'The Espionage Act: In the warrant to search Mar-a-Lago, the Justice Department listed three crimes for which it believed evidence was at Trump’s Florida resort residence. In the section titled “Property to be Seized,” the Department stated,
All physical documents and records constituting evidence, contraband, fruits of crime, or other items illegally possessed in violation of 18 U.S.C. §§ 793, 2071 , or 1519...Section (d)...is problematic for the ex-president. It prohibits willful communication of national defense information to any person not entitled to see it. It also prohibits willful retention of national defense information and the failure to return it on demand to the U.S. government. Simply put, an Espionage Act charge could be made against Trump if he willfully communicated or retained national defense information.
For espionage...it is sufficient that the documents are “relating to the national defense”—not that they are “classified.” (This makes sense, because the Espionage Act of 1917 predates the modern classification system.) As explained by Professor Heidi Kitrosser in Lawfare, this has meant, according to relevant court cases, two things: they are “closely held” in that they “have not been made public and are not available to the general public,” and the disclosure must be “potentially damaging to the United States or useful to an enemy of the United States.”
As reported by Rolling Stone...some of Trump’s top advisers and lawyers have told him that they expect the Justice Department to charge him for retaining highly sensitive and classified documents...“Looks like they’re going for it,” one of the sources said. “People close to the president have discussed with him what we think is going to happen soon, and how he and everyone else needs to be ready for it … we have to consider that Trump has skirted justice and accountability all his life. But to my eye, it looks like Special Counsel Jack Smith has finally caught up to him...'
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