Did Donald Trump violate the Espionage Act?

On Balance with Leland Vittert

(NewsNation) — Friday’s release of the search warrant used by federal authorities to raid former President Donald Trump’s Mar-a-Lago estate confirmed Trump was in possession of top secret documents, but otherwise created even more questions in a situation where little detail has been available and speculation has abounded.

The warrant did not go into much detail about what was found among the 33 documents found at Mar-a-Lago, other than to say they included “top secret,” “secret,” and “classified” materials.

Perhaps the most intriguing pieces of information to come out of the warrant, however, were the possible crimes the FBI believed Trump may have committed. Violations of the Espionage Act, obstruction of an investigation and destruction or removal of records, were cited.

Trump has claimed all the documents found at Mar-a-Lago were declassified, and therefore, allowed to be in his possession. But, if those documents included sensitive information, such as nuclear weapons documents, it may not matter if they were declassified as it pertains to the Espionage Act.

“(The Espionage Act) is a way to avoid the classification system, because the Espionage Act was passed before the classification system was developed,” said former Department of Justice lawyer Robert Driscoll. “It refers to national defense information. So the classification issue could be relevant to whether or not it is national defense information which a foreign adversary could use, but it’s not a defense to an espionage charge that the information may have been declassified.”

Former Trump White House lawyer May Davis told NewsNation that if indeed the search does involve a violation of the Espionage Act, one of the “huge” unanswered questions will be what were Trump’s intentions in holding on to those documents.

Driscoll said that if the Espionage Act was in play, Trump’s power as president to declassify information at-will won’t matter when it comes to if he broke the law or not.

If Trump was in possession of sensitive documents, especially any related to nuclear weapons, as the Washington Post reported Thursday, and they could harm the United States in the hands of a foreign enemy, it would not matter if they were declassified or not. They’d be illegal to have outside of secure government locations, according to the Espionage Act.

Davis argued, however, that if these documents belonged to Trump and he declassified them, they were his to do what he wants.

But, Driscoll said not enough is known based on the information in the search warrant to know if the Espionage Act was violated, or if any law was broken at all. Driscoll said an affidavit, which has not been made public, would contain all of that information.

“Without knowing why the documents were taken, why they’re sensitive, not every one of these violations would get prosecuted,” Driscoll said. “The Espionage Act most commonly is used for reporters who have leaked information or been the recipients of leaked information. The government has aggressively used the Espionage Act against them.”

As for whether or not that affidavit will ever be released, Driscoll was less than optimistic.

“We probably won’t have it for a long time, if ever,” Driscoll said.

Trump lawyer Christina Bobb told NewsNation on Thursday that Trump and his legal team were stunned by the FBI raid, believing to that point they had complied with everything the Justice Department had asked them for.

Driscoll said if that was true, the Justice Department would have had no reason to search Trump’s property.

“If you complied with the subpoena, there would be nothing to get,” Driscoll said. “There must have been some kind of disagreement or must have been a set of documents the government was previously unaware of that they felt the need to go get.”

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