Is Trump being investigated over national security concerns under the Espionage Act?

Potential criminal violations could be more severe than simple breach of records law

The FBI search of Donald Trump’s Mar-a-Lago resort in Palm Beach, Florida has left both supporters and critics of the ex-president alike questioning why the Justice Department would take such an unprecedented step.

At a press conference on Thursday, Attorney General Merrick Garland could do little to tamp down on the speculation, citing federal laws restricting his ability to speak about the case. He did, however, announce that the Justice Department had filed a motion to unseal the warrant and make it public record.

Adding to the speculation is the the refusal from Mr Trump himself to produce a copy of the warrant and show publicly what the stated reasoning was for the search.

One possibility that has begun to be discussed by analysts familiar with presidential records procedures is the potential that the investigation involves not just a simple breach of the Federal Records Act but is actually focused on an alleged breach of the Espionage Act, a World War I-era law most known for dealing with the theft of information that could harm national security.

While the law typically is thought to involve acts of spying against the United State (hence the name), it also contains one provision that could very well deal with the situation that has arisen at Mr Trump’s resort home: the handling of classified documents related to US defence policy or capabilities, and the punishments for negligent management of such files.

The Act specifically states that anyone who “through gross negligence permits [such documents] to be removed from [their] proper place of custody” can face a fine or imprisonment of up to ten years.

That’s where the boxes at Mar-a-Lago come in. If any of the documents in the now reportedly more than two dozen removed from Mr Trump’s property between his own efforts to return files earlier this year and the raid on Monday deal with the US armed forces or related topics, the question of whether their removal and storage at the minimally-secure Palm Beach location constitutes gross negligence. Mr Trump’s properties continue to have Secret Service protection, but the agency’s footprint is minimal when he is out of town.

There’s some evidence lending credence to the theory that the FBI’s investigation could involve the Espionage Act: specifically, the involvement of a top DOJ official in charge of the agency’s counterintelligence division.

The participation of Jay Bratt, chief of the Counterintelligence and Export Control Section (CES) of the DOJ’s national security team, suggests that the interest of federal authorities could very well extend into the realm of national security threats. Mr Bratt was reported by CNN to have attended the June excursion of DOJ officials to Mar-a-Lago, which preceded Monday’s raid and came as the president has been battling the National Archives over documents taken from the White House for months.

At the time, Mr Bratt was reported to have examined the area in which the documents were being stored. That suggests again that investigators are interested in determining whether they were being handled and kept safe with proper care, or whether any were lost, destroyed, or even stolen during the removal of the boxes from the White House.

Mr Bratt’s participation was further confirmed on Thursday, when the DOJ filed a motion to unseal the search warrant used in the raid. Mr Bratt’s name and signature were on the motion.

A veteran of the Justice Department, former national security division chief Mary McCord, suggested that theory was possible during an interview with the Skullduggery podcast this week.

“[T]he fact that we have a national security division lawyer such as Jay Bratt, the head of counterintelligence and export control, does mean that we're talking about national security implications, not simply presidential records that aren't classified,” she remarked.

Mentioning the Espionage Act, she added that the law “actually has provisions that apply to essentially the mishandling through gross negligence, permitting documents to be removed from their proper place, or to be lost, stolen, or destroyed”.

For now it remains unclear how far the Justice Department’s raid on Mr Trump’s property will reach, and whether it will affect any of the ongoing investigations into Mr Trump for his conduct after the 2020 election.

The former president remains under investigation in Georgia for his attempts to push officials there to overturn the election, and a separate grand jury investigation which has recently interviewed a top staffer to Mike Pence is ongoing in Washington, headed by the Justice Department.

The DOJ remains unlikely to comment on specifics of the raid in the immediate days ahead, and White House officials have said that Joe Biden has not been briefed on the specifics of the investigation either.