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On Monday, we noted how it appears that a chief GOP defense of Donald Trump in the face of Espionage Act charges for allegedly withholding sensitive documents will be that he wasn’t literally engaged in spying.
Sens. Lindsey O. Graham (R-S.C.) and Mike Lee (R-Utah) plus Fox News host Mark Levin and the Wall Street Journal editorial board all advanced a version of that argument. Soon, Sen. Marco Rubio (R-Fla.) joined in, telling CBS News: “There’s no allegation that there was harm done to the national security. There’s no allegation that he sold it to a foreign power or that it was trafficked to somebody else or that anybody got access to it.”
This is surely going to be a feature of the GOP’s public defense of Trump, in the service of downplaying the indictment. But what about his actual legal defense?
Experts generally agree that it doesn’t apply.
Some Trump allies have pointed to case law supposedly showing that the government might need to prove not only that Trump willfully retained the documents when the government came calling, but also that he did so with intent to injure the United States. They’ve pointed to a 2006 case, United States v. Rosen, in which a judge required the government to show that to prove its Espionage Act case.
But that case involved some unusual dynamics. And experts say the text of the statute and plenty of other case law indicate the government only needs to demonstrate Trump’s intent was to withhold documents that he understood to be sensitive enough to injure the United States — not actual intent to injure the United States.
The section of the Espionage Act at issue is 18 U.S.C. § 793(e). This makes it a crime to have “unauthorized possession of, access to, or control over [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,” and to “willfully” retain it while failing “to deliver it to the officer or employee of the United States entitled to receive it.”
The question here is what is the required mens rea, i.e., mental state, for Trump to have broken the law.
As a report from the Congressional Research Service last month noted, some provisions of the Espionage Act (a through c) require “intent or reason to believe” that the national defensive information involved “is to be used to the injury of the United States, or to the advantage of any foreign nation.” But the particular provision at issue in the Trump case only requires the defendant to act “willfully” and with “reason to believe” the information “could” be used in such a manner.
Northwestern University law professor Heidi Kitrosser, who has written on Trump and the Espionage Act, said it’s clear that reason to believe the information will be used to cause injury need not be proved.
“For tangible items like documents, 793(e)’s only reference to mens rea is that the retention or conveyance be ‘willful.’ Courts have interpreted this only to mean that ‘the defendant knowingly did an act which the law forbids,’” she said, citing United States v. Morrison. “There is no requirement to show that the defendant intended to harm the United States.”
She added, “This is why the Espionage Act covers much, much more than traditional espionage.”
Kitrosser cited a 2018 district court case, United States v. Martin, in which the court dealt specifically with 793(e). It concluded, “Proof that the defendant knew he was wrongfully retaining the mass of stolen documents is sufficient to satisfy the Government’s willfulness mens rea obligation under § 793(e).”
(In the linked document above, the court ran through multiple examples of courts recognizing that was the standard.)
“It doesn’t mean that he had to intend to harm the United States or advantage a foreign country,” said Dennis Fitzpatrick, a former national security prosecutor who has prosecuted Espionage Act cases.
“If you could prove that, you wouldn’t be in Section 793; you’d be in Section 794,” Fitzpatrick added, referring to more serious espionage charges that carry possible sentences that include death.
Some legal experts are critical of the Espionage Act for including conduct that comes up well shy of traditional espionage. Among them is University of Houston law professor Emily Berman. She wrote a piece for Bloomberg Law this week arguing that Trump shouldn’t be charged under the Espionage Act because it is “overbroad and ambiguous.” She noted it could be used to tar people with the e-word.
But Berman also told The Washington Post that the government need not show Trump acted with intent to injure.
“The question is willfulness of the retention,” Berman said. “Motive is irrelevant.”
Berman also referenced Rosen, the case in which the government required a heightened standard of mens rea under 793(d) and (e). But the court was clear that this applied only because the information was intangible (i.e., passed along via word of mouth).
“Finally, with respect only to intangible information, the government must prove that the defendant had a reason to believe that the disclosure of the information could harm the United States or aid a foreign nation, which the Supreme Court has interpreted as a requirement of bad faith,” the court ruled.
Of course, as that case showed, different circumstances can lead to varying interpretations of the legal requirements. And much will initially be at the discretion of the judge in this case, who remains Trump-nominated U.S. District Judge Aileen M. Cannon. She previously sided with Trump in a controversial way that was later overturned by a higher court, complete with a rather thorough rebuke that said she “abused” her discretion.
But for now, it seems that the government only needs to prove Trump knew this information could damage the United States, which the government set about doing by including in the indictment his past comments about the sanctity of classified documents.
Source link: https://www.washingtonpost.com/politics/2023/06/13/does-trumps-mental-state-matter-espionage-act/