Did Donald Trump Break The Espionage Act?

As more information on the raid carried out at Trump’s Florida residence comes out, it turns out that the former President might be in even more trouble than initially thought

Classified document folder on a wooden table
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On Monday 8th August, after receiving sign off from both The Attorney General of the United States, Merrick Garland, and Florida State Judge Bruce Reinhart, the FBI raided Mar-a-Largo, the Florida residence of former President Donald Trump.

I covered the reason behind the Trump FBI raid before for a brief overview: after leaving office it was discovered that Trump had removed documents that should have been sent to the National Archives but had them sent down to Mar-a-Largo instead.

It took authorities several months to retrieve these documents and they then began an investigation into whether there might be more files missing.

It would appear that there were, and Trump (or at least his representatives) were visited twice in Florida and on one occasion were even told to padlock the door of a basement where it was thought confidential documents were being kept.

Now, as details of the raid unfold, it would seem that these documents could be even more damaging to Trump than previously thought.

What Was The Warrant For?

One of the controversies over the raid was that no one quite seemed to know what the warrant was for.

The embattled former President is fighting more than one legal cases at the same time, the most notable of which are for Tax Fraud in New York and Election Tampering in Georgia.

People speculated as to whether the raid was to do with one or both of those cases but after the search warrant was unsealed it stated that Trump was suspected of “violating the espionage act[1]The Hill: Trump suspected of violating Espionage Act, according to search warrant ”.

The Controversy Around The Search Warrant

In general, after a search is completed by the police, FBI etc., a copy of the warrant and accompanying paperwork is sent to the Judge who signed off on it to show it had been executed, a copy is filed with the appropriate case documents held by law enforcement, and a copy is left with the person (or their representative) who was searched.

On the 12th August 2022, Trump posted on the Truth Social site saying:

Not only will I not oppose the release of documents related to the unAmerican, unwarranted, and unnecessary raid and break-in of my home in Palm Beach, Florida, Mar-a-Lago, I am going a step further by ENCOURAGING the immediate release of those documents

"Truth" posted from Donald Trump
Original Truth here

Trump supporters and press took that as him telling the “establishment” to unseal the search warrant, hinting that they were trying to hide something by keeping it sealed.

But on August 10th, just hours after the raid, a source close to Trump reportedly acknowledges they have the warrant and they’re not going to release it[2]Vaghn Hillyard – NBC News Correspondent on Twitter.

Tweet from Vaughn Hillyard
Original tweet here

The Washington Examiner’s article “Trump calls for immediate release of sealed Mar-a-Lago search warrant, as reports suggest FBI was after nuclear secrets[3]Washinton Examiner” shows that the right-wing media were taking Trump’s narrative and running with it, without checking out the facts of the matter.

There’s two things to unpack here:

Firstly, the “documents” could not be unsealed as the FBI needed to go over them to see exactly what the content was. They’re not going to unseal something that’s top secret just after it was seized, or unseal documents that may prejudice criminal charges (or any subsequent trial).

Secondly, Trump had a copy of the search warrant. It was left at Mar-a-Largo. There is nothing (as far as I have researched) stopping him releasing the search warrant or the reasoning behind the raid that the warrant states[4]Newsweek: Trump, Classified Nuclear Files, Saudis: What We Do Know, What We Don’t.

Unless there’s something he doesn’t want to be seen of course.

The Legacy Of Trump’s False Narrative

By Thursday 11th August, it would appear that the Attorney General had had enough of Team Trump’s blustering and moved the unsealing forward which prompted Trump’s lawyers to agree to the move to unseal[5]CBS News: Trump lawyers agree to public release of Mar-a-Lago search warrant for White House documents.

The warrant was due to be released at 3pm on Friday but, I am assuming to retain some form of control of the narrative, Trump released an unredacted version of the warrant to Breitbart[6]Breitbart: Exclusive: Warrant Shows DOJ, FBI Waited Several Days After Judge Approved to Conduct Mar-a-Lago Raid which showed the name of the judge who signed off the warrant, as well as the name of an FBI Agent involved in the raid.

The Judge was then verbally attacked on social media, which was swiftly followed by Fox News going after him, airing a photo of Judge Reinhart lounging on a plane with some ice cream and Oreos while sitting next to Ghislane Maxwell.

