prosecute cases of mishandling of classified information.

“The fact that it’s still called the Espionage Act is really confusing to most people, because the law generally has nothing to do with espionage at this point,” Moss said. “It should be renamed the Official Secrets Act, not the Espionage Act.”

Congress enacted the Espionage Act on June 15, 1917, two months after the United States entered World War I, to stifle dissent from American involvement in the war. Nowadays it has been used against those who divulge classified information and those who remove classified information from secure facilities and store it at home.

Trump is not the only high-profile political figure to be investigated under the Espionage Act.

Former FBI Director James Comey controversially decided not to press charges against former Secretary of State Hillary Clinton under the Espionage Act for his private email server because he didn’t there was insufficient evidence of willful intent or gross negligence. Dozens of emails containing classified information were hosted on the server.

“The question for the Department of Justice was, did she create this private server with the intention of people sending her unmarked classified information? And did she have reason to suspect that the information contained in these e- emails were in fact classified?And they concluded there was not enough evidence of that,” Moss said.

After sharply criticizing Clinton for his handling of classified information, Trump signed legislation that made the mishandling of secret files a misdemeanor into a felony.

Former CIA Director David Petraeus has admitted to keeping classified information at home, which he shared with his biographer with whom he was having an affair, while lying to the government about releasing all this information .

“I think this is one of the closest precedents to where we are today,” said Ryan Goodman, a law professor at New York University. “And it’s also the one in which Petraeus could have been accused of the misrepresentation, which is very similar to Trump potentially being accused of [obstruction].”

Other laws implicated in the investigation

According to the search warrant, Trump is also being investigated for two other potential crimes unrelated to the Espionage Act. They include 18 USC 2071, involving the removal, falsification, or destruction of public records; and 18 USC 1519, obstruction of justice. The latter carries a maximum prison sentence of 20 years, double what someone faces under Section 793 of the Espionage Act.

In January, the National Archives and Records Administration said it had recovered 15 boxes of Mar-a-Lago recordssome of which contained classified national security material. He then asked the Department of Justice to investigate. This led the FBI to execute a search warrant Monday at Mar-a-Lago, with officers seizing 11 sets of classified documents, including four sets classified as “top secret”. Trump claimed that all documents had been declassified.

Goodman said the obstruction law isn’t necessarily limited to obstructing a Justice Department criminal investigation, but it could apply to the National Archives’ ability to collect presidential records.

“It may well be that what the Department of Justice has in mind is not obstruction of an investigation, but simply interference or obstruction in the ability of the National Archives to properly administer government records, presidential records “, did he declare.

Whether the Justice Department decides to bring charges under the Espionage Act against Trump ultimately comes down to intent, Goodman said.

“Trump adds in some ways to the incriminating evidence by claiming that he declassified information because then it shows he has knowledge of the contents of the documents,” Goodman said.

Goodman and Moss noted that the Mar-a-Lago documents do not need to be classified for the Espionage Act to apply.

“I personally don’t anticipate the government bringing such a case here unless the information is something that they can also prove has been classified,” Moss said. “It’s not something I see them trying with the former president.”

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