The case against Donald Trump, which concerns the former President’s handling of classified documents, raises complicated questions about intent and national security.
Owing to the sensitivity of classified information and the nearness of the 2024 Presidential election, the proceedings against Donald Trump are likely to be a jumble of tactical and operational concerns.On Thursday, former President Donald Trump announced that the Justice Department was indicting him on seven criminal charges in an investigation surrounding classified documents found at his Florida home at Mar-a-Lago.
There is one thing. It is called the silent-witness rule. Under this rule, the government can put a witness on the stand, and have the witness refer to line numbers of documents, and point to different parts of documents, where the government and the defendant and the jury and the judge all have the document, but the public doesn’t. The problem is that part of that includes the defendant, and part of that includes disclosing information to the defense.
Given that these dynamics seem complicated, are you suggesting that sometimes the government will bring charges where they don’t have to get into all this stuff? Will they, in essence, bring more basic charges? This is, to me, one of the deeply problematic things about the Espionage Act, which is that motive is irrelevant. And in prior cases where the conversation has been about using the Espionage Act to go after national-security leakers whose motives might have been in service of the public interest, that doesn’t matter to establishing a violation of the Espionage Act. It’s a knowledge requirement, not an intent requirement.
Yes. I think it is safe to say that the history of Espionage Act prosecutions is not as voluminous as those of other, more frequently used federal criminal statutes. But, yes: we see differences in prosecuting leakers versus classic spies, where the charges may be the same but the sentencing recommendations are different, or you see a difference in the government seeking consecutive versus concurrent sentences.
The Espionage Act charge means he would have to know it was information related to the national defense that could be used to the benefit of a foreign party or the harm of the United States. The defense could try to argue that, if the information had properly been declassified, then there would be no way that Trump’s retention of it could have benefited a foreign power or harmed the United States. I will just say that that argument has failed in prior Espionage Act prosecutions.
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