Former President Donald Trump is being investigated by the FBI for potentially violating the Espionage Act, according to a copy of the search warrant used by the bureau to search his Mar-a-Lago club this week.
The Espionage Act covers a range of activities, and the explicit title for the statute identified in the warrant is “gathering, transmitting, or losing defense information.” Other potential crimes mentioned in the warrant include the removal or destruction of records, and the obstruction of an investigation.
Trump hasn’t been charged with any violation. But the investigation is raising questions about his future legal jeopardy, former prosecutors say—and the Espionage Act is no joke.
“These are serious crimes,” Barbara McQuade, the former top federal prosecutor in Detroit, told VICE News on Friday. “The Espionage Act can be violated in a number of ways, with prison ranging from no prison time to death, depending on the nature of the information and the person’s intent. This was the statute used to prosecute Julius and Ethel Rosenberg, who were put to death for giving secrets to the Soviets.”
The World War I-era Espionage Act has been used to go after leakers of classified information, and it was used to target Edward Snowden, the former National Security Agency contractor who leaked a large batch of files about secret U.S. surveillance programs and then fled to Russia. The law applies both to actual spies and also to government employees who disseminate documents they’re not supposed to.
“In layman’s terms, the Department of Justice is alleging that Donald Trump is a traitor,” said Gene Rossi, a former federal prosecutor in the Eastern District of Virginia who has worked on national security issues. “They proved probable cause to the satisfaction of a judge that Donald Trump was going to use this top-secret classified information to harm the United States.”
Trump has argued that all the materials were declassified by him as president before he stepped down. The outcome of a future legal battle over the handling of the files may depend on whether Trump can show this was done properly before he left the White House.
“Number one, it was all declassified,” Trump wrote in a post on his social media site, Truth Social, earlier Friday. “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.”
On Thursday, the Washington Post reported that some classified documents sought by the FBI related to nuclear weapons, citing people familiar with the investigation.
Trump dismissed the nuclear allegations as a “Hoax.”
Both the administrations of former presidents Trump and Barack Obama used the espionage act to go after leakers of government information. Eight people were charged or convicted of leaking national security secrets with the Espionage Act under Obama. Those cases included Chelsea Manning, who was convicted of handing tens of thousands of sensitive military and diplomatic documents to WikiLeaks. Manning was sentenced to 35 years in a maximum-security barracks at Fort Leavenworth, although Obama commuted Manning’s sentence to roughly seven years.
A copy of the search warrant was released on Friday after Attorney General Merrick Garland announced the Department of Justice would seek to make the document public. Trump announced that he approved of the release, and a judge granted the motion.
The document states that FBI agents set out to search Trump’s Mar-a-Lago private club and residence in Palm Beach, Florida, for “information, including communications in any form, regarding the retrieval, storage, or transmission of national defense information or classified material,” among other items.
What was in the boxes?
The agents took at least 20 boxes of items, according to an itemized receipt that was also released on Friday.
The list included 11 sets of classified documents, including some marked “various classified TS/SCI documents,” which is one of the most restricted levels of classification in the U.S. government system.
Entries in the list of items taken by the FBI were not detailed. Many were marked in bundles, simply as “Miscellaneous Top Secret Documents,” or “Miscellaneous Confidential Documents.” The pages released by the judge on Friday did not explicitly say anything about nuclear materials.
One entry was labeled “Executive Grant of Clemency re: Roger Jason Stone, Jr.”
Stone is one of Trump’s oldest political advisers. He was convicted of lying under oath to lawmakers who were investigating Russian interference in the 2016 election, but he received a presidential pardon from Trump shortly before Trump stepped down from the White House.
Another document is called, simply, “Info re: President of France.”
Legal experts called the mere mention of a former president’s name in conjunction with the Espionage Act troubling.
“With the major caveat that the public still knows little compared to what DOJ and FBI know, the public and Trump should be very concerned about references to the Espionage Act, because they allude to possible threats to national security and defense and involve highly sensitive material,” said Carl Tobias, a University of Richmond law professor.
“The warrant does not include much specificity, but the volume of information seized suggests that it may yield considerable critical information about threats that Trump posed to the nation,” Tobias said.
The Espionage Act doesn’t necessarily require that the documents in question have to be classified, said Harry Sandick, a former prosecutor for the Southern District of New York.
For the Espionage Act, “it doesn’t matter if the materials are classified,” Sandick told VICE News.
Yet the details of why the FBI thinks Trump took the files will be important—and so far, they remain unknown. Some parts of the Espionage Act depend on what the suspect planned to do with the documents, Sandick said.
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