Why Donald Trump won’t be charged under the Espionage Act

Pittsburgh

Unauthorized violence

Pittsburgh Tribune-Review, “Man shot, dies in Lincoln-Lemington,” August 14, 2022, https://triblive.com/local/man-shot-dies-in-lincoln-lemington-sunday-night/


Gilead

Donald Trump

Coup attempt

Reading Marcy Wheeler’s article from yesterday[7] feels to me like coming into a conversation somewhere in the middle. I would need to read back on her blog to try to catch up and I haven’t done this. The article does not stand on its own.

That said, she’s been at this for a while and she has a good reputation. There are a couple points I would glean from her effort:

  1. The Department of Justice is likely to try to settle any charges relating to the Espionage Act against Donald Trump out of court. Prosecution would expose classified material.[8] We are unlikely to ever learn the full contents of what was taken from Mar-a-Lago, but more seriously, it seems to me that the negotiations around a settlement may be protracted. Which would be par for the course with Trump.
  2. Trump appears more concerned with a possible charge of obstruction of justice.[9] This possible charge was also highlighted by Renato Mariotti.[10]

It’s also worth noting again that none of this likely precludes Trump from resuming the presidency if he wins in 2024[11] and it is awfully hard to imagine a Trump Justice Department continuing to press charges against him.

I would also, on general principle, caution against getting ahead of the evidence, which I suspect Wheeler of doing. The prospect of an end to this nightmare within a nightmare is certainly enticing and I yearn for it.[12] But I have learned to expect unexpected twists and turns along the way and we are not at the end of this particular road yet.

Jonathan Capehart, “Liz Cheney is the Obi-Wan to Trump’s Darth Vader,” Washington Post, August 8, 2022, https://www.washingtonpost.com/opinions/2022/08/08/liz-cheney-obi-wan-kenobi-trump-darth-vader/

Eric Tucker and Michael Balsamo, “Trump says FBI conducting search of Mar-a-Lago estate,” Associated Press, August 8, 2022, https://apnews.com/article/donald-trump-mar-a-lago-government-and-politics-9e8d683afe87389407950af7ccfdbdd6

Scott R. Anderson et al., “What We Do and Don’t Know About the FBI’s Mar-a-Lago Search,” Lawfare, August 9, 2022, https://www.lawfareblog.com/what-we-do-and-dont-know-about-fbis-mar-lago-search

Devlin Barrett et al., “Mar-a-Lago search appears focused on whether Trump, aides withheld items,” Washington Post, August 9, 2022, https://www.washingtonpost.com/national-security/2022/08/09/trump-fbi-search-mar-a-lago/

David Frum, “Stuck With Trump,” Atlantic, August 9, 2022, https://www.theatlantic.com/ideas/archive/2022/08/trump-fbi-mar-a-lago-search-republicans-loyalty/671084/

Julia Ioffe, “Defund… the F.B.I.?” Puck News, August 9, 2022, https://puck.news/defund-the-f-b-i/

Perry Stein, “Garland vowed to depoliticize Justice. Then the FBI searched Mar-a-Lago,” Washington Post, August 9, 2022, https://www.washingtonpost.com/national-security/2022/08/09/garland-trump-raid-politics/

Jan Murphy and Charles Thompson, “FBI delivers subpoenas to several Pa. Republican lawmakers: sources say,” Harrisburg Patriot-News, August 10, 2022, https://www.pennlive.com/news/2022/08/fbi-delivers-subpoenas-to-several-pa-republican-lawmakers-sources-say.html

Tina Nguyen, “‘The DeSantasy Is Over,’” Puck News, August 10, 2022, https://puck.news/the-desantasy-is-over/

Steve Peoples, “GOP rallies around Trump following FBI search of his estate,” Associated Press, August 10, 2022, https://apnews.com/article/gop-rallies-around-donald-trump-a0f20a219b1090fd02f529acf744f246

Amber Phillips, “What could the Mar-a-Lago search mean for Trump legally?” Washington Post, August 10, 2022, https://www.washingtonpost.com/politics/2022/02/07/what-is-presidential-records-act-how-did-trump-violate-it/

Devlin Barrett et al., “FBI searched Trump’s home to look for nuclear documents and other items, sources say,” Washington Post, August 11, 2022, https://www.washingtonpost.com/national-security/2022/08/11/garland-trump-mar-a-lago/

Erik Larson, “Trump’s ‘Planted Evidence’ Claim Unlikely to Stand Up In Court,” Bloomberg, August 11, 2022, https://www.bloomberg.com/news/articles/2022-08-11/trump-s-planted-evidence-claim-unlikely-to-stand-up-in-court

Erin McCarthy, “Who is Rep. Scott Perry, the Trump ally from Pa. whose phone was seized by the FBI?” Philadelphia Inquirer, August 11, 2022, https://www.inquirer.com/politics/pennsylvania/scott-perry-jan-6-trump-fbi-raid-20220811.html

Tara Palmeri, “The Trump Informant Guessing Game: Knives Are Out!” Puck News, August 11, 2022, https://puck.news/the-trump-informant-guessing-game-knives-are-out/

