Jun 17: Daniel Dale, Multiple non-spies have received prison sentences under Espionage Act provision Trump is charged with violating

As published by CNN on June 15, 2023

Fact check: Multiple non-spies have received prison sentences under Espionage Act provision Trump is charged with violating

By Daniel Dale, CNN, June 15, 2023

Former President Donald Trump argued in a Tuesday speech that it is “outrageous” for him to be charged under the Espionage Act for having classified documents at his Mar-a-Lago club and residence.

“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 said.

But classified documents, like all official records from a presidency, legally belong to the federal government, not to an ex-president. And Trump is also misleading people about the breadth of the Espionage Act.

Facts First: The Espionage Act does not merely target “traitors and spies.” Even during Trump’s own presidency, obscure citizens who kept classified material at their homes, and were never accused of communicating it to anyone or aiding a foreign country, were convicted and sentenced to years in prison under the very same Espionage Act provision Trump is now charged with breaking.

The Espionage Act provision under which Trump was indicted by a Florida federal grand jury on 31 counts, Section 793(e), makes it a crime when someone without authorization “willfully retains” national defense information “and fails to deliver it to the officer or employee of the United States entitled to receive it.” Contrary to the rhetoric this week from Trump and allies like Republican Sen. Lindsey Graham, someone certainly does not have to be a spy to be charged under that willful retention provision.

“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,” said Bradley Moss, a national security lawyer in private practice.

House Majority Leader Rep. Steve Scalise argued on Fox on Wednesday that Trump would not have faced this indictment “if his name was Donald Smith,” an average American. In reality, though, the willful retention provision of the Espionage Act has in recent years alone ensnared multiple people who had not previously been in the public eye.

Here are seven cases in which little-known Americans have been convicted and sentenced to prison under this provision between 2017, when Trump took office, and this year. None of the cases involved charges of actual espionage.

Robert Birchum, 2023

Birchum, who was an Air Force lieutenant colonel with a decorated 29-year military career, pleaded guilty in February to one count of violating the willful retention of national defense information provision after investigators discovered during the first month of the Trump presidency in 2017 that Birchum had stored more than 300 classified documents or files in his home, a storage pod on his property and his officer’s quarters overseas. Birchum was not charged with spying or giving the documents to anyone, and he cooperated with investigators and conveyed remorse – but a Trump-appointed judge sentenced him this month to 3 years in prison.

Kendra Kingsbury, 2022

Kingsbury, who was an analyst for the FBI, pleaded guilty in 2022 to two counts of violating the willful retention of national defense information provision after she was indicted by a federal grand jury in 2021 for possessing classified documents in her home. The Justice Department said Kingsbury took home approximately 386 classified documents from work over more than 12 years, including secret information related to counterterrorism intelligence sources and methods, open investigations, the FBI’s technical capabilities, intelligence gaps, and al Qaeda in Africa. Kingsbury, who was not charged with spying or giving documents to anyone, is scheduled to be sentenced next week.

Jeremy Brown, 2022

Brown, a retired Army Special Forces sergeant who later became involved with far-right group the Oath Keepers and ran for the Florida state House as a Republican, was convicted by a federal jury in 2022 for both possession of unregistered grenades and guns and for violating the willful retention of national defense information provision. When the FBI searched Brown’s home in 2021 upon arresting him over his alleged involvement in the pro-Trump riot at the US Capitol on January 6, 2021, they found the unlawful weapons and a classified “Trip Report” he had written in 2011 about the search in Afghanistan for missing soldier Bowe Bergdahl. Brown was sentenced in April to 7 years and 3 months in prison, though not solely over the classified document.

Ahmedelhadi Yassin Serageldin, 2019

Serageldin, who had worked as a systems engineer for defense company Raytheon, pleaded guilty in 2019 to one count of violating the willful retention of national defense information provision. The Justice Department said he had more than 570 documents marked as classified at his home, including some regarding US missile defense, and had altered or removed the classification markings on about 50 documents. He was not charged with spying or giving documents to anyone. He was sentenced in 2020 to 18 months in prison.

Harold Martin, 2019

Martin, who was a contractor for the National Security Agency, pleaded guilty in 2019 to one count of violating the willful retention of national defense information provision after he was indicted in 2017 for possessing, in his home and car, a massive quantity of classified material he had taken from work over the course of more than 15 years; he had been charged with 20 counts for 20 particular documents identified in the indictment. Martin was not charged with spying or giving the documents to anyone, and his lawyer portrayed him as a “compulsive hoarder.” He was sentenced in 2019 to 9 years in prison.

Weldon Marshall, 2018

Marshall pleaded guilty in 2018 to one count of violating the willful retention of national defense information provision for having classified material at his home from his job as a defense contractor and his prior service in the Navy. The Justice Department said he retained classified information about the country’s “nuclear command, control and communications” and about ground operations in Afghanistan, among other matters. He was not charged with spying or giving the documents to anyone. He was sentenced in 2018 to 41 months in prison.

Nghia Pho, 2017

Pho, who was a developer for the National Security Agency’s hacking unit, pleaded guilty in 2017 to one count of violating the willful retention of national defense information provision by taking classified documents and writings home from work over the course of roughly five years – for the purpose, Pho said, of getting extra work done on nights and weekends, as The New York Times has reported. Russian hackers are believed to have stolen important classified material from Pho after he took it home, but he was not charged with spying or deliberately giving the material to anyone. He was sentenced in 2018 to 5.5 years in prison.