Reinhart Photoshopped Image
Image captured from this Tweet by Aaron Rupar

While Reinhart’s links to Epstein are well documented, this photograph was an obvious fake. This fact was something that was not acknowledged at the time of broadcast, and also not something you would expect a respected “News” organisation to put out on air (I’ll be taking a deep dive into Fox News soon so watch this space!).

They offered a somewhat half-hearted retraction via Twitter but I am not sure if it was retracted on air as well (which it rightfully should be).

Apology from Brian Kimeade over the Reinhart meme
Original tweet here

As right-wing media and Trump continued to stir up Trump’s MAGA supporters, a man attempting to gain access to the FBI building [7]Reuters: Police shoot dead armed man who tried to breach Ohio FBI building was shot dead as he was armed. He had been seen on Truth Social posting anti-FBI comments after Trump had called the raid a “hoax” and that the FBI had “planted” the documents.

How much further this will go remains to be seen.

What Did The FBI Find During The Raid On Mar-a-Largo?

According to the warrant and receipt for property which was released by Breitbart[8]Breitbart: Exclusive: Warrant Shows DOJ, FBI Waited Several Days After Judge Approved to Conduct Mar-a-Lago Raid, there were many sets of documents seized: Roger Stone’s clemency agreement, information regarding the President of France and, most importantly six items were noted as being “Classified”, “Secret” or “Top Secret” and “TS/SCI”

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List of items taken duting the raid at Mar-a-Largo with the secret/classified items highlighted

“TS/SCI” documents are “Top Secret / Sensitive Compartmentalised Information” – think of these as top, TOP secret. They’re intercepts of phone calls or wire taps etc. and contain super secret spy stuff.

As it began to leak out that there may be some Classified/Top Secret documentation referring to US Nuclear capabilities (whether that’s energy, weapons or both we don’t know), Trump took to Truth Social again to call the whole thing a hoax and to say that items were planted.

Nuclear weapons issue is a Hoax, just like Russia, Russia, Russia was a Hoax, two Impeachments were a Hoax, the Mueller investigation was a Hoax, and much more. Same sleazy people involved. Why wouldn’t the FBI allow the inspection of areas at Mar-a-Lago with our lawyer’s, or others, present. Made them wait outside in the heat, wouldn’t let them get even close – said “ABSOLUTELY NOT.” Planting information anyone? Reminds me of a Christofer Steele Dossier!

"Truth" from Trump saying nuclear documents were a hoax and the FBI planted items
Original Truth here

This claim had to be rolled back as it was later revealed that the whole raid was on CCTV which would show if any tampering of evidence had occurred – it hadn’t.

In total 11 classified documents (or folders/packages/boxes of documents) and 20 boxes of other items and photos were removed during the search.

Of course, the Russians had some interesting things to say about this calling the search a “witch hunt”, “worse than McCarthyism,” and a “symbol of inordinate despotism”[9]UPROXX: Russian State TV Is Maybe Somehow Even Madder Than The American Right About The FBI Trump Raid: “There’ll Be Hell To Pay” among other things, with some TV hosts joking that the Russians had probably already seen the documents already so it didn’t really matter (there was a Tweet with a clip of this but I’m afraid I can’t find it now).

What’s The Issue? Trump Could Declassify Items

Yes, it’s true that Trump could declassify certain documents if he followed a specific process as set out by law, and he even claimed that the documents were declassified before the raid:

Number one, it was all declassified. Number two, they didn’t need to “seize” anything. They could have had it anytime they wanted without playing politics and breaking into Mar-a-Lago. It was in secured storage, with an additional lock put on as per their request…

"Truth" from Trump which now states all material was declassified
Original Truth here

In order to have declassified a document, Trump would have needed to draft a memo alerting people it was to be declassified, allowing any one involved in the subject matter to object. Athough the President can ignore and override objections, the initial memo must be drafted and circulated.

Once declassification is agreed, the documents have the old classification crossed out and are then stamped with a “Declassified on…” date.

If the classification isn’t crossed out and a declassified date isn’t present, they could not have gone through the proper declassification process. While this might happen for one document, it would be an oddity (and a breach of protocol) for it to happen to all of them.

