Espionage Act: Trump's indictment relies on an outdated statute--with a very key section.
Donald Trump's 37-count indictment has made only the slightest dent on the views of his diehard supporters, including many in Congress. They scoff at the catalogue of offenses on one or more of three grounds: (1) that it's all a "witch hunt"; (2) that Trump did nothing worse than the things Hillary Clinton did, and she wasn't indicted; or (3) the alleged offenses aren't serious.
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Who else is implicated in the indictment?
These reactions can be easily countered. To the cry of "witch hunt," one need only point to the fact that the investigation was led by a special counsel, completely independent of Attorney General Merrick Garland or President Joe Biden (though maybe Trump fans don't quite believe that).
Finally, to the point of whether the offenses are serious, the indictment makes a very strong case that Trump took the documents, conspired to conceal them, and lied to federal authorities about whether he had them. His defenders must therefore believe that his possession and mishandling of the documents posed no risk to national security--that, in other words, the documents themselves weren't particularly sensitive.
It is well known that too many documents are classified, too many are over-classified, and the penalties for mishandling of some of these documents are too severe. This is particularly true of penalties determined by the Espionage Act, a 1917 statute that forms the basis for 31 of the 37 counts in Trump's indictment.
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What is the Espionage Act?
Related from Slate Fred Kaplan The Documents Trump Hoarded Are Even More Sensitive Than We Thought Read More
The Espionage Act (18 US Code, Chapter 37) has been modified several times since 1917, but it remains an absurdly broad statute, outlawing not just espionage (as normally defined), but simple possession of a wide range of information "relating to the national defense"--including any "document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note" that "could be used to the injury of the United States or to the advantage of any foreign nation."
According to one section of the act, it is illegal to transmit the information not only to a foreign agent but to "any person not entitled to receive it." Read literally, the act could be invoked to prosecute just about any reporter who writes (or any editor who publishes) an article containing classified information.
However, it turns out that Trump is not being charged with any offense so innocuous. He is being charged under the part of the Espionage Act (Sec. 793e) that applies to anyone who "willfully retains" classified information without authority to do so and who "fails to deliver it to the officer or employee of the United States entitled to receive it." This is what Trump did when--according to other counts of the indictment--he conspired to conceal such documents and lied to authorities about having them.
More to the point, several of the documents he hoarded were very highly classified--some of them, among the most highly classified in the federal government. The special prosecutor who filed the indictment had no obligation to do so, but, for each of the 31 counts under the Espionage Act, he not only described the nature of the documents involved but also cited the level of classification.
It turns out that 26 of the counts involve documents classified above the category of Top Secret, or that are marked with codewords including SCI (Specially Compartmented Information); OCORN (meaning it can be declassified only by the originating agency, usually an intelligence agency); HCS (where the sources include human spies); NOFORN (no foreigners can see it); and others.
In nine of those cases, the indictment redacted one of the classification markings. (It says merely "[redacted].") In other words, the category of classification is so secret in that instance that its very name is classified. An intelligence officer I consulted told me that these almost certainly refer to a "Special Access Program," an activity run by an intelligence agency that only a small number of officials--even inside the agency--know anything about. Referring to the documents in Trump's possession, the officer said, "This means that he kept the cream of the crop."
The indictment noted that several other documents, marked Top Secret with the addition of several codewords, involved intelligence briefings about foreign countries or military capabilities of another country or an attack inside a foreign country.
I tend to take a jaundiced view of classified documents. In my experience of dealing with documents that were once classified, anything marked Confidential or Secret tends to be pretty harmless. Even a fair number of Top Secret documents aren't terribly sensitive. But if something is marked Top Secret / HCS / OCORN, and so forth, then it's likely to be serious. (As Barack Obama once said, "There's classified, and there's classified." This kind of stuff is really, really classified.)
Trump didn't engage in espionage, at least not according to the indictment. (He didn't have to do so, in order to be charged under the Espionage Act, one reason why the act should be extensively revised). But if he had given some of these documents to a foreign agent, they could have done considerable harm. And given their cavalier storage at Mar-a-Lago (sometimes out in the open, never in a locked room), he might as well have given them to a spy--especially since Mar-a-Lago's during Trump's presidency was a spy's dream come true.
If Trump's Republican defenders don't acknowledge any of this, if they dismiss the entirety of the indictment as partisan rubbish, they might as well confess that they don't really care about national security at all.