The former is a remarkable feat of goalpost-setting and spin. The latter is a dicey assumption, given all that we’ve learned.
The Wall Street Journal editorial board got the ball rolling on this argument Friday, within hours of the indictment being unsealed.
“However cavalier he was with classified files, Mr. Trump did not accept a bribe or betray secrets to Russia,” it wrote Friday night. “The FBI recovered the missing documents when it raided Mar-a-Lago, so presumably there are no more secret attack plans for Mr. Trump to show off.”
Sen. Mike Lee (R-Utah) later approvingly promoted this quote on Twitter.
Fox News host Mark Levin was also quick to this line of argument: “There’s not one syllable of evidence in here, that any information under the Espionage Act was passed to any spies, to any enemies, to any foreign countries — not one.”
Sen. Lindsey O. Graham (R-S.C.) picked up the argument Sunday. “Espionage charges are absolutely ridiculous. Whether you like Trump or not, he did not commit espionage,” Graham said on ABC’s “This Week.” “He did not disseminate, leak or provide information to a foreign power or to a news organization to damage this country. He is not a spy. He’s overcharged.”
But as Graham — a former Judge Advocate General’s Corps (JAG) lawyer — very likely knows, being charged under the Espionage Act does not mean you are accused of spying or even aiding spies. We flagged this Thursday after news broke that Trump was indicted but before the charges were unsealed Friday.
Basically, the Espionage Act covers all manner of potential mishandling of sensitive information, even if there is no transmitting to America’s enemies. The specific section of the act cited in Counts 1 through 31 of Trump’s indictment (18 U.S.C. § 793(e)) involves willful retention of national defense information after the government requests its return.
Below is that section, with the apparently applicable parts bolded:
Whoever having unauthorized possession of, access to, or control over [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, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted, or attempts to communicate, deliver, transmit or cause to be communicated, delivered, or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it to the officer or employee of the United States entitled to receive it …
The information need not be transmitted to our enemies; it simply needs to be valuable to them in a way Trump would have been aware of and to not be turned over when the government came calling for it (for which there is extensive evidence in Trump’s indictment).
In response to Graham promoting this portion of his ABC News interview Sunday, legal expert Stephen Vladeck noted his own testimony from 2010 about the Espionage Act. In it, Vladeck noted that “the plain text of the Act fails to require a specific intent either to harm the national security of the United States or to benefit a foreign power.”
Trump could also run afoul of the Espionage Act by sharing the information with “any person not entitled to receive it” — i.e. not necessarily spies — which could include the guests he allegedly showed the documents to in two 2021 instances the indictment describes.
Beyond that, there is the related argument: that whatever non-espionage conduct Trump engaged in by holding onto these documents after the government demanded them has effectively been extinguished. Or, as the WSJ editorial board put it and as Lee relayed, “The FBI recovered the missing documents when it raided Mar-a-Lago, so presumably there are no more secret attack plans for Mr. Trump to show off.”
This is quite the presumption.
The indictment makes no mention of the idea that there are still classified documents out there. But the document Trump described in one instance of his allegedly showing them off — the one for which he’s on tape, involving a potential attack on Iran — reportedly hasn’t turned up.
The Justice Department also said in September, even after the Mar-a-Lago search, that more classified records might remain missing. It specifically cited 48 folders bearing classified markings that were nonetheless empty. It’s possible those folders had been separated from the documents they contained when they were still in the White House, but the issue hasn’t been publicly resolved.
There’s also the fact that we found out in December that two more documents with classified markings had turned up in a search of a Trump storage unit conducted by an outside team hired by Trump’s lawyers.
But as important is something else we learned in the indictment: Trump on multiple occasions appears to have suggested to his lawyer, not very subtly, that certain documents not be returned or even that they disappear.
Notes taken by Trump attorney Evan Corcoran after the May 2022 subpoena describe Trump approvingly citing a Hillary Clinton aide who deleted emails from her private server. Trump also allegedly told Corcoran something to the effect of, “Wouldn’t it be better if we just told them we don’t have anything here?” and, “Well, look, isn’t it better if there are no documents?” Corcoran’s notes describe an interaction with Trump when some classified documents were due to be returned in early June 2022, “He made a funny motion as though — well okay why don’t you take them with you to your hotel room and if there’s anything really bad in there, like, you know, pluck it out. And that was the motion that he made.”
Trump also appears to have taken a great interest in the boxes, with multiple aides talking about him personally going through them.
None of which would seem to instill full confidence that the government has recovered all of what it sought. All of it points in the direction of Trump willfully trying not to return the documents when he was legally required to.
And the fact that Trump’s allies are setting the bar at “at least Trump isn’t a literal spy” would seem to reinforce how much trouble he’s in, legally speaking.
