Jurisprudence

How Bad Would an Espionage Act Violation Be for a Soldier? What About for Trump?

Trump with his mask off scowling in a sea of masked cadets.
Donald Trump joins West Point cadets during the Army-Navy football game at Michie Stadium on December 12, 2020 in West Point, New York. Photo by Brendan Smialowski / AFP

On Thursday, it was reported that the Department of Justice and FBI raided Mar-a-Lago due to fears of multiple documents dealing with nuclear weapons, signals intelligence, and other classified materials being mishandled.

It’s hard to come up with comparable events in U.S. history dealing with critical state secrets at this level.

Then on Friday, the warrant for the search of Mar-A-Lago was released, and in it, three U.S. Codes were cited as probable cause for the search: 18 U.S. Code § 793 (the “espionage act”), which penalizes—among other potentially less damaging things—those who are convicted of “obtaining information respecting the national defense with intent or reason to believe that the information is to be used to the injury of the United States, or to the advantage of any foreign nation,” 18 U.S. Code § 2071, concealment, removal, or mutilation generally of federal records, and 18 U.S. Code § 1519, obstruction of justice.

Advertisement
Advertisement
Advertisement
Advertisement

That President Trump is being investigated under the espionage act implies that we’re well past simple mishandling of classified information, and now entering the possible realm of foreign nations being given classified information to give them an advantage over the United States. This would be a direct national security threat—a service member who did the same thing with classified information would be punished with years of prison time, with the penalty 10 years of sentencing per document. The question now becomes for a DOJ deciding whether or not to prosecute Trump: Should the men and women in our armed forces be held to a different standard than a former commander-in-chief for committing similar crimes to the ones alleged here?

Advertisement

When I was in the military, simply failing to properly identify when one deleted materials dealing with communications security, or bringing outside wireless devices into secure intelligence facilities could lead to investigations and negative administrative or legal action—I was the investigative officer for some of these cases. If a military service member forgetting to properly sign out classified material is an issue of national security, then it follows that putting nuclear secrets at risk is serious also. And if any of this information was let into the hands of foreign nations? Potentially catastrophic.

Advertisement

It cannot be overstated just how damaging to our national security the mishandling of classified materials is, especially ones dealing with our nuclear and intelligence gathering capabilities. The military takes steps to maintain its secrecy while operating, using encrypted communications and computer networks. Even its public news releases are scrubbed to ensure nothing that would give the enemy critical intelligence is there.

Advertisement
Advertisement

The level of documents reportedly obtained in the Mar-a-Lago raid could be well beyond that: anything dealing with either the disposition or status of nuclear weapons is of utmost strategic importance. We’re not just talking about nuclear codes (which the former President did not have access to anymore), but possibly nuclear capabilities. That could include disposition of nuclear weapons, location of nuclear defense capabilities, nuclear countermeasures, our own intelligence on other countries nuclear capabilities, the list goes on. Nuclear deterrence relies on the concept of mutually assured destruction and the fact that opponents can’t be sure they will be able to neutralize your capability before you can.

Advertisement
Advertisement

Anything that threatens a country’s nuclear program is a matter of existential crisis—part of the reason the issue of nuclear missile shields are such a hot topic is because they remove the threat of a country’s nuclear weapons, which in turn makes it much more viable for that nation to strike before a nuclear shield is activated. Nuclear secrets are among the most guarded because of that reason: even the president can’t choose to unilaterally declassify them. The Israeli government to this day maintains a policy of nuclear opacity, never confirming or denying the existence of its nuclear weapons program. The only time the United States ever executed civilians for espionage was in 1953, sentencing Julius and Ethel Rosenberg to death for selling secrets to the Soviet Union; and just this year, former Navy sailor Jonathan Toebbe was sentenced to 12 and half years in federal prison after pleading guilty to “conspiracy to communicate restricted data related to the design of nuclear-powered warships to a person he believed was a representative of a foreign nation.”

Advertisement
Advertisement
Advertisement
Advertisement

The mishandling of Signals intelligence is no less important. Signal intelligence (SIGINT) is the electronic interception of opponent information, best illustrated by the mission of the National Security Agency. It’s a type of intelligence like Human Intelligence (HUMINT), which is intelligence gleaned from human sources, and geospatial intelligence (GEOINT), intelligence gleaned from tools such as satellite imagery and geospatial information. Just as the compromising of a Human Intelligence asset (such as the revelation of spy networks) is detrimental to intelligence gathering, so is the compromising of how we obtain signal intercepts.

It’s not just the information itself that needs to be kept secure: if an adversary is tipped off on the specific intelligence we gathered, then it could cause them to change their own communications security efforts and turn the spigot off a source of information. During World War II, the project to break the German Enigma code was considered ultra top secret. Involving efforts by Polish and British mathematicians, one of whom was Alan Turing, allied scientists broke the code in the ULTRA project: the intelligence gleaned from the effort changed the course of the 2nd World War. The ULTRA project revealed the communications of German bombers over Britain, minimized the threat of the once powerful German U-Boat raids in the Atlantic, and, since the Japanese also utilized the code, helped bring victory to allied forces in the Pacific.

Advertisement
Advertisement
Advertisement

Imagine if Axis forces had been tipped off that the Allies had broken the code, or if current efforts by the West to assist Ukraine by providing intelligence were compromised through the intentional providing of western national security information. The strategic implications are many: not only could intelligence agencies lose their current ability to observe organizations, but the process to develop new signals intelligence assets could take years and intelligence assets on the ground in adversary countries could be put at risk.

It is likely these fears which drove the FBI to act. Tellingly, the raid was conducted with the knowledge of the FBI’s counterintelligence officer. Counterintelligence’s mission is to detect all activities that pose a threat to the security of military operations, and to prevent information from being given to foreign adversaries. The warrant confirms that the United States government had probable cause to believe that information that threatened the security of the nation might potentially have fallen into the hands of those who would use it against it.

Advertisement

Even leaving classified materials insecure and not directly trying to sell or pass them off to foreign agents is not an excuse; if a soldier in the military tried to use that they would still be punished. It is not known what guests have visited Trump’s resort since his removal from office, and there is little doubt that foreign intelligence agents have attempted to obtain information from the premises in the past six years since he was originally elected.

Advertisement
Advertisement

With the citation of the Espionage Act, the nation now faces the horrifying possibility that information was taken to Mar-A-Lago to be misused intentionally, by a person with access to the greatest national security secrets the country had. During the Trump administration, whistleblowers exposed an attempted plan that led Michael Flynn and government officials to transfer nuclear technology to Saudi Arabia by bypassing mandatory policy review laws. This previous behavior calls into question what the intent was of taking these highly qualified documents from the White House in the first place when Trump left office. What other countries might seek to benefit from such an arrangement? What other entities might seek to use such information to target United States servicemembers overseas or intelligence assets? If this was a servicemember performing these actions, what would the expected punishment be?

Is this the same expectation for the former president?

Advertisement