Right-wing commentators are attempting to mount a strange public defense of former President Donald Trump from the charges he now faces under the Espionage Act. In essence, Trump’s apologists argue that even if he willfully mishandled and withheld classified documents, improperly stored them in unsecure conditions, and misled investigators who attempted to recover them, the charges he faces for violating the Espionage Act would still be inappropriate because he has not been accused of spying on behalf of a foreign government or selling U.S. secrets.
The problem is the applicable legal standard doesn’t require Trump to have been a literal spy or traitor — the allegation that he willfully committed all the above conduct is enough to be a violation of the law.
Washington Post senior writer Aaron Blake explained that while “some provisions of the Espionage Act” require a direct intention to harm the United States, “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.” For example, when Trump boasted to a political supporter that he now possessed a classified “plan of attack” regarding a foreign country (reportedly Iran) he certainly must have known that the disclosure of such information could potentially put U.S. service members in harm’s way during an actual conflict.
In addition, The New York Times has a lengthy rundown of other cases in which people have been sentenced to prison or paid harsh fines for knowingly mishandling classified information, even as they did not act directly to harm the United States. In the case of a former Air Force intelligence officer who cooperated with investigators but was nevertheless sentenced just this month to three years in prison, his attorney told the court that his client “now shares a stage” with the former president of the United States.
This whole drama played out on Tuesday’s edition of Fox News’ America Reports, when law professor and Fox News contributor Jonathan Turley alleged that the Espionage Act was an “odd fit” for charging Trump in this case. “That act does talk about mishandling, but it also has an intent standard, to harm national security or to help some foreign adversary,” he said.
“Nobody is arguing that there’s evidence of harm to national security or an intent to do so,” Turley claimed, contrasting this with Trump’s seeming move to keep documents “sort of like a trophy” and “out of vanity.”
Fox News anchor Bret Baier then asked further questions: “Was there a document destroyed, was there a document that was somehow accessed or given to the press or some foreign entity? Was there harm here, in understanding how they’re handled? But does that factor into the legal aspects of this?”
Following Baier and Turley’s exchange, former federal prosecutor and Fox News contributor Andy McCarthy proceeded to bust Turley’s argument. In addition to demonstrating that the documents at issue here are not even “presidential records” but instead “agency reports,” McCarthy further explained that the Espionage Act has “various prongs to it,” ranging from traditional spying to the willful retention of unauthorized material and refusal to return them.
“So what President Trump is accused of is that part of the Espionage Act,” McCarthy explained rather succinctly. “It's irrelevant whether there was an intent to harm the United States or not, that's not a defense to this charge. What the charge is is he was unauthorized to have it, he willfully retained it, they demanded to have it back, and he refused. That’s the crime.”
There is clear precedent for criminal charges against individuals facing allegations that pale in comparison to the accusations against Trump, but these facts mean nothing to his defenders.
- Then-Trump attorney Jim Trusty: “The Espionage Act includes a whole bunch of language that not just that the documents implicate national defense, but that your intent is to violate the sovereignty of the United States, to hurt the United States, or to help a foreign power. That is absurd under any theory of this case. They have a whole bunch of rotating theories because they cannot find the facts they want.” (Trusty resigned as Trump’s attorney the next day.) [Fox News, The Ingraham Angle, 6/8/23]
- Conservative radio host and Washington Post columnist Hugh Hewitt: “First read of indictment and my reaction is ‘That’s it? The conspiracy is with the aide who moved the boxes? No documents were sold or given to third parties not in his close employ?’” [Twitter, 6/9/23]
- Fox News host Mark Levin: “But I want the audience to understand there is not a scintilla of information in this 50-page document, in these 38 charges, that a single document was destroyed, that a single document was altered, that a single foreign country got any information of any kind whatsoever. I just wanted to make that point.” [Fox News, The Story with Martha MacCallum, 6/9/23]
- The Wall Street Journal editorial board: “However cavalier he was with classified files, Mr. Trump did not accept a bribe or betray secrets to Russia. The FBI recovered the missing documents when it raided Mar-a-Lago, so presumably there are no more secret attack plans for Mr. Trump to show off.” (The same editorial conceded the point, “As usual, Mr. Trump is his own worst enemy,” and that he should have returned the documents upon demand.) [The Wall Street Journal, 6/9/23]
- Former U.S. attorney and right-wing political activist Brett Tolman: “But right now the real focus needs to be on why did they bring this case under the Espionage Act when they know they have to prove the intent to harm the United States or to contribute to a foreign adversary's ability to gather intelligence on this country. That intent does not seem to be anywhere in that indictment. So, for now, there’s a lot that we want answers to but right now the focus has to be on the legitimacy or illegitimacy of this indictment against President Trump.” [Fox News, The Faulkner Focus, 6/13/23]
- Fox News host Laura Ingraham: “So no one — no one — thinks Trump has any nefarious motives by holding these documents. He shouldn't have kept them but no way there was any intent to be a threat to national security. That is absurd.” She then seemingly called for a popular revolt if Trump is convicted of a crime, a continuation of the network’s unhinged demagoguery: “So the DOJ might, might be able to meddle in another election courtesy of federal investigations. But soon enough, there will be a critical mass of Americans who simply say, ‘I will not comply.’ And then what are they going to do — put them all in jail?” [Fox News, The Ingraham Angle, 6/13/23]
- During a panel discussion in one of Fox’s purported “straight news” hours Wednesday afternoon, Fox & Friends co-host Brian Kilmeade revived the network’s distortions and false equivalencies between Trump’s withholding of documents and President Joe Biden’s voluntary return of classified documents found from his prior government service. “I have no idea, your intent,” Kilmeade said. “I don't think Donald Trump had ill intent, either. Did he sell anything to Iran? Did he go 1-800-Vladimir Putin? There's no ill intent there. Did they have a hard time giving it back? Go ahead.” [Fox News, The Story with Martha MacCallum, 6/14/23]