But apparently that’s exactly what happened to the documents finally returned in January 2022 that Trump had taken when he left office.

All fifteen boxes of them.

According to former Trump staffer Kash Patel, the documents were declassified, they just “messed the paperwork up”[10]Breitbart: Documents at Mar-a-Lago Marked ‘Classified’ Were Already Declassified, Kash Patel Says.

It’s a bit strange this seems to have happened on multiple occasions, with multiple documents, but maybe I’m being cynical.

But anyway, a missing stamp is probably the least of Trump’s worries.

Super SUPER Secret Documents

Then we have the “TC/SCI” marked documents which are even more of a smoking gun.

There are some documents so sensitive that even Trump couldn’t declassify them without jumping through multiple hoops – even if they would be granted declassification at all.

For example those marked “TS/SCI” should, according to CBS News, only be discussed in “a secure room or building limited to government officials with a corresponding security clearance[11]CBS News: Trump says “it was all declassified” — how declassification usually works”.

I don’t somehow think a room in a resort hotel in Florida counts as a “secure room or building.”

Even NATO was concerned about Trump’s handling of sensitive information with reporter Mitch Prothero tweeting that “Just before Trump left office NATO officials were genuinely freaking out that he might take intel and sell or trade on it[12]Mitchell Prothero on Twitter”.

Tweet from Mitch Prothero showing NATO was worried about Trump's handling of classified material
Original tweet here

You can read the full article Prothero wrote on insider called “With Trump in debt, intelligence and security sources fear foreign spies may target him with offers of money” which paints a worrying picture about how easy it would be to get Trump to divulge information thanks to his debts, lack of awareness for protocol, hatred for rules and love of bragging on social media an example of which was outing the presence of a secret spy satellite[13]NPR: Amateurs Identify U.S. Spy Satellite Behind President Trump’s Tweet.

The interesting point is that, according to the New York Times, the warrant issued isn’t about whether the documents (or the content of the documents) are classified, it’s about the removal of the document from the White House (or secure area) in the first place.

Charles Savage of the NY Times states:

“The search warrant for Trump’s residence cited three criminal laws, all from Title 18 of the United States Code. Section 793, better known as the Espionage Act, which covers the unlawful retention of defense-related information that could harm the United States or aid a foreign adversary; Section 1519, which covers destroying or concealing documents to obstruct government investigations or administrative proceedings; and Section 2071, which covers the unlawful removal of government records. Notably, none of those laws turn on whether information was deemed to be unclassified.[14]New York Times: Documents Taken From Trump’s Home Included Classified Material

So even if the President had somehow managed to declassify these documents without following the proper procedure, it doesn’t matter. It’s not the fact they were secret, it’s the fact that he has them in Florida and not at the White House, in the National Archives or in a secure facility where they (apparently) legally belong.

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What Is The Espionage Act?

The 1978 Presidential Records Act[15]National Archives: Presidential Records Act (PRA) of 1978, does not have enforcement protection written into it, therefore charges can’t be brought for a breach of the Act. We covered this in my previous article about the Trump Raid but in a nutshell it was brought in to ensure Presidents turned over material relating to their Presidency to the National Archives thanks to Nixon and his “shenanigans”.

As Trump had apparently ignored a previous request to turn over the documents and then refused to comply with a subpoena (a document that requires you to turn over evidence when requested) he was technically in civil contempt[16]FindLaw: What Is a Subpoena?. As a result the had a warrant issued to allow the search of Trump’s property under the “Espionage Act”.

But what is what is the Espionage act exactly?

Background Of The Espionage Act

The Espionage Act of 1917 was a federal law enacted on the 15th June that year after the United States entered World War I. Since then, it has been amended several times.

Although it originally occupied Title 50 of the U.S. Code, it is now found under Title 18.

The law was meant to protect the nation from any foreign adversaries, making it illegal to communicate information that would harm the American war effort or aid the country’s enemies. The Espionage Act covered three new crimes: espionage, conspiracy, and espionage involving foreign governments.

The law prohibits you obtaining any information relating to defence which you may intend to pass on to a foreign agent to give them an advantage or which will disadvantage the United States[17]Newsweek: Espionage Act Violators Have Been Sentenced to Decades in Jail, Execution.

The reach of The Espionage Act was extremely broad and it would appear no one was safe from it.

