Espionage Act: What you need to know about the law Donald Trump may have broken

The  federal court-authorised search  of former president Donald Trump’s Florida estate has brought renewed attention to the obscure but infamous law known as the  Espionage Act of 1917 .

A section of the law was  listed as one of three potential violations  of Trump under investigation by the justice department

The Espionage Act  has historically been employed most often by law-and-order conservatives.

But the biggest uptick in its use  occurred during the Obama administration , which used it as the hammer of choice for national security leakers and whistle-blowers.

Regardless of whom it is used to prosecute, it unfailingly prompts consternation and outrage.

We are  both  attorneys who specialise in  and teach national security law. While navigating the sound and fury over the Trump search, here are a few things to note about the Espionage Act.

Espionage Act seldom pertains to espionage

When you hear “espionage,” you may think of spies and international intrigue. One portion of the act –  18 USC Section 794  – does relate to spying for foreign governments, for which the maximum sentence is life imprisonment.

That aspect of the law is best exemplified by the convictions of  Jonathan Pollard in 1987 , for spying for and providing top-secret classified information to Israel;  former Central Intelligence Agency officer Aldrich Ames in 1994 , for being a double agent for the Russian KGB; and, in 2002, former  FBI agent Robert Hanssen, who was caught selling US secrets  to the Soviet Union and Russia over a span of more than 20 years. All three received life sentences. But spy cases are rare.

More typically, as in the Trump investigation, the act applies to the unauthorised gathering, possessing or transmitting of  certain sensitive government information .

Transmitting can mean moving materials from an authorised to an unauthorised location – many types of sensitive government information must be maintained in secure facilities. It can also apply to refusing a government demand for its return. All of these prohibited activities fall under the separate and more commonly applied section of the act –  18 USC Section 793 .

A violation does not require an intention to aid a foreign power

Wilful unauthorised possession of information that, if obtained by a foreign government, might harm US interests is generally enough to trigger a possible sentence of 10 years.

Current claims by Trump supporters  of the seemingly innocuous nature of the conduct at issue – simply possessing sensitive government documents – miss the point. The driver of the Department of Justice’s concern under Section 793 is the sensitive content and the connection to national defence information, known as “NDI.”

One of the most famous Espionage Act cases,  known as “Wikileaks ,” in which Julian Assange was indicted for obtaining and publishing secret military and diplomatic documents in 2010, is not about leaks to help foreign governments. It concerned the unauthorised soliciting, obtaining, possessing and publishing of sensitive information that might be of help to a foreign nation if disclosed.

Two recent senior Democratic administration officials –  Sandy Berger , national security adviser during the Clinton administration, and  David Petraeus , CIA director under during the Obama administration –  each pleaded  guilty to misdemeanours  under the threat  of Espionage Act prosecution.

Berger took home a classified document –  in his sock  – at the end of his tenure. Petraeus  shared classified information  with an unauthorised person for reasons having nothing to do with a foreign government.

The act is not just about classified information

Some of the documents the FBI sought and found in the Trump search  were designated  “top secret” or “top secret-sensitive compartmented information.”

Both classifications tip far to the serious end of the sensitivity spectrum.

Top secret-sensitive compartmented information  is reserved for information that would truly be damaging to the US if it fell into foreign hands.

One theory floated by  Trump defenders  is that by simply handling the materials as president, Trump could have effectively declassified them.  It actually doesn’t work  that way – presidential declassification requires an override of  Executive Order 13526 , must be in writing, and must have occurred while Trump was still president – not after. If they had been declassified, they should have been marked as such.

And even assuming the documents were declassified, which does not appear to be the case, Trump is still in the criminal soup.

The Espionage Act applies to all  national defence information, or NDI , of which classified materials are only a portion. This kind of information  includes a vast  array of sensitive information including military, energy, scientific, technological, infrastructure and national disaster risks. By law and regulation, NDI materials may not be publicly released and must be handled as sensitive.

The public can’t judge a case based on classified information

Cases involving classified information or NDI are nearly impossible to referee from the cheap seats.

None of us will get to see the documents at issue, nor should we. Why?

Because they are classified.

Even if we did, we would not be able to make an informed judgment of their significance because what they relate to is likely itself classified – we’d be making judgments in a void.

And even if a judge in an Espionage Act case had access to all the information needed to evaluate the nature and risks of the materials, it wouldn’t matter. The fact that documents are classified or otherwise regulated as sensitive defence information is all that matters.

Historically,  Espionage Act cases  have been occasionally political and almost always politicised.  Enacted at the beginning  of US involvement in World War I in 1917, the act was largely designed to make interference with the draft illegal and prevent Americans from supporting the enemy.

But it was immediately used to target immigrants, labour organisers and left-leaning radicals. It was a tool of Cold War  anti-communist politicians  like Senator Joe McCarthy in the 1940s and 1950s. The case of  Julius and Ethel Rosenberg , executed for passing atomic secrets to the Soviet Union, is the most prominent prosecution of that era.

In the 1960s and 1970s, the act was used against peace activists, including Pentagon Paper whistle-blower  Daniel Ellsberg . Since 11 September, 2001, officials have used the act against whistle-blowers like  Edward Snowden . Because of this history, the act is often assailed for chilling First Amendment political speech and activities.

The Espionage Act is serious and politically loaded business. Its breadth, the potential grave national security risks involved and the lengthy potential prison term have long sparked political conflict. These cases are controversial and complicated in ways that counsel patience and caution before reaching conclusions.

This article is republished from  The Conversation  under a Creative Commons license. Read the  original article .

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