« Michael McConnell: Impeachment and Trial After Officials Leave Office
Michael Ramsey
| Main | Alex Reinert: Qualified Immunity's Flawed Foundation
Michael Ramsey »


Ex-Officials and the Espionage Act [Updated]
Andrew Hyman

On the day after it happened, I wrote a blog post here about The FBI Raid on Ex-President Trump.  Since then, the search warrant issued by the magistrate judge has been released, along with a list of items seized.  The warrant relies upon the following three named statutes: 18 U.S.C. §§ 793, 2071 , and 1519.  Prior to release of this information, the statutory grounds for the search were not as clear as they are now.  
The pertinent part of that first statute is probably 18 U.S.C § 793(f), which dates back to the Espionage Act of 1917.  This was the same law that FBI Director James Comey decided in July of 2016 did not apply against former Secretary of State Hillary Clinton based on his argument that she had been "extremely careless" instead of "grossly negligent," which was a doubtful distinction from an originalist point of view.  Comey elaborated:
In looking back at our investigations into mishandling or removal of classified information, we cannot find a case that would support bringing criminal charges on these facts. All the cases prosecuted involved some combination of: clearly intentional and willful mishandling of classified information; or vast quantities of materials exposed in such a way as to support an inference of intentional misconduct; or indications of disloyalty to the United States; or efforts to obstruct justice.
Trump seems better situated than Clinton, in that he was in charge of classification and declassification when the items in question were removed, as I discussed in my blog post earlier this month.  I do not see much of a distinction between being grossly negligent and extremely careless from an originalist point of view, and so I would not suggest that Trump was the latter instead of the former, but being grossly negligent with documents is not enough to violate the Espionage Act.  The early history of the Espionage Act should give pause to anyone who might want to stretch it in the name of justice.  Consider this passage by Professor Geoffrey Stone:
John Lord O'Brian, the Head of the War Emergency Division of the Department of Justice, observed shortly after [WWI] ended that "immense pressure" was "brought to bear throughout the war on the Department of Justice in all parts of the country for indiscriminate prosecution" of dissenters and for "wholesale repression and restraint of public opinion." It was, he added, in this "atmosphere" of passion, patriotism, and clamor that the laws “affecting 'free speech' received the severest test thus far placed upon them in our history." The Department of Justice invoked the Espionage Act of 1917 to prosecute more than two thousand dissenters during the war for allegedly disloyal, seditious, or incendiary speech.
Professor Stone elaborates: "As the congressional debate suggests, the legislation, as enacted, was not a broadside attack on all criticism of the war. It was, rather, a carefully considered enactment designed to deal with very specific military concerns."  In other words, had the Department of Justice stuck with that original meaning, the nation could have been spared great trauma.   There’s little doubt that DOJ is under great pressure now to prosecute Trump under the Espionage Act, just like DOJ was under pressure to prosecute under that Act during WWI, and again depart from the original meaning. Consider the text of § 793(f) of the Espionage Act (emphasis added):
(f) Whoever, being entrusted with or having lawful possession or control of any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, note, or information, relating to the national defense, (1) through gross negligence permits the same to be removed from its proper place of custody or delivered to anyone in violation of his trust, or to be lost, stolen, abstracted, or destroyed, or (2) having knowledge that the same has been illegally removed from its proper place of custody or delivered to anyone in violation of its trust, or lost, or stolen, abstracted, or destroyed, and fails to make prompt report of such loss, theft, abstraction, or destruction to his superior officer
Shall be fined under this title or imprisoned not more than ten years, or both.
Donald Trump never had a superior officer, and so § 793(f)(2) clearly cannot apply. Moreover, § 793(f)(1) apparently does not apply either, because it prohibits removal from a proper place, but not storage in an improper place, and when Trump removed it he was president and had considerable discretion to determine whether he was moving the material from a proper place to an improper place.  All of this on top of the fact that Trump was in charge of declassification when the documents were removed from the White House. Lest I be misunderstood, I do not think a proper place in 2025 for this ex-president would be in the White House, but it may well be that this FBI raid and huge attendant controversy will end up bringing that about.
UPDATE by Andrew Hyman: On August 18, 2022, a document was unsealed indicating that the part of the Espionage Act relied upon by the FBI is not 18 USC 793(f) as I previously assumed in this blog post, but rather 18 USC 793(d) or 18 USC 793(e) which both address "Willful retention of national defense information." Subsection “d” involves retention of material by a person who lawfully possesses it and receives a demand for its return, whereas subsection “e” involves retention of material by a person who does not lawfully possess it.  I have no idea whether the government means to rely upon subsection “d” or instead subsection “e” so I won’t guess, but I will note that both of these subsections require a determination as to whether the documents include “information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation….”  It seems obvious from the context that this determination depends on various factors such as: (1) whether the possessor intended to communicate the information to recipients who might misuse it to harm the national defense, (2) what security precautions the possessor has taken, and (3) whether the information was ever formally or informally declassified by the possessor.  I have not heard anything about any intent to communicate this information (factor 1), nor anything to suggest that any of the security precautions suggested by the FBI were ignored (factor 2), and I've already explained that an incumbent president has inherent declassification authority (factor 3).  More information will likely be unsealed in this matter, so there’s no point in speculating.