Trump's federal indictment: What is the Espionage Act?

Donald Trump has been indicted on federal criminal charges related to a two-year saga during which he allegedly possessed and did not return classified documents after leaving the White House, even after receiving a subpoena.

Trump faces 37 felony charges which include alleged violations of the Espionage Act, according to an indictment unsealed on Friday.

Here's more about that century-old law:

The origins

The Espionage Act was enacted in 1917 during Woodrow Wilson's administration to counter German spying within the U.S. Historians consider it to have been applied overzealously during the First World War to include a host of administration critics and dissidents, with even a member of Congress, Richard Pettigrew, embroiled in an case after telling a newspaper reporter the war was a capitalist scheme. Pettigrew's charges were ultimately dropped.

Section 793 of the act deals with the improper retention or dissemination of national defence information defined as "any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defence, or information relating to the national defence 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."

The maximum prison sentence under the law is 10 years, and offenders can also be fined.

While Trump has made the debatable claim that he declassified the documents found at this Florida estate, the classification status of a document is not mentioned in the act, and is therefore likely irrelevant.

The famous cases

The most momentous Espionage Act case involvedEthel Rosenberg and her husband Julius who, in 1953, were executed after being convicted of givingatomic bomb secrets to the Soviets.

Both insisted they were innocent. And historians and lawyers who have reviewed documents and transcripts released since have been left with many questions about the case. Some believe shewas framed in an overzealous prosecution while her husband, an Army Signal Corps engineer who belonged to the U.S. Communist Party, seems to have played a central role in a spy ring.

The act has been utilized in the recent past in more clear-cut cases involving Russian spying, including that offormer CIA officer Aldrich Ames, currently serving a life sentence, and former FBI agent Robert Hanssenwho died this week afer spending more than two decades in prison.

In the 1970s, Defence Department consultant Daniel Ellsberg copied and leaked documents that revealed U.S. strategy in the Vietnam War. He faced charges in what became known as "the Pentagon Papers" case includingconspiracy and violations of the Espionage Act.

President Richard Nixon's aides hired burglars who broke into Ellsberg's psychiatrist's office, and his case ended in a mistrial when evidence surfaced about the government-ordered break-ins and wiretapping.

WATCH | Ellsberg looks back:

The Pentagon Papers and the man who leaked them | The National Interview

7 years ago

Duration 13:10

Nearly 50 years after The Pentagon Papers were leaked, a movie about that ground-breaking moment and the man who leaked them is up for an Academy Award. For The National Interview, Adrienne Arsenault sits down with Daniel Ellsberg, who risked everything to tell Americans that the Nixon government was lying to them about the Vietnam War

With the internet allowing freerflow of information, the act's use has picked up in recent years in cases involving government and military employees and contractors. Such defendants have included Edward Snowden, Chelsea Manning, Reality Winner and Wikileaks publisher Julian Assange.

The cases involving Assange and Snowden have yet to be concluded, as they are overseas and out of the reach of U.S. authorities.

The criticisms

Justice John Marshall Harlan II, who sat on the U.S. Supreme Court from 1955 to 1971, once described the act as a "singularly opaque document" and its use in prosecutions beyond the world of traditional spycraft has engendered criticism andcalls for reforms.

The Justice Department during the Obama administration prosecuted more people under the law for leaking sensitive information to the public than all previous administrations combined.

As part of those efforts, the Obama administration obtained records of phone lines and reporters' cell phones at The Associated Press, as part of an investigation into the disclosure of information about a foiled al-Qaeda terrorist plot. Then-Fox News journalist James Rosen was similarly tracked and briefly named internally as a possible criminal conspirator in the probe of a news leak related to a North Korea story.

During the last session of Congress, Democrats Ron Wyden and Ro Khanna, along with Republican Thomas Massie, introduced a bill that pushed for reform of the Espionage Act.

The act "currently provides the executive branch with sweeping powers that are ripe for abuse to target journalists and whistleblowers who reveal information some officials would rather keep secret," Wyden said in a 2022 statement.

In the news

National guardsman Jack Teixeira was indicted with Espionage Act violations in recent weeks after allegedly sharing classified documents online with members of a Discord group.

There are other current cases where the act has been in play.

Former CIA software engineer Joshua Schulte, who has yet to be sentenced, was convicted last year after a second trial related to the leak of so-called Vault 7 agency hacking tools to Wikileaks.

Former CIA officer Alexander Yuk Ching Ma is scheduled for a 2024 trial. Ma, who worked for the CIA from 1982 to 1989, is accused of revealing sources and operational tradecraft to Chinese intelligence officers in Hong Kong in 2001.

Trump precedents?

The original act was soon extended to incorporate an ultimately short-lived Sedition Act component. SocialistParty of America leader and labour organizer Eugene Debs was convicted of sedition after publicly promoting resistance to the military draft and U.S. involvement in the First World War.

He ran for president in 1920 while in prison, earning 3.4 per cent of the vote. Months later, his sentence was commuted and he was freed. Debs, 70, died in 1926.

There is still nothing to prevent a presidential candidate from running while behind bars, though with just 18 months until the election, that's an unlikely scenario for Trump if he wins the Republican nomination.

Recently, according to The Washington Post, charges under the Espionage Act were considered when Gen. David Petraeus, a former CIA director, mishandled classified documents. Federal prosecutors and Petraeus's lawyers worked out a deal to avoid trial, and he was spared both Espionage Act charges and prison time.

Trump, however, may face a more serious slate of charges, and his defiance and refusal to admit fault unlike his former vice-president Mike Pence in a recently settled classified documents incident make the prospects of a plea deal doubtful.

Read the indictment: