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Trump Under the Espionage Act

James Fallows turns over his Breaking the News Substack to longtime defense and intelligence official Jan Lodal to examine how best to investigate former President Donald Trump under the Espionage Act.

Lodal argues that many sections of the act include soft elements that may be impossible to get an unanimous jury verdict against the former President. No jury is going to convict Trump of treason or being a spy, Lodal argues. But there is another subsection of the Espionage Act that doesn’t require interpretation.

But there is one remaining subparagraph of the Espionage Act that isunambiguously applicable to what Trump has done — subparagraph (d).  This paragraph makes a straightforward action a crime: namely, failing to return classified documents if properly directed to give them back.  No proof of the level of classification, or the intentions of the document holder, or the content of the documents, is required.  Just a simple question, did he or she give them back or not. 

Lodal encourages us, and prosecutors, to look more closely at subparagraph (d) when looking to prosecutive Trump for stealing classified documents. I’m glad Fallows shared this perspective, because I also hadn’t heard this kind of analysis before.

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