Photo of Trump on top of a red background next to photos of his federal indictment

Andrea Austria / Media Matters

Right-wing media are twisting the facts about the Espionage Act and Trump's federal indictment

Written by Ruby Seavey, Audrey McCabe & Zachary Pleat

Published

Right-wing media have made numerous false or misleading claims about felony criminal charges former President Donald Trump faces under the Espionage Act, misinterpreting the law and defending his reckless mishandling of classified information.

On June 9, the Department of Justice unsealed an indictment against Trump that contained 37 felony counts related to the mishandling of classified documents found at his Florida estate. Thirty-one of the counts stem from the Espionage Act, which can apply to individuals who have improperly retained national defense information.

Section 18 U.S. Code 793 (e) of the Espionage Act, which Trump is charged under, makes keeping government records a crime if the material pertains to national defense and if “the possessor ... willfully retains the same [documents related to national defense] and fails to deliver it on demand to the officer or employee of the United States entitled to receive it.”

Right-wing media immediately responded to Trump’s indictment with meltdowns and baseless accusations that the investigation and prosecution were political in nature. Since then, as they continue to mount defenses on behalf of the former president, right-wing media have zeroed in on and attacked the charges he faces for potentially violating the Espionage Act. Many conservative pundits have inaccurately interpreted the federal law, claiming that Trump is legally bound only by the Presidential Records Act, or have baselessly claimed that a number of Democrats should also be charged under the Espionage Act.

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  • FACT: The Presidential Records Act mandates turning over all official government records to the National Archives, and Trump can’t be charged under it

    • After a presidency, the archivist of the United States is required to maintain custody over official presidential records, not the former president. Additionally, the Presidential Records Act has no enforcement mechanism, and Trump was instead charged under the Espionage Act for willfully retaining national defense information. [CBS News, 6/13/23]

  • FALSE CLAIM: Trump should have faced only civil action under the Presidential Records Act, not criminal charges under the Espionage Act

    • Fox News legal analyst Gregg Jarrett misleadingly claimed that “anything created during a presidency, whether it is classified or not, can be maintained by a former president, period.” Jarrett on Hannity: “Merrick Garland, the attorney general, is criminalizing a civil dispute over documents that's governed exclusively by a civil statute, the Presidential Records Act. That act means anything created during a presidency, whether it's classified or not, can be maintained by a former president, period. But instead of seeking an injunction, let's say, or a production of records in a civil court and let the judge hash it out, Garland chose to bastardize the law by raiding Trump's home and then seeking an indictment today.” [Fox News, Hannity, 6/8/23]

  • FACT: The Espionage Act and the Presidential Records Act are independent from each other, and presidents are subject to both

    • Jason R. Baron, former director of litigation at the National Archives and Records Administration, explained how presidents are independently subject to both laws. Baron told FactCheck.org, “The former president is simply confused on the law when he says that the Presidential Records Act ‘rules’ over the Espionage Act or other provisions of the criminal code set out in the Indictment. The criminal acts charged in the Indictment stand independently of the former President’s separate failure to follow the requirements of the Presidential Records Act.” [FactCheck.org, 6/13/23]

  • FALSE CLAIM: The Espionage Act was never intended to apply to presidents; only the Presidential Records Act was

    • Fox News host Mark Levin ended a long-winded rant on his June 12 radio show by arguing that the Espionage Act “was never intended to” apply to presidents “because it had no application.” Rather, Levin argued, presidents were intended to be subjected only to the Presidential Records Act: “And isn't it funny? Congress passes this statute in 1978 and doesn't make a single reference — not a single reference to the Espionage Act. Why is that? Because it had no application. It was never intended to. That's why it’s a civil process under the Presidential Records [Act].” [Westwood One, The Mark Levin Show, 6/12/23]

  • FACT: The Presidential Records Act requires all official presidential records to be turned over to the National Archives — former presidents cannot retain them

    • In a June 14 article, Wall Street Journal reporter Byron Tau explained that the Presidential Records Act doesn't allow Trump to keep official documents from his presidency as personal property: “The Presidential Records Act makes all official documents from a president’s time in office the property of the American people. Under the law, Trump was required upon leaving office to surrender all official documents from his time in government to the National Archives, which has legal responsibility for managing them.” Tau further explained that former presidents are allowed to have access to their records, even classified ones, “but such access doesn’t grant possession and has to be negotiated with the government.” [The Wall Street Journal, 6/14/23]

