— PHOTOS BY Justice Department via AP
By Stephen L. Carter
Is former President Donald Trump being treated unfairly by the special counsel? That’s the claim being made by many of his supporters following his indictment last week on felony charges related to hundreds of classified documents found at his Mar-a-Lago estate.
The critics are right that the case is unusual, but the former president’s own behavior helps distinguish it from most of the precedents. Allow me to explain.
I should say at the start that I don’t root for a particular side in criminal cases. But I do believe that like cases should be prosecuted alike.
We should be clear, moreover, that the question of whether Trump is being treated differently is an argument only about the 31 counts of the indictment that charge the former president with willfully retaining sensitive documents in violation of Title 18, section 793(e), of the United States Code — a part of the Espionage Act. The six other counts involve obstruction of justice and false statements to investigators, for better or worse the common currency of white-collar prosecution. If he lied, he’s stuck.
Section 793(e) is used regularly in national security cases. To take a prominent current example, violating that provision is the principal charge against Jack Teixeira, the Air National Guardsman arrested in April after classified documents he shared on Discord found their way into the news media.
I’m not a big fan of the Espionage Act, which upon its passage in 1917 was immediately used in the ruthless suppression of dissent, a purpose the drafters probably had in mind. From World War II until the early years of the 21st century, Section 793(e) arose primarily in the prosecution of actual spies — people who shared secrets with foreign governments. More recently, it’s also used to prosecute those who leak to the news media, a practice that became frequent under President Barack Obama’s administration.
But nobody thinks Trump was giving information to the news media. According to the indictment, such dissemination as occurred seems mainly to involve showing off to his friends, including, for example, telling an associate that a document was classified and warning him not to get too close. That’s dreadful behavior, but it’s tough to find cases where anything similar was held to violate the Espionage Act. The principal allegation against Teixeira, for example, is not that he bragged to his online buddies but that he posted images of classified documents “on a publicly accessible U.S. social media platform” (presumably Discord).
Nevertheless, dissemination isn’t a necessary element of a charge under Section 793(e), and there exist rare cases in which it hasn’t been present. Consider the 2012 prosecution of James Hitselberger, a civilian linguist who worked as a military translator. Hitselberger was charged under Section 793(e) after he allegedly printed out classified documents without authorization. Copies were found in his backpack and his living quarters. Apparently Hitselberger was a collector of documents and intended to keep the papers for his own use, although a part of what he took was later found in a California archive.
Part of Hitselberger’s difficulty — and part of Trump’s — is that the courts have not read the statute to require an intent to injure national security. It’s enough for prosecutors to show that the defendant had reason to know he had no legal right to possess the documents.
True, courts generally hold that to violate Section 793(e), the defendant’s actions must be “not prompted by an honest mistake as to one’s duties, but prompted by some personal or underhanded motive.” This suggests a potential Trump defense: “I honestly believed that I had the legal right to retain the documents.”
Perhaps it was with an eye toward rebutting this contention that the prosecutors chose to include in the indictment so many examples of what they describe as efforts by the former president to conceal what he had retained. After all (one imagines the prosecution telling the jury) — if Trump thought he had done nothing wrong, there was no reason to play fast and loose in response to a grand jury subpoena.
On the other hand, if we want to think about fairness, we might frame the debate as involving not the accusation but the outcome. Let’s go back to Hitselberger, the linguist who kept classified papers for his own use and transferred a handful to an archive. In the end, the Espionage Act charges were dropped in return for Hitselberger’s guilty plea to a single misdemeanor count of mishandling classified documents under a different part of Title 18, Section 1924(a).
That provision was crafted expressly to deal with people who weren’t spies but kept classified materials when they knew they shouldn’t have. It’s the section under which former CIA Director John M. Deutch agreed to plead guilty in January 2001, after classified documents were found on an unauthorized laptop. (No plea was entered, because Deutch was pardoned by President Bill Clinton on his last day in office.) In 2016, during the investigation of Hillary Clinton’s use of a nonsecure email system while serving as secretary of state, Section 1924(a) was often mentioned as a possible ground for charges.
It’s also the provision under which President Clinton’s former national security adviser, Sandy Berger, was permitted to plead guilty in 2005, after knowingly removing classified documents from the National Archives. In some ways, Berger’s case is a mirror version of Trump’s — Berger only took a handful of documents, but he could not plausibly have claimed to have a right to them. He initially attempted to conceal his wrongdoing and the FBI ultimately searched his home. After coming clean, he received a sentence of community service and a $50,000 fine.
Given the precedents, I’d suggest that the test of whether Trump is being treated like everyone else would be the willingness of prosecutors to drop all charges in the indictment if the former president pleads guilty to a misdemeanor under Section 1924(a) and pays a hefty fine.
That middle ground would, of course, require that Trump admit he was in the wrong. And that’s something he’s never been willing to do.
