The Espionage Act and the Presidential Records Act -- A Statutory Mess That Might Excuse Non-Compliance By An Ex-POTUS

Nothing Is As Simple As It Seems

The Presidential Records Act is not a clear path to exoneration for former President Trump.

But the Espionage Act is not “cut and dried” in its prohibitions when applied to a former POTUS who on his last day in office had absolute — ABSOLUTE — authority to see and possess every document and piece of information held by the Executive Branch.

Trump has been charged by the Smith SCO with 31 counts of violating the “Espionage Act” — Title 18 United States Code Section 793.

Section 793(e) reads as follows:

(e) 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 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 entitled to receive it;

Counts 1 through 31 of the indictment include on the following charging language from this subsection of Sec. 793(e)

Immediately below this language, the Indictment lists in serial fashion 31 separate documents which the Special Counsel alleges contained “national defense information” — “NDI” for short.