While not one person was convicted of spying or sabotage under the act during World War I, the zealous use of the Espionage Act was increased when the Bolshevik Revolution in Russia triggered widespread fears of communist revolts in other nations.

Despite the Espionage Act’s intended use being to stop information being given to German spies, it was used widely after the war. After the Bolshevik Revolution and the Red Scare period that followed[18]Encylopedia.com: Espionage Act (1917) and Sedition Act (1918) almost two thousand people were tried under the Espionage Act in the 1920s, with up to 1,500 receiving some form of conviction.

Ironically Trump increased penalties within the Espionage act for “unauthorized removal and retention of classified documents or material” from one year to five years in prison and signed it into law in 2018.

What Does The Espionage Act Mean In This Case

Despite the fact that the Act was born out of a need for secrecy in war time, and then twisted to “save” the United States from a perceived Communist threat, it’s not all about dead drops, photographing secret documents and spy craft.

The Espionage Act essentially covers any mishandling of classified information – be it leaking it to a foreign power, losing it, telling someone without clearance something they weren’t supposed to know or – and bear with me on this one – taking classified documents from a secure location such as The White House and driving them around 1,000 miles to your Resort home in Palm Beach, Florida.

Screenshot showing the distance from The White House in Washington DC to Mar-A-Largo in Florida

But Obama Took 33 Million Pages!!!

According to Donald Trump, Former President Barack Obama kept 33 million pages of documents. Trump posted on Truth Social claiming that:

President Barack Hussein Obama kept 33 million pages of documents, much of them classified. How many of them pertained to nuclear? Word is, lots!

Truth from Trump claiming Obama took 33 million pages
Original Truth here

Barack Obama did not “keep” 33 million pages of documents. Once again, Trump is taking something that is actually marginally true, ignoring the facts and twisting it to fit his narrative as he knows his supporters won’t bother to look behind the headline figure.

The National Archives Records Agency (NARA) – ironically the organisation who started all of this by finding Trump hadn’t handed over all the expected documents back when he left office – roundly denied that Obama had kept any documents stating that they were all accounted for.

In a statement by NARA released on the 12th August 2022, they state the following:

The National Archives and Records Administration (NARA) assumed exclusive legal and physical custody of Obama presidential records when President Barack Obama left office in 2017, in accordance with the Presidential Records Act (PRA). NARA moved approximately 30 million pages of records of unclassified records to a NARA facility in the Chicago area where they are maintained exclusively by NARA. Additionally NARA maintains the classified Obama Presidential records in a NARA facility in the Washington, DC, area. As required by the PRA, former President Barack Obama has no control over where and how NARA stores the presidential records of his administration.[19]MailOnline: National Archives rejects Trump’s claim that Obama took 33 million pages of classified documents from the White House and insists they are in a secure facility in Chicago[20]Jacqueline Alemany on Twitter[21]Law & Crime: National Archives Rebuts Baseless Donald Trump Statements About Barack Obama and Classified Documents

Trump is conflating the 30 million pages NARA moved to a secure facility in a legal manner in line with procedure with Obama illegally taking the documents which did not happen.

But of course, Trump is betting his MAGA crowd won’t see that, they will just see Obama’s name in the statement, see the 30 million figure, see the word “moved” and jump to the conclusion that Obama took them and that the “Deep State Establishement” is part of a big cover-up who are now after Donald Trump.

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What’s Next For The Investigation And For Trump?

Well, we know that Donald Trump had the documents as they were found on his property.

He also admitted knowing that the documents were there and that he had them as he said he had declassified them and it was okay for them to be in his possession.

I am surprised his legal representatives aren’t telling him to keep away from Truth Social at this point, with each “Truth” (their version of a tweet) he’s incriminating himself even more.

So the issue isn’t whether he had the documents, he has admitted to that. The issue is now, what were the contents of the documents, did he actually declassify them (and when), are they all marked up as “declassified” properly, what did he intend to do with these documents and who else had access to them?

It’s now being reported that the FBI are fingerprinting all of the documents to see who may have come into contact with them[22]Brian D McBride on Twitter

Tweet from Brian McBride claiming the FBI are now fingerprinting seized documents
Original tweet here

Note that the above tweet is the only source I have been able to find for this, but I would assume it would be standard practice in the majority of investigations where evidence is seized.

