By Mitchell Epner
The warrant obtained by the FBI to search former President Donald Trump’s office and residence at Mar-A-Lago has been made public, and it is a shocker. And I’m sure you’ve heard this before, but this could be the big one—the case where Trump can’t escape legal accountability.
Appendix B to the search warrant states that the warrant is to search for evidence of violations of the Espionage Act, 18 U.S.C. Section 793, and two other statutes.
What did former President Trump do that could be considered a violation of the Espionage Act?
It appears that Trump allegedly held on to top secret records that he originally lawfully possessed after their return had been demanded by the National Archives.
Section 793(d) of the Espionage Act states “Whoever, lawfully having possession of…any document…relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation…willfully retains the same and fails to deliver it on demand to the officer or employee of the United States entitled to receive it” is guilty.
Does it matter that former President Trump states that he de-classified the materials found at Mar-A-Lago?
No.
Section 793(d) is not restricted to classified materials. Rather, it covers any document “relating to the national defense” that contains information that the possessor has reason to believe would be detrimental to the United States if made public. Here, the search warrant return states that documents seized from Mar-A-Lago include “classified/TS/SCI documents” (meaning Top Secret or Secure Compartmentalized Information), “Top Secret Documents,” “Secret Documents,” and “Confidential Documents.”
Even if former President Trump de-classified these documents before his term ended, the information contained in those documents would still fall squarely within Section 793(d).
How do we know that former President Trump was asked to return these documents to the US government?
In February 2022, the National Archives revealed that former President Trump had brought 15 boxes of materials from the White House to Mar-A-Lago.
David Ferriero, the National Archivist, wrote to Congress that “NARA has asked the representatives of former President Trump to continue to search for any additional Presidential records that have not been transferred to NARA, as required by the Presidential Records Act.”
More recently, it was revealed that a subpoena was issued for return of these documents, but that former President Trump did not return all of the documents demanded.
What penalties does former President Trump face if convicted under the Espionage Act?
If former President Trump were to be indicted, tried, and convicted under the Espionage Act (all huge ifs), he would face a presumptive sentence of between 14-17.5 years imprisonment.
The penalty for each count of violation of Section 793(d) is imprisonment of “not more than ten years.” Each document wrongfully retained by former President Trump would constitute a separate count of conviction, meaning that he could face up to 10 years for each document.
Sentences in the federal system, however, are calculated by reference to the United States Sentencing Guidelines. These guidelines create a presumptive sentence, from which a District Court judge may depart in their discretion, although, ordinarily, the District Court judge will impose a sentence within the range calculated by the Sentencing Guidelines.
Violation of the Espionage Act is governed by Section 2M3.2:
Because Top Secret (and above) information was apparently wrongfully retained by former President Trump, the guideline offense level would be 35. Although there could be upward adjustments for various aggravating factors (such as an abuse of a position of trust), an offense level of 35 and no prior criminal history would expose former President Trump to a presumptive sentence of 168-210 months (14 – 17.5 years).
What happens next and how long will it take?
There is likely to be a long period before the next activity in this case becomes public.
First, because the documents were seized by a search warrant, there is a possibility that some of the documents might be covered by attorney-client privilege. The Department of Justice will use a “taint team” to review the documents for privilege, before handing any of them over to the investigative team of FBI agents and Assistant United States Attorneys. Former President Trump’s attorneys will be able to participate in this process. To the extent that there is any dispute about the privileged status of any of the documents, the decision will be made by a federal judge. This process usually takes weeks or months.
The DOJ follows a tradition (which is not included in any written DOJ policy) of not taking public action in a politically-sensitive case in close proximity to an election. Depending on who you ask, this unwritten policy means that the DOJ will not indict a case (or otherwise make news) within 60 or 90 days of a general election. The search warrant was executed at Mar-A-Lago 91 days before the midterm elections on November 8.
When the DOJ emerges from the quiet period after the November 8 elections, the next logical step would be an indictment, which might include charges other than violations of the Espionage Act.
An indictment of a former President of the United States would be unprecedented. Of course, the actions of former President Trump are likewise unprecedented.
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