Former US Prez Donald Trump potentially facing Espionage Act violation case

The FBI seized classified material from Donald Trump, and court filings revealed the former president may be under investigation for mishandling government records

The FBI seized classified material from Donald Trump in a search that has thrown US politics into turmoil, and court filings revealed the former president may be under investigation for mishandling government records and potentially compromising national security information.

Court documents unsealed by a judge Friday shed new light on Trump’s legal exposure in the latest of a string of investigations into his activities as a businessman, sitting president, and ex-officeholder and deepens his legal troubles on the eve of a potential third bid for the White House.

The list of information seized during Monday’s search of Trump’s Mar-a-Lago residence in Florida includes documents that bore the US government’s highest top-secret rating, and prosecutors indicated they are exploring possible violations of the federal Espionage Act among other allegations. The FBI seized “TS/SCI documents,” which stands for top-secret and sensitive compartmented information, a government label for material gathered through sensitive intelligence sources or methods.

The items were taken during the execution of a search warrant signed by a Florida judge earlier this week that was immediately attacked by Trump and his Republican allies as a political move by the administration of his successor, President Joe Biden. The White House has said that Biden wasn’t told in advance about the search. 

The search has galvanized some in the Republican Party as it intensifies its campaign to retake Congress and bolster Trump for a possible 2024 run. Trump suggested the search warrant -- which a federal judge had to sign off on after finding probable cause that a search would yield evidence of crimes -- was politically motivated. The former president and some conservative commentators also floated baseless conspiracy theories that FBI agents might have planted evidence. 

In an effort to calm the outcry from Trump allies about the search of the Florida compound, US Attorney General Merrick Garland on Thursday asked the judge to unseal the warrant. Trump said in a posting on social media Thursday night that he supported the release of the documents. 

US Magistrate Judge Bruce Reinhart unsealed the documents Friday.

Prosecutors said they were searching for evidence of violations of three specific federal criminal laws: 18 USC 793, which is part of the Espionage Act and makes it a crime to remove or misuse information related to national defense; 18 USC 2071, which makes it a crime to hide, damage, or destroy government records; and 18 USC 1519, which makes it a crime to falsify, destroy, or cover up records to obstruct or interfere with a federal investigation or “proper administration of any matter” under the jurisdiction of an agency.

Ryan Goodman, professor of law at New York University, said that the Espionage Act is the “most serious federal offense anyone can imagine.” There are limits to what the president can do unilaterally and this “signals an order of magnitude even above what the president can do alone,” said Goodman.

“It raises the stakes enormously in terms of the pending criminal investigation,” he said. 

The judge authorized agents to gather any documents with classification markings as well as information about how “national defense information or classified material” had been stored and handled. The judge also gave agents leeway to collect any other government records created between the day Trump took office on Jan. 20, 2017 and when he left four years later that might be evidence of violations of the Espionage Act or other document-related crimes under investigation.

An FBI property receipt didn’t elaborate on the nature of the classified files. But taken together, the warrant and the receipt gave a glimpse of the DOJ’s rationale in searching the home of a former president -- a step that provoked outrage from Trump and his allies and alarm among national-security specialists that national secrets had been left at risk of exposure.

All three potential offenses cited in the warrant are felony crimes. The obstruction charge carries a maximum sentence of up to 20 years in prison. The Espionage Act crime has a maximum sentence of 10 years in prison, and the catch-all offense for destroying government records carries up to three years behind bars. 

The records destruction statute also states that a person found guilty “shall forfeit his office and be disqualified from holding any office under the United States,” but legal scholars have largely agreed that it’s unlikely that punishment could apply to the presidency, since the Constitution directly spells out what qualifies, or disqualifies, a person for that office.

Included in the materials removed from Trump’s home Monday were 11 sets of documents labeled classified, confidential, secret and top secret included in about 20 boxes. Other items listed included a handwritten note, the executive clemency grant for Trump confidante Roger Stone, photos, and information about the “President of France.” 

Shortly before Reinhart ordered the documents unsealed, Trump issued a statement claiming that the information was declassified.

“Number one, it was all declassified,” Trump said. “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.”

Some of the former president’s supporters have claimed he has the power to declassify documents on his own. While a president can request or initiate a declassification, the original classifying agency “must undergo a process to complete the declassification,” according to former federal prosecutor Barbara McQuade.Trump spokesman Taylor Budowich said the records were ordinary or declassified. A representative for the Justice Department didn’t immediately reply to a message seeking comment.

“This raid of President Trump’s home was not just unprecedented, but unnecessary -- and now they are leaking lies and innuendos to try to explain away the weaponization of government against their dominant political opponent,” Budowich said in a statement. 

The US National Archives and Records Administration “had ongoing communications” with Trump’s representatives “throughout 2021, which resulted in the transfer of 15 boxes to NARA in January 2022,” Archivist David Ferriero wrote in his Feb. 18th letter to House Oversight Committee Chairwoman Carolyn Maloney, which prompted NARA staff to contact the Justice Department and resulted in the investigation that lead to the FBI’s search on Monday.

It was only after archivists began indexing those recovered records that they discovered the boxes contained “classified national security information,” Archivist David Ferriero wrote in his Feb. 18th letter to House Oversight Committee Chairwoman Carolyn Maloney, which prompted NARA staff to contact the Justice Department and resulted in the investigation that lead to the FBI’s search on Monday.

The Justice Department did not ask to unseal an underlying affidavit that prosecutors had to file in seeking the search warrant that would have laid out more details about what they were investigating and what evidence they already had. 

Trump allies have been calling for that document to be released once DOJ announced it wouldn’t object to sharing the warrant, but experts say its likely officials will want to keep that under wraps to protect the ongoing investigation.