  • FALSE CLAIM: The Presidential Records Act allowed Trump to retain classified documents

    • The Wall Street Journal editorial board argued that the indictment “doesn’t fit the spirit or letter” of the Presidential Records Act, which they argue would allow presidents to retain classified documents. They wrote: “The indictment assumes that Mr. Trump had no right to take any classified documents. This doesn’t fit the spirit or letter of the PRA, which was written by Congress to recognize that such documents had previously been the property of former Presidents. If the Espionage Act means Presidents can’t retain any classified documents, then the PRA is all but meaningless.” [The Wall Street Journal, 6/9/23]

  • FACT: The Espionage Act covers a number of other crimes unrelated to spying

    • The BBC explained that the Espionage Act “is not strictly used to punish spies seeking to harm the US.” The “part of the law referenced by the special counsel's indictment in Mr Trump's case - 18 US Code 793 (e) - does not say that the suspect must be working with another country to deliberately harm the US.” National security lawyer Bradley Moss was quoted by CNN further explaining this fact: “The Espionage Act is routinely relied upon to prosecute individuals for willful retention or dissemination of national defense information. While the law’s name makes one think it only concerns actual spying, its provisions are far broader than that narrow concept and have been upheld by the courts time and time again.” [BBC, 6/15/23; CNN, 6/15/23]

  • FALSE CLAIM: There's no evidence Trump gave classified material to foreign nations or enemies, so he couldn’t have violated the Espionage Act

    • Before claiming that Trump “is not a traitor,” Fox host Brian Kilmeade referred to a different section of the Espionage Act than what Trump is charged under to argue that the indictment is legally unsound. Kilmeade said: “Now, even Trump's worst critics are not alleging that he passed classified material to our enemies, Russia or China, or anybody else. The Espionage Act makes clear that espionage is defined as this, it is information, quote, ‘to be used to the injury of the United States or the advantage of any foreign nation.’ Trump didn't do any of that. He is not a traitor. I think you can agree with that. But a new interpretation of this act simply — seemingly emerged just a few days ago — actually a few years ago to be accurate, during the Obama years.” [Fox News, Fox News Tonight, 6/13/23]

  • FACT: Intent to disseminate information or hurt the United States does not matter — willfully and knowingly withholding national defense information violates the Espionage Act

    • According to legal experts, in order for Trump to have violated the Espionage Act, the Department of Justice needs only to prove that Trump willfully retained information that pertained to national security. According to Heidi Kitrosser, a law professor at Northwestern University, “There is no requirement to show that the defendant intended to harm the United States.” [The Washington Post, 6/13/23]

  • FALSE CLAIM: There is no evidence Trump intended to hurt the U.S., which is required in order to violate the Espionage Act

    • Kilmeade claimed that he doesn’t “think Donald Trump had ill intent” when he retained the classified documents: “I have no idea [of] your intent. I don't think Donald Trump had ill intent, either. Did he sell anything to Iran? Did he go 1-800-Vladimir Putin? There's no ill intent there. They have a hard time giving it back? Go ahead.” [Fox News, The Story with Martha MacCallum, 6/14/23]

  • FACT: Bill Clinton's tapes were of personal conversations with historian Taylor Branch and acted as a diary for the former president. A federal court has ruled that they are indeed personal and not presidential records.

    • A federal court has ruled that former President Bill Clinton’s tapes of conversations with Taylor Branch, a Pulitzer Prize-winning historian, about his time in office were personal records, not presidential ones. Additionally, as law professor Peter Margulies told The Associated Press, Clinton's and Trump’s cases are fundamentally different. Clinton “incidentally recorded some calls on official business” while talking to Branch; “In contrast, the documents that Trump kept were all presidential records from the moment they arrived at the Oval Office from other parts of the government.” [The Washington Post, 6/16/23; The Associated Press, 6/14/23]

  • FALSE CLAIM: Clinton stuffed tapes of conversations with foreign leaders that contained classified information in a sock drawer, and he wasn’t charged

    • Fox News host Jesse Watters argued that Clinton was able to decide which presidential records were personal and that he “stuffed” classified information into “a sock drawer”: “It all started with Bill Clinton. President Clinton taped conversations he had with other foreign leaders for eight years. What did Clinton do with these tapes? Well, Clinton took them home to Chappaqua and stuffed them in a sock drawer. These tapes were about as highly classified as you can get. These conversations President Clinton had with heads of state about war, about national security strategy, about nuclear posture. Did Bill Clinton declassify these before he took them home to Chappaqua? No. He took them home and he stuffed them in the sock drawer.” [Fox News, Jesse Watters Primetime, 6/9/23]

