Legal experts: Trump could be charged under "Espionage Act" over report that he showed off docs

New evidence "suggests an escalation in the seriousness of the charges Trump faces," former federal prosecutor says

By Areeba Shah

Staff Writer

Published May 30, 2023 3:08PM (EDT)

Former U.S. President Donald Trump speaks during an event at Mar-a-Lago April 4, 2023 in West Palm Beach, Florida. (Joe Raedle/Getty Images)
Former U.S. President Donald Trump speaks during an event at Mar-a-Lago April 4, 2023 in West Palm Beach, Florida. (Joe Raedle/Getty Images)

Prosecutors obtained evidence that former President Donald Trump kept classified documents in his office and sometimes showed them to people, according to a recent report from The Washington Post

Legal experts say the report suggests the former president may be facing more serious charges than obstruction.

"The news report suggests an escalation in the seriousness of the charges Trump faces," former federal prosecutor Kevin O'Brien told Salon. "Evidence that he showed highly sensitive documents to third parties implicates the Espionage Act, which forbids willfully conveying such a document 'to any person not entitled to receive it,' or willfully failing to deliver the same on demand to a government officer or employee entitled to receive it. Trump appears to fall under both prongs of the statute, which is punishable by up to 10 years in prison per violation."

As the investigation into the former president's retention of national security materials at Mar-a-Lago nears its end, the FBI and Justice Department have discovered instances of potential obstruction that provide more detailed and specific information than what was previously disclosed, the Post reported. 

It also expands the timeline of possible instances of obstruction under investigation, extending from events at Mar-a-Lago prior to the subpoena to the period following the FBI search conducted on August 8, according to the Post. 

Prior to receiving the subpoena in May, Trump had engaged in what some officials have referred to as a "dress rehearsal," which involved the movement of government documents that he wished to retain. Prosecutors have collected evidence related to this matter, according to individuals familiar with the investigation, the Post reported.

"Disclosing classified information to an unauthorized person is a different and more serious offense than simply retaining classified information," former U.S. Attorney Barb McQuade, a University of Michigan law professor, told Salon. "And a disclosure to a foreign government is the most serious offense of all. If a disclosure is made with reason to believe that the United States would be injured or the foreign government advantaged, the penalty is up to life in prison or even death, as in the case of the Rosenbergs."

Prosecutors have also uncovered evidence in recent weeks indicating that Trump's employees at Mar-a-Lago brought boxes of documents back to the storage room just one day before the visit of justice department officials who were scheduled to collect the classified documents that had been subpoenaed, according to The Washington Post.

Since last year, the Justice Department has been investigating the retention of sensitive records after the National Archives found 15 boxes of materials from when Trump served as president. 

In August, the FBI conducted a search at Mar-a-Lago, leading to the discovery of over 100 documents labeled as classified at Trump's Mar-a-Lago residence.

Trump has maintained no wrongdoing in the matter and has claimed that the investigation is part of an alleged Democratic scheme to prevent him from serving as president again. 

Want a daily wrap-up of all the news and commentary Salon has to offer? Subscribe to our morning newsletter, Crash Course.

Even prior to the most recent reporting, Trump faced serious criminal exposure for allegedly retaining highly sensitive documents, Temidayo Aganga-Williams, partner at Selendy Gay Elsberg and former senior investigative counsel for the House Jan. 6 committee, told Salon. 

"As with any criminal case, the exercise of prosecutorial discretion in charging decisions is central," Aganga-Williams said. "If true then President Trump not only unlawfully retained classified documents, but also showed them to others, it will make it more likely that special counsel Jack Smith will seek authority to charge the former president."

By Areeba Shah

Areeba Shah is a staff writer at Salon covering news and politics. Previously, she was a research associate at Citizens for Responsibility and Ethics in Washington and a reporting fellow for the Pulitzer Center, where she covered how COVID-19 impacted migrant farmworkers in the Midwest.

MORE FROM Areeba Shah

Related Topics ------------------------------------------

Donald Trump Furthering Jack Smith Mar-a-lago Politics