The Espionage Act of 1917 is a powerful tool of national security, one that has been used since World War I to charge, try, convict and imprison spies and leakers of classified information. Now, for the first time, it appears it’s about to be employed against an ex-president of the United States.

Donald Trump has never been a respecter of norms, rules or laws. In his business career and during his one term as president, he violated a raft of them, then blustered, threatened, manipulated, lied or bought his way out of trouble. This time he may have truly overreached himself.

According to the property receipt for an unsealed search warrant executed Aug. 8 by the FBI at Trump’s Mara Largo home, the feds found, among many other official papers, 11 sets of classified documents, including some marked “top secret,” meant to be viewed only at secure government facilities. The search took place after National Archives officials last January retrieved 15 boxes of public records improperly taken to Mar-a-Lago when Trump left office and after a Trump attorney subsequently signed a statement saying that all classified documents at Mar-a-Lago had been turned over to federal investigators,

What Trump was going to do with these documents has become a topic of hyperbolic conjecture by pundits. Did he intend to keep them as trophies, suppress damaging information they contained, market them to profit himself or his brand, barter them for political favors, use them to blackmail foreign leaders, sell them to the highest bidder among a coven of hostile foreign powers? Or was he simply exercising his boundless sense of entitlement?

It hardly matters, since the very removal, retention and failure to return the type of documents found at Mara Largo, regardless of motive, can be treated as a felony.

Section 793(f) of the Act, makes it illegal for anyone who has been “entrusted with” or is in “lawful possession or control” of any document “relating to the national defense” to negligently permit it to be removed from its “proper place of custody” or to fail to knowingly “make prompt report” of a loss or theft of a document which has been illegally removed from its place of custody.

Another section of the statute forbids anyone who is in unauthorized possession of a national defense document, which he “has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation,” from transmitting it to others, willfully retaining it, or failing to return it to the government.

The Espionage Act casts a broad net. Trump would likely lose in a criminal prosecution under just about any rationale he might invent.

He was entrusted with classified documents as president, but that right disappeared once he left office. At that point, his possession became unauthorized. If he deliberately retained them, negligently allowed them to be removed from their proper place of custody, knowingly failed to report their theft or loss, or willfully failed to return them, he’s on the hook.

One of the justifications Trump and his allies have floated in social media is that he declassified any secret documents he took to the White House living quarters to read. That’s an improbable claim in the absence of a formal written order. But it wouldn’t fly anyway if the documents related to national defense and especially if they “could be used to the injury of the United States or to the advantage of any foreign nation.”

The Espionage Act has had a long and lurid history.

It was employed to convict Julius and Ethel Rosenberg in 1945 for passing A-bomb secrets to the Soviets during World War II. They were put to death by electrocution in 1953.

In 1971, the Nixon administration tried unsuccessfully to use the act to prevent the impending publication of the Pentagon Papers, a secret Department of Defense compilation of documents detailing the history of U.S. involvement in the Vietnam War.

In 2013, Bradley (now Chelsea) Manning, an Army private, was court-martialed under the Act, pled guilty and was sentenced to 35 years in prison for releasing 750,000 classified and sensitive government documents.

Julian Assange, of WikiLeaks fame, who received the documents from Manning and published them on the internet, has been indicted on 17 charges under the law and is facing potential extradition from England to stand trial in the U.S. (The Assange indictment was handed down in 2019 during the Trump administration).

The only thing that has prevented many more prosecutions under the act has been the quandary in which prosecutors have often found themselves — their need to disclose the contents of top secret documents in order to introduce them into evidence during a public criminal trial to obtain a conviction.

In Trump’s case, however, the nation’s most sensitive secrets don’t have to be opened to the public. It would only take one document relating to the national defense to make the case.

Given the mortal sins committed by Trump during his presidency — downplaying the severity of the COVID-19 epidemic, withholding critical military aid to the Ukraine to get dirt on Hunter Biden, fomenting rebellion on Jan. 6 and trying to overturn the results of a legitimate presidential election — the filching of some public papers may not seem like a big deal.

But it’s probably the one misdeed, he won’t be able to get away with.

Elliott Epstein is a trial lawyer with Andrucki & King in Lewiston. His Rearview Mirror column, which has appeared in the Sun Journal for 16 years, analyzes current events in an historical context. He is also the author of “Lucifer’s Child,” a book about the notorious 1984 child murder of Angela Palmer. He may be contacted at epsteinel@yahoo.com

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