Blackcap Blog

Published at 08:20 on 5 September 2022

There is No Material Evidence Indicating Trump Actively Participated in Espionage

There is also no material evidence indicating otherwise, but guess what? That is not how the US criminal justice system works. It is the State’s job to demonstrate the accused are guilty; it is not the accused’s job to demonstrate his or her innocence. That the accused is a particularly unlikable character does not change this. The civil rights of others do not depend on your personal likes or dislikes.

Yes, Trump probably violated the Espionage Act. That is not the same thing as actively participating in espionage. Yes, participating actively in espionage opens one up to prosecution under the Espionage Act, but that Act prohibits more than just espionage. Pertinent to this case, it also prohibits conduct that might facilitate espionage by others, e.g. mishandling classified documents.

Those Empty Folders and Envelopes Are Worrying

Those special, distinctive folders and envelopes for classified documents exist for a good reason: they help such documents be recognized at a glance. This in turn helps those who work with them treat them with the care that they require. It helps co-workers recognize mishandled classified documents.

Early in my career, I held a government security clearance. I never worked with any classified information directly myself, but I did work with people who did. The reason I was cleared was in case any co-worker mishandled classified information: if so, my running across it would not constitute a security breach. Moreover, like all employees being granted a security clearance, I was given training in how to recognize classified documents (and the standard folders and envelopes used to contain them) at a glance, so that I could report the mishandling and it could be corrected.

Folders without documents imply the existence of documents without folders, documents that are significantly harder to recognize at a glance as classified. It is, therefore, quite likely that the FBI overlooked some classified documents in their raid last month. In other words, there are still probably stolen classified documents at Mar-a-Lago. Intelligence services of hostile powers know this, too. Mar-a-Lago is certain to be drawing their attention if it had not done so already.

Trump Still Broke the Law

He stole Federal property, including extremely sensitive classified documents. Those documents had strict standards for handling and storage. Those standards existed for a good reason: to protect them from unauthorized access by possibly hostile parties. After Trump stole them, those standards were not followed.

All available evidence indicates that Trump knew he stole the documents, and that he deliberately sought to frustrate efforts to recover them. Trump’s theft was intentional. As such mens rea exists. If the government were to prosecute, they would probably have a solid case.

Focusing on the Most Lurid Possible Scenarios Helps Trump

If the narrative becomes “Trump deliberately sold classified information for profit,” and it later becomes quite clear that he did not do that, Trump and his apologists can then go around proclaiming victory and accusing their opponents of being unfair to them (and of being authoritarians who want to use the power of the State to baselessly prosecute political opponents).

As such, it’s best to stick with what hard evidence indicates Trump actually did do. If later investigation uncovers actual hard evidence of active participation in espionage, additional charges can always be laid then.