• Show Notes

Dear Reader,

Friday’s unsealing of the Mar-a-Lago search warrant revealed that one of the statutes on which the search was based was the Espionage Act, the same crime for which Julius and Ethel Rosenberg were put to death in the 1950s. Unlike the Rosenbergs, neither Donald Trump nor any of his associates have been charged with selling secrets to the Soviets, but even the unauthorized possession of national defense documents at Trump’s Florida home is a serious crime punishable by imprisonment of up to 10 years. 

The evidence appears strong — the documents were found in Trump’s own home after repeated requests to return them. His claim that he somehow declassified all of the documents, even if he truly believed that, is no defense because the statutes at issue do not require that the documents be classified in the first place. But despite the strength of the evidence and the gravity of the offense, there’s a strong possibility that any mishandling of documents by Trump will result in no charges at all.

The main reason the government would be reluctant to file charges here is for fear of “graymail,” a term used to describe the situation the government sometimes faces when it litigates national security secrets in open court. A defendant can use the risk of public disclosure at trial of the very information the government seeks to protect to force the government to back down from charges. The Classified Information Procedures Act provides some protection from widespread disclosure, but the defendants, their attorneys, the judge, court staff, and a jury must necessarily review any documents that are used as evidence at trial. That possibility often causes members of the intelligence community to balk at the idea of criminal prosecution.