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Espionage Act charges, which Trump could face, cover more than 'spying'

Charges under the epic-sounding law wouldn’t mean that prosecutors need to prove the former president was working with a foreign government.

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UPDATE (June 8, 2023, 10:36 p.m. ET): A federal grand jury in Florida indicted Donald Trump on Thursday on seven counts, including at least one charge related to the Espionage Act, NBC News reported.

The term “espionage” can conjure images of foreign spies, disguises, dark alleys and the like. So you might think the Espionage Act, mentioned in recent media coverage of Donald Trump, means prosecutors have to prove he was working on behalf of a foreign government. But the federal law covers broader conduct than that, as we may soon see if Trump is indicted in special counsel Jack Smith's classified documents probe.

One part of the act, first passed by Congress during World War I, that could surface in a Trump indictment is 18 USC 793(e). Carrying a 10-year possible sentence, it prohibits people from, among other things, unauthorized possession of national defense-related documents that are willfully retained and not delivered to the government officer or employee entitled to receive them.

In Trump’s potential case, the National Archives and Records Administration was entitled to receive the records Trump kept at Mar-a-Lago and failed to deliver. That section of the Espionage Act wouldn't require Trump, for example, to share the documents with a foreign government in order to be charged.

Contrast that with another part of the law, 18 USC 794, which deals with “classic spying” for foreign governments, the sort of thing that one might think of more readily when hearing the term “espionage.”

But the focus in legal analysis of this Trump probe — such as in this detailed model prosecution memo from Just Security — has been more on section 793 and other potential violations related to mishandling government documents, such as concealing government records and converting government property.

Of course, in addition to any potential charges under the Espionage Act or other substantive criminal allegations, there are also possible obstruction-related offenses, which are more self-explanatory, coming against Trump.

But if you see a Trump indictment containing Espionage Act charges, it won’t necessarily be an allegation — and therefore won’t be a requirement to prove — that he was working as a spy.

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