Why Espionage Act charges don't mean prosecutors are accusing Donald Trump of spying

One of the defenses offered by allies of former President Donald Trump following his federal indictment is that he’s no spy; so why is he being charged like one?

Sen. Lindsey Graham, R-S.C., made this argument June 11, on both ABC News’ "This Week" and Twitter.

"President Trump will have his day in court," said Graham, a strong ally of Trump, during his interview. "But espionage charges are absolutely ridiculous. Whether you like Trump or not, he did not commit espionage. He did not disseminate, leak or provide information to a foreign power or to a news organization to damage this country. He is not a spy. He's overcharged."

But categorizing the charges in Trump’s indictment as "espionage charges" can leave the wrong impression. 

The prosecution has charged Trump with crimes included in a 1917 law called the Espionage Act. But not all of the crimes covered by the Espionage Act involve espionage. The charges against Trump would not fall under the commonly understood category of "spying."

"Sen. Graham and others are doing a terrific job trying to confuse the public regarding the charges against Mr. Trump," said Bradley Moss, a Washington, D.C., attorney who specializes in national security matters. "The Espionage Act encompasses multiple felony provisions that have nothing to do with ‘espionage’ or ‘spying."

The indictment includes 37 counts against Trump, some of which are shared with his personal aide at Mar-a-Lago, Walt Nauta. 

Of those, 31 counts solely against Trump involve the "willful retention of national defense information," relating to his unauthorized possession and storage of federal documents, some of which were classified.

According to the indictment, formally released June 9, they fall under a section of U.S. law known as 18 U.S.C. § 793 (e). 

The relevant portion of the law deals with the proper and improper handling of sensitive documents. It says:

"Whoever having unauthorized possession of, access to, or control over any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted, or attempts to communicate, deliver, transmit or cause to be communicated, delivered, or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it to the officer or employee of the United States entitled to receive it … shall be fined under this title or imprisoned not more than ten years, or both."

Although someone can be charged under this provision if they disseminate or transmit certain documents, that’s not the only way to run afoul of this law. 

Someone who "willfully retains" a covered document "and "fails to deliver it to the officer or employee of the United States entitled to receive it" can be fined or imprisoned if found guilty.

That’s what the prosecution says happened in Trump’s case.

The indictment says that Trump, "having unauthorized possession of, access to, and control over documents relating to the national defense, did willfully retain the documents and fail to deliver them to the officer and employee of the United States entitled to receive them."

The National Archives had been trying to retrieve documents from Trump since he left office in 2021. The archives retrieved 15 boxes of materials from Mar-a-Lago in mid-January 2022. After finding at least 100 documents with classified information among them, it told the Justice Department. 

The Justice Department issued a subpoena in May and retrieved more documents from Trump in June. It later sought a search warrant, which FBI agents executed Aug. 8, 2022.

"The government does not have to prove that Trump was giving them to a foreign power to use against the United States," said Joan Meyer, a former prosecutor and partner at the law firm Thompson Hine LLP.

A different section of the law, Section 794, relates to the common definition of spying — "gathering or delivering defense information to aid a foreign government." Trump was not charged under that section of the law.

Under the provision the prosecutors are using, Trump’s "motive or purpose" for holding onto the documents "is irrelevant to the crimes that have been charged," said Ric Simmons, an Ohio State University law professor.

Meyer said Graham’s argument is essentially that Americans should "give Trump a break because they cannot prove he did anything treasonous with the classified information he was porting around Mar-a-Lago." 

Whether this works in the court of public opinion remains to be seen. But in court, Meyer said, that argument is unlikely to fly as a reason to dismiss the charges. 

Despite this, Meyer said she expects Trump to make the argument anyway, "because we have seen it in other cases."

Graham’s office told PolitiFact that recent charges brought under the Espionage Act have mostly been for spying, or at least transmitting secrets to another party. In the 1970s, Daniel Ellsberg was charged under the law for leaking the Pentagon Papers to The New York Times, though the charges were later dismissed. In 2018, Reality Winner, a former military contractor, was sentenced to five years in prison for leaking classified intelligence to The Intercept.

Possession alone has typically not been prosecuted, which Graham’s office said supports his assertion that the special counsel is "overcharging" Trump in this case.

The indictment offers no evidence that Trump did anything to damage the national interest. But it does include evidence that he disseminated information to others, Simmons said.

The indictment says he revealed classified information to an author, a publisher, and two staff members at his club in Bedminster, New Jersey, none of whom had the requisite security clearance. 

"Sharing this information with an author who is writing a book is very similar to sharing with a news organization," Simmons said.

PolitiFact Staff Writer Amy Sherman contributed to this article.