After former President Donald Trump was indicted for his alleged mishandling of highly classified documents, right-wing media has gone into a tailspin to defend Trump from the charges while accusing Democrats of committing similar offenses. 

With this indictment, Trump has become “the most high-profile person to ever face criminal charges under the Espionage Act.” The post-World War 1 legislation makes the mishandling of sensitive government documents that concern national defense illegal, and has been used to prosecute whistleblowers such as Reality Winner and Daniel Ellsberg since its passing. 

Special Counsel Jack Smith has charged Trump under the section of the law that prohibits unauthorized possession of top-secret national defense information and makes it a crime to “wilfully [retain]” that information or fail to “deliver it on demand to the officer or employee of the United States entitled to receive it.” 

The former president’s allies have attempted to divert attention from the severity of his charges by comparing alleged violations of the Espionage Act by Democrats, including former Secretary of State Hilary Clinton and President Joe Biden. 

The FBI, however, determined that by using her private email, Clinton did not intend to break the law and therefore did not act with “wilful retention or obstruction.” 

After another investigation into classified documents at Biden’s Wilmington, Delaware, residence, the FBI found that “no evidence has emerged to suggest that anyone intentionally moved classified documents or tried to impede the FBI from recovering them.” Although there are many fair criticisms of the Espionage Act and its constitutionality, Trump was not acting as a reporter or whistleblower by allegedly showing top-secret documents to civilians like Kid Rock.  

In the days since his indictment was released, right-wing media have attempted to cast doubt on what charges Trump should face, citing the Presidential Records Act as a more applicable framework and claiming that the suit against the former president should therefore be a civil one.

Following his presidential defeat, Trump took 15 boxes of documents that fell under the Presidential Records Act and belonged to the national archivist with him to Mar-a-Lago. The 1978 act states that “any records created or received by the President as part of his constitutional, statutory, or ceremonial duties are the property of the United States government and will be managed by NARA at the end of the administration.” However, Trump also had 11 tranches of documents with varying classification markings, and did not return all these records, thus raising concerns related to the Espionage Act and prompting the search of Mar-a-Lago. 

In a Reuters article about the indictment, lawyer Bradley Moss was cited arguing that the Presidential Records Act argument does not hold water because “the question of whether the documents were personal or presidential records is beside the point." Moss was also quoted pointing out that “the records at issue in this indictment still have classification markings and contain information relating to the national defense” and are therefore being rightfully examined under the framework of the Espionage Act. 

Right-wing figures argue that the Espionage Act is the wrong framework under which to charge Trump, suggest the Presidential Records Act instead:

• As a guest on Fox News’ Special Report with Bret Baier, Trump attorney Jesse Binnall argued that “Congress has decided to make presidents and former presidents specifically subject to [the Presidential Records Act] rather than Espionage Act” and that “Jack Smith's team has it completely legally wrong by charging crimes that quite frankly don't apply.”
• On Fox News’ The Five, Jeanine Pirro called Jack Smith a “loser prosecutor, Jack Smith, who has been slapped down by the United States Supreme Court” and accused him of having a “political agenda” and said the case is “all over the Presidential Records Act, which is a civil suit.” She later whined that “what they do is they put out this narrative indictment, ‘This is a story of wrongdoing, national defense, and let's put an espionage, we’ve got to tie it into the Russia collusion.’”  
• Fox News legal analyst Greg Jarrett joined Fox News’ Hannity to insist that there are  “two systems of justice. … One for Donald Trump and one for everybody else,” claiming that “Garland chose to bastardize the law [ by raiding Trump's home and then seeking an indictment.” 
• As a guest on Fox News’ Jesse Watters Primetime, Article III Project founder Mike Davis also suggested that “the Presidential Records Act, not the Espionage Act, applies.” Davis later said, “You know, I doubt a uniparty judge is going to go along with that, and so this will probably have to get resolved by the Supreme Court,” calling the potential charge a “bogus conviction.”  

Right-wing figures allege that Democrats have committed comparable offenses without being criminally prosecuted:

• Fox News host Mark Levin said Biden, former Vice President Mike Pence, and Hillary Clinton “clearly violated the Espionage Act,” bemoaning the fact that “None of them were criminally charged.” 
• Freshly-resigned Trump lawyer Jim Trusty argued on Fox News’ The Ingraham Angle that the Espionage Act was “not in play when Hillary bleached 30,000 emails that were under subpoena,” also claiming that the prosecution has a “whole bunch of rotating theories because they can’t find the facts they want.” 
• An op-ed for The Federalist claimed that if “taking documents home from the White House is a crime,” there would have been a DOJ investigation of “Biden and his classified documents.” The piece went on, claiming that the case is an example of the “deep state” targeting “dissenters” like Trump and a universal, presumably conservative, “you.”  

Several right-wing personalities claimed ill intent or misguided thinking motivated Trump’s indictment:

• Turning Point USA’s Danny De Urbina tweeted, “The DOJ indicting Trump under the Espionage Act after they literally spied on him as a private citizen is the ultimate gaslight.” 
• The Wall Street Journal’s editorial board published an op-ed questioning the indictment, saying that the “charges are a destructive intervention into the 2024 election” and that “the Justice Department has taken a perilous path” by indicting Trump. The board also wrote that while Trump may have been “cavalier with classified documents, Mr. Trump did not accept a bribe or betray secrets to Russia.” 
• Rogan O'Handley (who operates the right-wing social media account DC Draino) argued that the initial DOJ and FBI aid of Mar-a-Lago was “so they could steal back evidence of their spying on President Trump in the Crossfire Hurricane documents,” also alleging that the indictment is “all a coverup.” 
• A Washington Post op-ed by right-wing columnist Gary Abernathy pushed back on the indictment, saying that while there was not a “good excuse” for Trump to keep sensitive documents, “bringing charges related to the possession of classified documents against a current or former president for anything short of colluding with our enemies or selling them on the black market is unnecessary, unwise and destructive to democracy.”