  • FACT: The indictment states that classified documents in Trump’s possession included national defense information about American military vulnerabilities and nuclear secrets

    • The indictment laid out the serious nature of the documents retained by Trump. According to the indictment, “The classified documents Trump stored in his boxes included information regarding defense and weapons capabilities of both the United States and foreign countries; United States nuclear programs; potential vulnerabilities of the United States and its allies to military attack; and plans for possible retaliation in response to a foreign attack. The unauthorized disclosure of these classified documents could put at risk the national security of the United States, foreign relations, the safety of the United States military, and human sources and the continued viability of sensitive intelligence collection methods.” [U.S v. Donald J. Trump and Waltine Nauta, 6/8/23]

  • FALSE CLAIM: Trump shouldn’t be charged because government records are over-classified

    • In a rant defending Trump, Kilmeade suggested that the classified documents Trump had withheld should not have been classified in the first place, citing reporting on over-classification of government documents. Kilmeade then moved on to complaining that other current and former government officials who were found to have classified documents in their possession weren’t charged. [Fox News, Fox News Tonight, 6/13/23]

  • FACT: Unlike Trump, Hillary Clinton cooperated with the investigation, and investigators found no evidence of intent by her to violate the law

    • According to The Wall Street Journal, Hillary Clinton didn’t willfully retain classified documents in the same manner as Trump. James Comey, the director of the FBI at the time, said that an extensive investigation into Clinton “hadn’t found any evidence of intent to violate the law.” Trump’s Espionage Act charges, however, center on his “willful” retention of government records. [The Wall Street Journal, 6/14/23]

  • FALSE CLAIM: Clinton violated and should have been charged under the Espionage Act

    • On Hannity, Jarrett argued that Clinton “skated on the crimes in her email scandal, she violated the Espionage Act, obstructed justice”: “Hillary Clinton invented a lie to frame her opponent. And then she conspired with others to give that false information to government officials, to trigger a probe of Donald Trump. Now, those are crimes, Sean. Conspiring to defraud the government, lying to the FBI. Indeed, Durham criticizes the FBI for not opening a criminal investigation of Clinton instead of Donald Trump. But you know, Hillary, we have seen it time and again, is Teflon. She skated on the crimes in her email scandal, she violated the Espionage Act, obstructed justice. Comey knew it, but without authority, he cleared her.” [Fox News, Hannity, 5/15/23]

  • FACT: Biden returned documents upon request and allowed the FBI to search his home

    • While the Biden probe is ongoing, he has cooperated with the Department of Justice investigation into his handling of classified documents (unlike Trump). Biden returned documents to the government after they were found and willingly allowed the FBI to search his properties for additional material. [NBC News, 6/8/23; The Associated Press, 1/23/23; PBS, 1/14/23]

  • FALSE CLAIM: Biden violated and should be charged under the Espionage Act

    • According to Levin, Biden “violated the Espionage Act” and went uncharged: “Biden and Pence, as former VPs, clearly violated the Espionage Act. Hillary Clinton clearly violated the Espionage Act. None of them were criminally charged.” [Twitter, 6/11/23]

  • FACT: Hunter Biden has been charged by the Justice Department for tax and gun crimes and has already pleaded guilty

    • Hunter Biden’s case is substantively different than Trump’s. Biden was investigated by the Department of Justice for more than four years by a Trump-appointed U.S. attorney in his home state of Delaware. That investigation eventually focused on potential tax and gun crimes, not crimes related to national security or classified information. Biden was later charged and pleaded guilty to two federal tax-related misdemeanors and reached a deal with prosecutors on one separate charge related to gun possession on June 20. [The Washington Post, 6/9/23; CNN, 6/20/23]

  • FALSE CLAIM: Hunter Biden violated and should be charged under the Espionage Act

    • On The Sean Hannity Show, disgraced former Fox host Bill O’Reilly argued that Hunter Biden should be charged under the Espionage Act: “Look, Hunter Biden is guilty. He's going to be indicted, but the Justice Department will indict him on lesser crimes than you know, doing something in the espionage area, which is where this would fall by the way, Hannity. It would fall in espionage.” [Premiere Radio Network, The Sean Hannity Show, 5/10/23]