Why? Because they are classified.Įven if we did, we would not be able to make an informed judgment of their significance because what they relate to is likely itself classified – we’d be making judgments in a void. None of us will get to see the documents at issue, nor should we. By law and regulation, NDI materials may not be publicly released and must be handled as sensitive.Ĭases involving classified information or NDI are nearly impossible to referee from the cheap seats. This kind of information includes a vast array of sensitive information including military, energy, scientific, technological, infrastructure and national disaster risks. The Espionage Act applies to all national defense information, or NDI, of which classified materials are only a portion. If they had been declassified, they should have been marked as such.Īnd even assuming the documents were declassified, which does not appear to be the case, Trump is still in the criminal soup. It actually doesn’t work that way – presidential declassification requires an override of Executive Order 13526, must be in writing, and must have occurred while Trump was still president – not after. One theory floated by Trump defenders is that by simply handling the materials as president, Trump could have effectively declassified them. Top secret-sensitive compartmented information is reserved for information that would truly be damaging to the US if it fell into foreign hands. Some of the documents the FBI sought and found in the Trump search were designated “top secret” or “top secret-sensitive compartmented information.” Both classifications tip far to the serious end of the sensitivity spectrum. Petraeus shared classified information with an unauthorized person for reasons having nothing to do with a foreign government. Two recent senior Democratic administration officials – Sandy Berger, national security adviser during the Clinton administration, and David Petraeus, CIA director under during the Obama administration – each pleaded guilty to misdemeanors under the threat of Espionage Act prosecution.īerger took home a classified document – in his sock – at the end of his tenure.
It concerned the unauthorized soliciting, obtaining, possessing and publishing of sensitive information that might be of help to a foreign nation if disclosed. One of the most famous Espionage Act cases, known as “Wikileaks,” in which Julian Assange was indicted for obtaining and publishing secret military and diplomatic documents in 2010, is not about leaks to help foreign governments.
The driver of the Department of Justice’s concern under Section 793 is the sensitive content and the connection to national defense information, known as “NDI.”
Willful unauthorized possession of information that, if obtained by a foreign government, might harm US interests is generally enough to trigger a possible sentence of 10 years.Ĭurrent claims by Trump supporters of the seemingly innocuous nature of the conduct at issue – simply possessing sensitive government documents – miss the point. All of these prohibited activities fall under the separate and more commonly applied section of the act – 18 U.S.C. It can also apply to refusing a government demand for its return. Transmitting can mean moving materials from an authorized to an unauthorized location – many types of sensitive government information must be maintained in secure facilities. More typically, as in the Trump investigation, the act applies to the unauthorized gathering, possessing or transmitting of certain sensitive government information.
All three received life sentences.īut spy cases are rare. That aspect of the law is best exemplified by the convictions of Jonathan Pollard in 1987, for spying for and providing top-secret classified information to Israel former Central Intelligence Agency officer Aldrich Ames in 1994, for being a double agent for the Russian KGB and, in 2002, former FBI agent Robert Hanssen, who was caught selling US secrets to the Soviet Union and Russia over a span of more than 20 years. section 794 – does relate to spying for foreign governments, for which the maximum sentence is life imprisonment. When you hear “espionage,” you may think spies and international intrigue.