The word “weaponized” has been used by Trump, his supporters and even his GOP rivals to describe the Department of Justice. Do you see the Trump prosecution as different in any notable way from other Espionage Act prosecutions that you’ve worked on or observed?

Durkin: Obviously, it’s different because of who the defendant is. But I see it in kind of an opposite way: If Trump were anyone other than a former president, he would not have been given the luxury of a summons to appear in court. There would be a team of armed FBI agents outside his door at 6:30 in the morning, he would have been arrested and the government would be immediately moving to detain. So the idea that he’s being treated differently is true – but not from the way his supporters seem to be arguing.

Ferguson: What you have is a method, manner and means of pursuing this matter and bringing it forward to indictment that actually completely comports with the deepest traditions and standards of the Department of Justice, which would normally consider all contexts and the best interests of society.

If Trump were your client, what would you advise him to do?

Durkin: The first thing I would do is show him a guidelines memo, which we typically create for every client to help them understand the potential consequences of the charges. Under the U.S. Sentencing Guidelines, the consequences for Trump under this indictment are serious. My quick calculations indicate that you’re talking about 51 to 63 months in the best case and in the worst case, which I’m not sure would apply, 210 to 262 months.

Whether he wants to roll heavy dice, that’s up to him. But those are very heavy dice.

Ferguson: I might pull media statements that he has made in the last couple years and explain to him how they have complicated the ability to defend him. I’d put on the table to him that I need to see every statement that he is going to make in the political realm about this before he makes it. I’d tell him he’s otherwise basically hanging himself.

I’d tell him: If you want to die in jail, keep talking. But if you want to try to figure out a way that brings about an acceptable resolution - a plea deal that opens the door to a lighter jail sentence than what the guidelines threaten and, possibly, even no jail time – you need to turn it down or at least have it screened by your lawyers.

Are there specific things he might say between now and a trial that could deepen his trouble?

Ferguson: No question about that. And people should understand that the things that he said already are being used as evidence of intent. From now on, the repetition of them constitutes new admissible evidence. It’s not like, “Oh, I’ve already said it, so I might as well keep saying it.”

That does not mean that he cannot offer the broad brush characterization, “I’m being wronged. This is the weaponization of law enforcement and the justice system against me, and I will be vindicated,” however imprudent I might think that was. But anything that goes beyond that, and into the actual particulars, referencing the documents themselves, will just make it worse.

The Trump indictment provides extensive details of what was said and done. Do you take those as true, or as allegations that need to be proved?

Ferguson: Both. They are technically the allegations that need to be proven, but when you’re speaking at that level of granularity, these are things that actually exist in proof, the proof that is to come.

The government basically raises the bar when it provides this form of granularity. The federal government is a risk-averse enterprise when it comes to these matters, so nothing is put in the indictment unless it exists in actual fact.

Durkin: If you’re defending someone, you treat the allegations as true.

Can you imagine a situation with all of the facts laid out in this indictment but where they would not indict?

Durkin: No.

Ferguson: That’s why we both say that in fundamental respects, this isn’t different from other national security cases. These cases work from the premise that this is a fundamental compromising of the interests of the United States. And those are the cases that the government pursues tooth and nail. With so much in the public domain, and with so much of the defendant himself speaking to all of this, it almost puts the government in a position of saying, “Well, OK, if we have to, here we go.”

Durkin: There’s only one reason the government could not bring this case, and that’s fear of violence or an attack on the republic. Once you do that, then you might as well close the Department of Justice and forget about any rule of law.

Trump knows a lot of state secrets. An angry Trump in prison has risks. If he were found guilty, what does incarceration look like for him?

Durkin: I can tell you what it would mean to anyone else. They’d be put in a hole in the wall in maximum security at Florence, Colorado, and they would apply what’s called “Special Administrative Measures.” Several of my terrorism clients have had those imposed on them. There’s a microphone outside their solitary confinement to monitor anything that they say, even between prisoners. Their mail is extremely limited. Their telephone contact is extremely limited. And that’s what would happen to anyone else similarly situated.

Ferguson: Trump’s insistence on keeping talking about this creates a record that would justify isolation in maximum security on the basis that “We can’t trust this man not to continue to talk. We can’t trust him not to further share these secrets with people who may wish to do harm with them. The only way to avoid that is to put him in isolation in supermax where he doesn’t get to talk with people, except under these extremely closely monitored circumstances, certainly isn’t in a general population situation, gets to take a walk in a courtyard for one hour out of the 24 hours of the day, and the other 23 hours, leaving him mostly without human contact.”

Is there a specific line he could cross that would force the government to seek to detain him prior to trial?

Durkin: I predict that if he keeps it up, and especially if he keeps suggesting or threatening violence, that the government will be put in a position where they don’t have a choice but to try to move to detain him. In the real world, that’s what would happen if it was anybody but him. Normally, you can’t be threatening this type of stuff without being put in detention.

Ferguson: The smart play here would be for a judge to put him under a gag order that instructs him on what he may and may not say publicly. That’s already been done by a New York judge in the other pending criminal case against Trump. This would be a complicated exercise in balancing First Amendment rights with national security interests.

Thomas A. Durkin, Distinguished Practitioner in Residence, Loyola University Chicago and Joseph Ferguson, Co-Director, National Security and Civil Rights Program, Loyola University Chicago

This article is republished from The Conversation under a Creative Commons license. Read the original article.

The federal court-authorized search of former President Donald Trump’s Florida estate has brought renewed attention to the obscure but infamous law known as the Espionage Act of 1917. A section of the law was listed as one of three potential violations under Justice Department investigation.

This article is republished from The Conversation under a Creative Commons license. Read the original article.

