The Espionage Act After the Mar-a-Lago Indictment

Nine pages into the newly unsealed indictment against former president Donald Trump, special counsel Jack Smith cites several public statements that Trump made on the 2016 campaign trail about the importance of guarding classified information. In August 2016, for example, candidate Trump vowed: “In my administration I’m going to enforce all laws concerning the protection of classified information. No one will be above the law.” A few weeks later, Trump reiterated: “One of the first things we must do is enforce all classification rules and to enforce all laws relating to the handling of classified information.” 

As president, Trump was no less vocal on the topic, with his ire frequently directed at individuals who revealed unflattering information about him or his administration to the press. In response to a series of damaging stories early in his presidency, for example, Trump insisted that “That is the most confidential stuff. Classified. That’s classified. You go to prison when you release stuff like that.” Shortly after the confirmation of Trump’s first attorney general, Jeff Sessions, Trump told a group of reporters, “I’ve actually called the Justice Department to look into the leaks. Those are criminal leaks.”  Within a few months, Sessions announced that the Justice Department had dramatically ramped up the number of leaks under investigation since the end of the Obama administration, telling reporters: “I strongly agree with the President and condemn in the strongest terms the staggering number of leaks undermining the ability of our government to protect this country.”

By the end of the Trump Administration, the Justice Department had criminally charged eight individuals for leaking information to the press. Five of them were charged under the same provision of the Espionage Act—18 U.S.C. § 793—under which Trump has now been indicted. Two of the five were charged under § 793 for unlawfully retaining, in addition to leaking information.

The Trump administration’s record of Espionage Act prosecutions further casts doubt on the notion that Trump’s own indictment is a witch hunt. To the contrary, the allegations against Trump are more troubling than those against some of the individuals prosecuted under the Espionage Act during his administration. For example, one could very plausibly argue that Reality Winner acted in the public interest when she leaked a report on Russian interference in the 2016 election. According to former President George W. Bush’s former classification “czar” William J. Leonard, Winner’s leak—for which she was sentenced to more than five years in prison—“was the first time the vulnerability of our election system to foreign interference had been brought to the attention of many Americans, including state and local election officials.” Similarly, former FBI agent Terry Albury was sentenced to more than four years in prison for disclosing Bureau practices that he considered abusive. His leaks resulted in several stories in The Intercept, including one revealing the FBI’s practice of acquiring journalists’ phone records without notifying the journalists or their news organizations. ” (Disclosure: I co-authored an amicus brief to Albury’s sentencing court in 2018, urging them to weigh first amendment interests as a mitigating factor in his sentence. Since that time, Albury and I have corresponded occasionally by email, and I consider him a friend). 

Unlike Winner and Albury, who leaked discrete pieces of information that they reasonably believed to be in the public interest, Trump is alleged to have moved hundreds of highly sensitive documents to his residence at Mar-a-Lago and to Bedminster, New Jersey after his presidency, including presidential intelligence briefing materials and information on domestic and foreign military operations and capabilities. Furthermore, there has been no indication to date that Trump planned to use the information to serve what he reasonably believed to be the public interest. The indictment alleges, rather, that Trump sought to keep the materials in his possession through a pattern of secrets and lies. It also cites two occasions in which Trump allegedly shared materials with staffers and political allies who did not possess security clearances in order to impress them. 

At the same time that the Trump administration’s prosecution record undermines the notion that Trump’s indictment is political persecution, both things should lead us to rethink the Espionage Act’s capaciousness. Indeed, the gulf between Trump’s alleged behavior and that of the media sources prosecuted by his administration  illustrates the extraordinary breadth of the act. Trump was indicted under § 793(e) of the act. Three of the media sources were prosecuted under § 793(e), one under § 793(d), and one under both provisions. Section 793(e) applies to individuals who had unauthorized access to materials “relating to the national defense” and either willfully conveyed it to “any person not entitled to receive it,” or “willfully retain[ed] the same and fail[ed] to deliver it on demand to the officer or employee of the United States entitled to receive it.” Section 793(d) is virtually identical, but applies to those who accessed the materials lawfully. Courts have narrowed this far-reaching statutory language only slightly over the years. They have read two requirements into the term “relating to the national defense”: The materials must be “‘closely held in that [they] . . . have not been made public and are not available to the general public,” and their disclosure must be “potentially damaging to the United States or [potentially] useful to an enemy of the United States.” Courts have also interpreted the act’s willfulness requirement to signify a knowing violation of the law. Finally, although the Espionage Act does not mention the classification system, which predated the act’s passage,  courts have used classification status to inform their assessment as to whether materials were “closely held,” and to determine who was “entitled to receive” information. 

The Espionage Act’s capaciousness further betrays the emptiness of claims that the special counsel’s indictment marks an unprecedented act of persecution against a man who has done no wrong in the eyes of the law. It also lays bare what these complaints really are—a call not to treat a former president fairly, but to treat him better than others precisely because of his status as a former president and still-active political figure. As Smith said in a press conference last week, “We have one set of laws in this country and they apply to everyone.” 

At the same time, the current moment is an opportune one in which to reevaluate the Espionage Act’s breadth. The act leaves the door open for prosecutors to target a stunningly wide array of actions that entail conveying or retaining classified information. These actions include outright spying, and, yes, piling boxes and boxes of classified information into bathrooms and ballrooms in one’s largely unsecured luxury resort and refusing to return them upon request. However, the act also can extend to revelations to the press and the public regarding government lies and abuses.

The use of the act to target media sources is a fairly recent development. Between its enactment in 1917 and the end of the George W. Bush administration, the act had only been applied in this way on three occasions. For reasons not entirely clear—though surely related in part to technological changes that make it easier for the government to find leakers—such uses of the Espionage Act increased dramatically during the Obama administration, a practice that the Trump administration enthusiastically embraced. More concerningly still, the Trump administration became the first to use the act against a publisher of information when it indicted Julian Assange in 2020. The Biden administration continues to seek Assange’s extradition to the United States, despite calls by press freedom groups to drop the charges against him.

There is no magic formula that will strike a perfect balance between the secrecy that national security requires and the transparency that fuels a healthy democracy. But recent prosecutions and indictments have revealed the 1917 Espionage Act for what it is: a blunt, rusty old instrument. An amended version of the legislation should make the public’s interest in any leaked information a relevant factor, whether by prescribing a balancing test for courts to apply or creating a public interest defense against liability. Courts, too, can play a role, by paying more attention to the First Amendment interests at stake at both liability and sentencing phases in cases involving media leaks that implicate the public interest. 

Since news broke of Trump’s indictment, many commentators have remarked that the indictment, whether right or wrong, marks a sad day for our country. Perhaps so, but it is also an occasion for hope. For one thing, the indictment backs up Smith’s assertion that no one, however high in status, is above the law. But looking ahead, the Trump indictment may also precipitate the reexamination of an old law that does a poor job of serving another American ideal: that of an informed citizenry and a vibrant press.