Steve Peoples, “Trump’s bond with GOP deepens after primary wins, FBI search,” Associated Press, August 11, 2022, https://apnews.com/article/2022-midterm-elections-wisconsin-donald-trump-marjorie-taylor-greene-b5c2ee83bb655c43e1deb9c46f2a6020

Andrew Solender, “Political threats spiral,” Axios, August 11, 2022, https://www.axios.com/2022/08/12/political-threats-spiral

Paul Waldman and Greg Sargent, “Merrick Garland’s surprise announcement calls the Trump-GOP bluff,” Washington Post, August 11, 2022, https://www.washingtonpost.com/opinions/2022/08/11/garland-announcement-trump-fbi-bluff/

Devlin Barrett and Josh Dawsey, “Agents at Trump’s Mar-a-Lago seized 11 sets of classified documents, court filing shows,” Washington Post, August 12, 2022, https://www.washingtonpost.com/national-security/2022/08/12/trump-warrant-release/

Alex Leary, Aruna Viswanatha, and Sadie Gurman, “FBI Recovered Eleven Sets of Classified Documents in Trump Search, Inventory Shows,” Washington Post, August 12, 2022, https://www.wsj.com/articles/fbi-recovered-eleven-sets-of-classified-documents-in-trump-search-inventory-shows-11660324501

Lisa Rein, “Under fire, Homeland Security watchdog delays probe — with GOP help,” Washington Post, August 12, 2022, https://www.washingtonpost.com/politics/2022/08/12/joseph-cuffari-homeland-security-watchdog-investigation/

Betsy Woodruff Swan, Kyle Cheney, and Nicholas Wu, “FBI search warrant shows Trump under investigation for potential obstruction of justice, Espionage Act violations,” Politico, August 12, 2022, https://www.politico.com/news/2022/08/12/search-warrant-shows-trump-under-investigation-for-potential-obstruction-of-justice-espionage-act-violations-00051507

Eric Tucker and Michael Balsamo, “Trump calls for ‘immediate’ release of Mar-a-Lago warrant,” Associated Press, August 12, 2022, https://apnews.com/article/donald-trump-search-unsealing-the-warrant-5e00a3e6728cd77daa0d2180d078fcb6

Clyde Hughes, “Rep. Greene files articles of impeachment against Attorney General Garland,” United Press International, August 13, 2022, https://www.upi.com/Top_News/US/2022/08/13/-Marjorie-Taylor-Greene-articles-impeachment-Merrick-Garland-Attorney-General/4231660394406/

Arwa Mahdawi, “The Mar-a-Lago search prompts a big question: who snitched?” Guardian, August 13, 2022, https://www.theguardian.com/commentisfree/2022/aug/13/mar-a-lago-search-ivanka-trump-week-in-patriarchy

Renato Mariotti, “Espionage Isn’t the Strongest Case Against Trump. It’s Simpler Than That,” Politico, August 14, 2022, https://www.politico.com/news/magazine/2022/08/14/trump-classified-documents-doj-opinion-00051584

Marcy Wheeler, “Trump's Timid (Non-Legal) Complaints about Attorney-Client Privilege,” Empty Wheel, August 14, 2022, https://www.emptywheel.net/2022/08/14/trump-claims-the-ssa-receipt-includes-privileged-materials/

Eugene Scott, “Graham must testify in Ga. probe of effort to overturn 2020 election, judge rules,” Washington Post, August 15, 2022, https://www.washingtonpost.com/national-security/2022/08/15/trump-2020-election-georgia-investigation/


  1. [7]Marcy Wheeler, “Trump's Timid (Non-Legal) Complaints about Attorney-Client Privilege,” Empty Wheel, August 14, 2022, https://www.emptywheel.net/2022/08/14/trump-claims-the-ssa-receipt-includes-privileged-materials/
  2. [8]Marcy Wheeler, “Trump's Timid (Non-Legal) Complaints about Attorney-Client Privilege,” Empty Wheel, August 14, 2022, https://www.emptywheel.net/2022/08/14/trump-claims-the-ssa-receipt-includes-privileged-materials/
  3. [9]Marcy Wheeler, “Trump's Timid (Non-Legal) Complaints about Attorney-Client Privilege,” Empty Wheel, August 14, 2022, https://www.emptywheel.net/2022/08/14/trump-claims-the-ssa-receipt-includes-privileged-materials/
  4. [10]Renato Mariotti, “Espionage Isn’t the Strongest Case Against Trump. It’s Simpler Than That,” Politico, August 14, 2022, https://www.politico.com/news/magazine/2022/08/14/trump-classified-documents-doj-opinion-00051584
  5. [11]Scott R. Anderson et al., “What We Do and Don’t Know About the FBI’s Mar-a-Lago Search,” Lawfare, August 9, 2022, https://www.lawfareblog.com/what-we-do-and-dont-know-about-fbis-mar-lago-search
  6. [12]David Benfell, “I cannot yet tell you my 2024 forecast was wrong,” Not Housebroken, August 13, 2022, https://disunitedstates.org/2022/08/13/i-cannot-yet-tell-you-my-2024-forecast-was-wrong/

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