We don’t even know if this is the full haul of documents that were being looked for either. Trump famously has properties in New York – Trump Tower on Fifth Avenue – and his golf course in Bedminster, New Jersey. As he visits both, with the golf course being the more popular of the two, it’s not impossible to see that further raids may be on the horizon.

The Mysterious Saudi Connection

All of this has come at a time when Trump, the Trump White House and the wider Trump family’s involvement with Saudi Arabia are being looked into in more details.

Just a few of the facts that have recently come to light are:

  • Trump hosted a Saudia-backed tournament at his golf course[23]CNN: Controversial Saudi-backed golf tournament to begin Friday at Trump golf course shortly before the raid happened
  • Saudi Crown Prince Mohammed bin Salman “invested” $2 billion dollars in Jared Kusher’s company (Kushner is Trump’s son-in-law) despite the Prince being repeatedly told not not[24]Vanity Fair: Report: Jared Kushner’s $2 Billion Saudi Check Appears Even More Comically Corrupt Than Previously Thought
  • The Trump White House agreed in secret to allowing US companies to sell nuclear power technology to the Saudis back in 2019[25]Independent: Trump administration approves secret Saudi nuclear power agreement

Then the investigators are going to be looking very closely at Trumps movements and interactions with the Saudis whom he seems to be more intertwined with, having pulled back from the Russians since he left office.

The Political Future Of Donald J. Trump

Whatever happens, it’s difficult to see how Trump can run for President in 2024 with this hanging over his head, especially when you combine it with the two other investigations that are currently ongoing, and whatever others may arise in the near future.

While the Republican GOP may want to back away and distance themselves from Trump, he still has massive base and a massive amount of political sway with Republicans in general.

To Trump, this investigation is another “blip” on the road and he will use this “witch hunt” as he did the Russia probe, the two impeachments and his many other scandals to increase support in him and mistrust of the established “Big Government”, “Deep State” and anyone else who stands in his way.

Whether his followers and the GOP will accept this narrative or not is still to be played out over the next few months.

References

References
1 The Hill: Trump suspected of violating Espionage Act, according to search warrant
2 Vaghn Hillyard – NBC News Correspondent on Twitter
3 Washinton Examiner
4 Newsweek: Trump, Classified Nuclear Files, Saudis: What We Do Know, What We Don’t
5 CBS News: Trump lawyers agree to public release of Mar-a-Lago search warrant for White House documents
6, 8 Breitbart: Exclusive: Warrant Shows DOJ, FBI Waited Several Days After Judge Approved to Conduct Mar-a-Lago Raid
7 Reuters: Police shoot dead armed man who tried to breach Ohio FBI building
9 UPROXX: Russian State TV Is Maybe Somehow Even Madder Than The American Right About The FBI Trump Raid: “There’ll Be Hell To Pay”
10 Breitbart: Documents at Mar-a-Lago Marked ‘Classified’ Were Already Declassified, Kash Patel Says
11 CBS News: Trump says “it was all declassified” — how declassification usually works
12 Mitchell Prothero on Twitter
13 NPR: Amateurs Identify U.S. Spy Satellite Behind President Trump’s Tweet
14 New York Times: Documents Taken From Trump’s Home Included Classified Material
15 National Archives: Presidential Records Act (PRA) of 1978
16 FindLaw: What Is a Subpoena?
17 Newsweek: Espionage Act Violators Have Been Sentenced to Decades in Jail, Execution
18 Encylopedia.com: Espionage Act (1917) and Sedition Act (1918)
19 MailOnline: National Archives rejects Trump’s claim that Obama took 33 million pages of classified documents from the White House and insists they are in a secure facility in Chicago
20 Jacqueline Alemany on Twitter
21 Law & Crime: National Archives Rebuts Baseless Donald Trump Statements About Barack Obama and Classified Documents
22 Brian D McBride on Twitter
23 CNN: Controversial Saudi-backed golf tournament to begin Friday at Trump golf course
24 Vanity Fair: Report: Jared Kushner’s $2 Billion Saudi Check Appears Even More Comically Corrupt Than Previously Thought
25 Independent: Trump administration approves secret Saudi nuclear power agreement

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