The latest ad from the anti-Trump Lincoln Project promotes the same mistaken argument that Donald Trump himself has made - that the former president has been charged with spying or espionage. Trump was charged under a part of the Espionage Act concerning the willful retention of national defense information. That's different from spying.
The ad likens Trump to some of the country's worst traitors, all charged under different portions of the Espionage Act related to passing classified information to U.S. adversaries, either the former Soviet Union or Cuba. That's not what Trump is accused of in the June 8 federal indictment.
The Lincoln Project, a group of mostly former and current Republicans who regularly produce biting ads targeting Trump, often runs those ads where Trump lives, specifically to get under the former president's skin. The 60-second "Espionage" ad, for example, was aired this week on Fox News in the Palm Beach area, which includes Mar-a-Lago, Trump's home and club; in Bedminster, New Jersey, where Trump spends his summers; and in Washington, D.C.
But in this case, the group is making the same argument Trump himself has been making - implying that he has been charged as a spy - though for very different reasons. Trump has wrongly said he is being charged as a spy to make the argument that the Department of Justice is overreaching. The Lincoln Project, on the other hand, simply makes the argument that Trump is accused of "one of the worst crimes imaginable" and therefore belongs in prison.
The ad's narrator says, "Indicted again, this time for violating the Espionage Act. One of the worst crimes imaginable, but he joins a select list of Americans also indicted for this crime. Robert Hanssen, Aldrich Ames, Ana Montes, John Walker, Ronald William Pelton, all indicted for violating the Espionage Act with the prison terms that traitors and spies against America deserve. . There's no excuse for espionage."
These are the people listed in the ad, all spies who provided classified information to U.S. adversaries:
As we have written, Trump was charged with 31 alleged violations of a section of the Espionage Act. But he is not accused of being a spy.
Rather, Trump is charged with violating 18 U.S.C. 793 (e), a section of the act concerning the willful retention of national defense information. That part of the law makes it a crime to have "unauthorized possession" of documents "relating to the national defense." It is not only unlawful if someone "willfully communicates, delivers, transmits" such documents to "any person not entitled to receive it" - which the indictment alleges Trump did twice, once to an author and once to a staffer at his political action committee - but the law also says it is illegal if a person "willfully retains the same and fails to deliver it to the officer or employee of the United States entitled to receive it."
Like the ad does, Trump and some of his defenders have also misleadingly claimed that Trump was charged with espionage.
"Espionage charges are absolutely ridiculous," Republican Sen. Lindsey Graham said on ABC's "This Week" on June 11. "Whether you like Trump or not, he did not commit espionage. He did not disseminate, leak or provide information to a foreign power or to a news organization to damage this country. He is not a spy. He's overcharged."
In his speech in New Jersey following his June 13 arraignment in Miami, Trump said, "The Espionage Act has been used to go after traitors and spies. It has nothing to do with a former president legally keeping his own documents."
Trump also raised the "spy" straw man in a speech in Georgia on June 12. Trump noted that when he left office, there were photos taken of boxes of documents stacked on the sidewalk outside the White House prior to their transport to Florida.
"If that's a spy operation or if that's something bad, we did a very poor job, I will tell you," Trump said.
But, again, those are a mischaracterization of the charges.
"Trump is not accused of committing espionage, or being a spy," David Alan Sklansky, a professor who teaches criminal law at Stanford University, told us via email. "He is accused of illegally holding onto documents with sensitive information about the national defense, lying to federal investigators, obstructing justice."
The Espionage Act "contains a bunch of different criminal prohibitions related to national defense and national security; one of them applies to anyone who, without authorization, holds onto documents with sensitive national defense information," Sklansky added. "That's one of the crimes that Trump is accused of having committed. But he is not charged with 'espionage' or with being a 'spy.' Those words do not even appear in the indictment."
Now, Trump's detractors are misleadingly using the charges against Trump to tie him to spies convicted of passing classified information to U.S. adversaries.
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