How the Trump case compares
Is former president Donald Trump being treated unfairly by the special counsel?
I don’t root for a particular side in criminal cases. But I 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.
I’m not a big fan of the Espionage
Act, which upon its passage in 1917 was immediately used in the 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 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.
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 living quarters. Apparently Hitselberger was a collector of documents.
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.
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. 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.
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 require that Trump admit he was in the wrong. And that’s something he’s never been willing to do.