The Espionage Act has historically been employed most often by law-and-order conservatives. But the biggest uptick in its use occurred during the Obama administration, which used it as the hammer of choice for national security leakers and whistleblowers. Regardless of whom it is used to prosecute, it unfailingly prompts consternation and outrage.

We are both attorneys who specialize in and teach national security law. While navigating the sound and fury over the Trump search, here are a few things to note about the Espionage Act.

Espionage Act seldom pertains to espionage

When you hear “espionage,” you may think spies and international intrigue. One portion of the act – 18 U.S.C. section 794 – does relate to spying for foreign governments, for which the maximum sentence is life imprisonment.

That aspect of the law is best exemplified by the convictions of Jonathan Pollard in 1987, for spying for and providing top-secret classified information to Israel; former Central Intelligence Agency officer Aldrich Ames in 1994, for being a double agent for the Russian KGB; and, in 2002, former FBI agent Robert Hanssen, who was caught selling U.S. secrets to the Soviet Union and Russia over a span of more than 20 years. All three received life sentences.

But spy cases are rare. More typically, as in the Trump investigation, the act applies to the unauthorized gathering, possessing or transmitting of certain sensitive government information.

Transmitting can mean moving materials from an authorized to an unauthorized location – many types of sensitive government information must be maintained in secure facilities. It can also apply to refusing a government demand for its return. All of these prohibited activities fall under the separate and more commonly applied section of the act – 18 U.S.C. section 793.

Chelsea Manning, in uniform, after being sentenced on Aug. 21, 2013, to 35 years in prison after being found guilty of several counts under the Espionage Act.

Photo by Mark Wilson/Getty Images

A violation does not require an intention to aid a foreign power

Willful unauthorized possession of information that, if obtained by a foreign government, might harm U.S. interests is generally enough to trigger a possible sentence of 10 years.

Current claims by Trump supporters of the seemingly innocuous nature of the conduct at issue – simply possessing sensitive government documents – miss the point. The driver of the Department of Justice’s concern under Section 793 is the sensitive content and the connection to national defense information, known as “NDI.”

One of the most famous Espionage Act cases, known as “Wikileaks,” in which Julian Assange was indicted for obtaining and publishing secret military and diplomatic documents in 2010, is not about leaks to help foreign governments. It concerned the unauthorized soliciting, obtaining, possessing and publishing of sensitive information that might be of help to a foreign nation if disclosed.

Two recent senior Democratic administration officials – Sandy Berger, national security adviser during the Clinton administration, and David Petraeus, CIA director under during the Obama administration – each pleaded guilty to misdemeanors under the threat of Espionage Act prosecution.

Berger took home a classified document – in his sock – at the end of his tenure. Petraeus shared classified information with an unauthorized person for reasons having nothing to do with a foreign government.

The act is not just about classified information

Some of the documents the FBI sought and found in the Trump search were designated “top secret” or “top secret-sensitive compartmented information.”

Both classifications tip far to the serious end of the sensitivity spectrum.

Top secret-sensitive compartmented information is reserved for information that would truly be damaging to the U.S. if it fell into foreign hands.

One theory floated by Trump defenders is that by simply handling the materials as president, Trump could have effectively declassified them. It actually doesn’t work that way – presidential declassification requires an override of Executive Order 13526, must be in writing, and must have occurred while Trump was still president – not after. If they had been declassified, they should have been marked as such.

And even assuming the documents were declassified, which does not appear to be the case, Trump is still in the criminal soup. The Espionage Act applies to all national defense information, or NDI, of which classified materials are only a portion. This kind of information includes a vast array of sensitive information including military, energy, scientific, technological, infrastructure and national disaster risks. By law and regulation, NDI materials may not be publicly released and must be handled as sensitive.

A judge unsealed a search warrant that shows that the FBI is investigating Donald Trump for a possible violation of the Espionage Act.

AP Photo/Jon Elswick

The public can’t judge a case based on classified information

Cases involving classified information or NDI are nearly impossible to referee from the cheap seats.

None of us will get to see the documents at issue, nor should we. Why?

Because they are classified.

Even if we did, we would not be able to make an informed judgment of their significance because what they relate to is likely itself classified – we’d be making judgments in a void.

And even if a judge in an Espionage Act case had access to all the information needed to evaluate the nature and risks of the materials, it wouldn’t matter. The fact that documents are classified or otherwise regulated as sensitive defense information is all that matters.

Historically, Espionage Act cases have been occasionally political and almost always politicized. Enacted at the beginning of U.S. involvement in World War I in 1917, the act was largely designed to make interference with the draft illegal and prevent Americans from supporting the enemy.

But it was immediately used to target immigrants, labor organizers and left-leaning radicals. It was a tool of Cold War anti-communist politicians like Sen. Joe McCarthy in the 1940s and 1950s. The case of Julius and Ethel Rosenberg, executed for passing atomic secrets to the Soviet Union, is the most prominent prosecution of that era.

In the 1960s and 1970s, the act was used against peace activists, including Pentagon Paper whistleblower Daniel Ellsberg. Since Sept. 11, 2001, officials have used the act against whistleblowers like Edward Snowden. Because of this history, the act is often assailed for chilling First Amendment political speech and activities.

The Espionage Act is serious and politically loaded business. Its breadth, the potential grave national security risks involved and the lengthy potential prison term have long sparked political conflict. These cases are controversial and complicated in ways that counsel patience and caution before reaching conclusions.

Joseph Ferguson, Co-Director, National Security and Civil Rights Program, Loyola University Chicago and Thomas A. Durkin, Distinguished Practitioner in Residence, Loyola University Chicago