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    KeNHA and KeRRA Director Generals Resign

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    WoSA Expands Kenya Footprint with Nairobi Wine Tasting Showcase

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Trump Charged under Espionage Act – Which Covers a Lot More Crimes than Just Spying

by Joseph Ferguson
June 12, 2023
Reading Time: 9 mins read
Former President Donald Trump was on the campaign trail in early June 2023, as an investigation continued that led to his indictment on federal charges |  Andrew Caballero-Reynolds/AFP via Getty Images

Former President Donald Trump was on the campaign trail in early June 2023, as an investigation continued that led to his indictment on federal charges | Andrew Caballero-Reynolds/AFP via Getty Images

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Former President Donald Trump’s indictment by a federal grand jury in Miami includes 31 counts of violating a part of the Espionage Act of 1917.

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

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

Espionage Act seldom pertains to espionage

When you hear “espionage,” you may think spies and international intrigue. One portion of the act – 18 U.S.C. 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 U.S. secrets to the Soviet Union and Russia over a span of more than 20 years. All three received life sentences.


Also Read: Mike Pence is Jockeying against Donald Trump for the Republican Presidential Nomination – Joining the Ranks of just one Vice President who, in 1800, also ran against a Former Boss


But spy cases are rare. More typically, as in the Trump investigation, the act applies to the unauthorized gathering, possessing or transmitting of certain sensitive government information.

Transmitting can mean moving materials from an authorized to an unauthorized location – many types of sensitive government information must be maintained in secure facilities. It can also apply to refusing a government demand for a document’s return. Trump’s charges reportedly include an allegation of “unauthorized retention of national security documents,” which can include both possessing the documents and refusing to return them to the government. All of these prohibited activities fall under the separate and more commonly applied section of the act – 18 U.S.C. section 793.

Chelsea Manning, in uniform, after being sentenced on Aug. 21, 2013, to 35 years in prison after being found guilty of several counts under the Espionage Act | Photo by Mark Wilson/Getty Images

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

Willful unauthorized possession of information that, if obtained by a foreign government, might harm U.S. 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 defense information, known as “NDI.”


Also Read: Former Attorney General Bill Barr: US Potentially has ‘very good evidence’ Donald Trump Obstructed Justice in Classified Documents Case


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 unauthorized 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 misdemeanors 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 unauthorized 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 U.S. 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 defense 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.

A judge unsealed a search warrant that shows that the FBI is investigating Donald Trump for a possible violation of the Espionage Act | AP Photo/Jon Elswick

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.


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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 defense information is all that matters.

Historically, Espionage Act cases have been occasionally political and almost always politicized. Enacted at the beginning of U.S. 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, labor organizers and left-leaning radicals. It was a tool of Cold War anti-communist politicians like Sen. 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 whistleblower Daniel Ellsberg. Since Sept. 11, 2001, officials have used the act against whistleblowers 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 is an updated version of an article originally published Aug. 15, 2022.The Conversation

Joseph Ferguson, Co-Director, National Security and Civil Rights Program, Loyola University Chicago and Thomas A. Durkin, Distinguished Practitioner in Residence, Loyola University Chicago

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

Tags: Chelsea ManningCIAClassified DocumentsClassified informationDaniel EllsbergDonald TrumpDonald Trump IndictmentEdward SnowdenEspionage ActGovernment SecrecyMar-a-LagoMerrick GarlandNational SecurityPentagon PapersTrump indictmentUS Justice DepartmentUS national SecurityWhistleblowers
Joseph Ferguson

Joseph Ferguson

Joe Ferguson has extensive practice experience in the private and government sectors. He was an elbow clerk to the late Hon. Myron H. Bright of the U.S. Circuit Court of Appeals (Eighth Circuit) and Hon Suzanne B. Conlon of the U.S. District Court (ND IL). He spent two years in private practice with Sidley Austin where his work included anti-trust and commercial litigation, and pro bono death penalty litigation to the U.S. Court of Appeals for the Seventh Circuit and the United States Supreme Court. He went on to spend 15 years in the United States Attorney’s Office for the Northern District of Illinois (USAO-ND IL). His first six years were with the office’s Civil Division, where he litigated cases at both the trial (USDC-NDIL) and appellate (USCA- 7th Cir.) court relating to, among other areas, employment discrimination (Title VII), civil rights, environmental law, and government program fraud. Ferguson’s work included a landmark environmental case, which was ultimately decided by the United States Supreme Court. He spent nearly ten years in the office’s Criminal Division, prosecuting cases involving public corruption, mail/wire fraud, tax fraud, terrorist financing, narcotics trafficking, and labor racketeering. He served as the Chief of the Money Laundering and Forfeiture Section, having been its Deputy Chief. He also held positions as Deputy Chief of Financial Crimes & Special Prosecutions and USAO Terrorist Financing Coordinator. He has received the Department of Justice’s Director’s Award for his work in the area of asset forfeiture. He is also a recipient of the Gaston Gianni Award from the President’s Council on Integrity & Efficiency for prosecuted broad scale government program fraud. Ferguson has been an adjunct instructor at Loyola since the late 1990s, first as an appellate writing and advocacy instructor, and, for the last ten years, teaching National Security Law and Prosecuting and Defending Terrorism Cases. He helped develop and establish the National Security and Civil Rights Program. He also is an adjunct in the Political Science Department at Lake Forest College. Ferguson has also taught and lectured at the Department of Justice’s National Advocacy Center, which provides training for federal, state, and local prosecutors and investigative agencies. With USDOJ, he also has presented to foreign military, criminal, and intelligence organizations regarding evidence gathering and prosecution of terrorism-related cases in the U.S.

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