The POTUS is given the highest placement and access in the country. Hence, a POTUS is expected to properly safeguard our secrets at the highest standard.
Should former President Trump be prosecuted under the Espionage Act of 1917?
This is a question that former U.S. President Trump, himself, and many of his acolytes are asking far and wide as though it was a surprise Trump is being prosecuted under the Espionage Act of 1917. More importantly, a statement of fact. Yes, Trump is being prosecuted under the Espionage Act of 1917 because of his mishandling of classified information.
Not a witch hunt. Not a conspiracy. He was actually required to sign documents agreeing to this treatment should mishandling of classified information in any shape or form would occur. Personally, this entire situation does not make me happy at all. Not because I like or dislike Trump, but rather because of the actual damage to National Security based on the merits this case articulates. And, most unfortunately, there are many factors in this indictment that point towards Exceptionally Grave Damage to our National Security.
There are also a lot of spin and half truths about Trump’s classified documents case in particular. Therefore, I want to put clarity to the premise for his case to stop the rampant red herring arguments I keep hearing ever since Trump’s indictment became public. And you will understand by the end of this article why (sadly) it is indeed justified to prosecute Trump under the Espionage Act. And, if the shoe was on somebody else’s foot, it would have been justified to prosecute them as well. Again, I wish that was not the case mainly because that would imply that there was no compromise of classified information to prosecute in the first place.
Most unfortunately, it would be extremely naïve to ascertain that this information is not unnervingly compromised already. I also hate the very thought that some of that information is perhaps already in adversarial hands (even if it was photographed, copied, paraphrased or otherwise memorized). That alone should give pause as it is extremely concerning if any of these documents were reviewed by any person with ill intent towards the U.S., even if they are not intending to use that knowledge right away.
That is why it is such a big deal; it is not just the fact that the documents were mixed up with all kinds of Trump’s personal crap in unsecure boxes. It is also a huge concern that it happened while these documents were stored in unsecured locations and transported without the many stringent authorized requirements to handle classified information and material. Not to mention that Trump was no longer privy to even read that information once he left office.
Yes, even if these government documents were mixed with his own personal mementos in his boxes. He was not supposed to have them there in the first place. That’s the crux of the problem.
Before you read any further, please check out the linked attachment I have added for your convenience just below the next paragraph. A quick web search will demonstrate this publicly available (and most basic) official document is what a person with a security clearance has to acknowledge and sign before getting access to any classified information. This is the same form they have to sign again after they no longer hold official duties to view classified information. That is for EVERYBODY who is privy to classified information and, yes- that included Trump.
This document is called a Standard FORM 312 – Classified Information Nondisclosure Agreement and it is UNCLASSIFIED. This form is intended for issue to people granted a security clearance so they can understand their duties and responsibilities when safeguarding classified information. It is only two pages long so please take a moment to read through. We’ll discuss it further in the next paragraph. [Note: If, for whatever reason, you think it is not the right form then you can browse the web for it yourself and make sure it is the official form. They are publicly available by the U.S. Government and, yes, this is the official form]. In other words, you don’t have to take my word for it. Facts are what they are (and independently verifiable).
You can view the SF 312, also known as an NDA, by selecting the link, below. I highlighted and made notes for your convenience, but everything is important so please look over it thoroughly.
SF-312 (Classified Information Nondisclosure Agreement)
The SF-312 is so important yet seems to be out-right ignored.
This is one of many Standard Forms (SF). The U.S. Government has literally thousands of forms (to include SF forms) which cover all kinds of topics and purposes. Everybody who has ever had a security clearance, or has been privy to any classified material, will need to fill out an SF-312 form below it gets filed away with the agency’s security manager. These signed forms will be retained for several decades on government files.
Ths SF-312 is, in essence, a contract or agreement with the U.S. Government to prevent a person from divulging any classified information willfully or even by mistake for a minimum of 75 years! They cite a lot of references that are intended to educate a person about the risks and their responsibilities if they are ever trusted to view or handle classified information. And, of course, any punitive actions for violation of these rules. Further, it is also meant to protect the classified information that will reside in that person’s memory! Yes, you read that right.
Something remains classified even if it is in a person’s memory – aka. their brain. That means that if that information comes out of their mouth, or they write it, or express it in any unauthorized way that could cause that information to fall in unauthorized hands (or to their knowledge), then it is a breach of this agreement. Hence, it is subject to the Espionage Act. Big responsibility, right? Yes, that is why not everybody is given a security clearance and why the rules are so stringent.
You want to hear something funny? Ironically, Trump himself made the rules more stringent under the Espionage Act during his term of office – though presumably that was when he wanted to lock up Hillary Clinton for her own case regarding classified information. In other words, Trump and his acolytes are essentially fighting against Trump’s own metrics!
Also, I will take this time to be crystal clear: I don’t care if a person leans to the left or right on the political spectrum. Or, if they are Trump fans or even never-Trumpers, that is irrelevant to this case. If any person mishandles classified information, that is problematic. Period. If somebody condones the mishandling of information under the same SF-312 references, they are being instrumental in damaging National Security by being accomplices to somebody who breached the National Security rules.
Yes, you read that right. Because, likely, some of the more prominent acolytes had either, no access to classified information in the first place, or they had to sign an SF-312 if they did have access at some point. Therefore, either way they had to protect the information according to regulation or they were not privy to classified information at all in the first place.
Every case of compromised classified information should be investigated and the verdict should be what it warrants based on the circumstances and findings from each investigation. If you think about it even for a second, would you not want assurance that every person who has access to classified information has signed something in black and white that articulates what they should, or should not, be allowed to do when it comes to the privilege of viewing or handling classified information? Well, obviously that is why these forms exist.
According to government rules, the SF-312 is the most basic form everybody with a clearance should sign. It is simple logic to ascertain that higher level of classification information will have even more stringent and detailed documents to articulate acknowledgment pertaining to that material or information. Right? Yes, right! If you know anything about the U.S. Government, it is that they will have many procedures in place, which include having signed copies of official acknowledgments and these acknowledgments will be entered in databases to make sure National Security is protected at all times. In fact, many of these forms will likely be printed and filed as well as saved, electronically, because National Security is that important – hence the redundancy for controls. In simpler terms, checks & balances.
Why all this administrative burden? It is no burden at all. It is a way to manage the program to ensure it’s integrity.
As you read the SF-312, think about Trump’s claims stating he has a right to hold classified information, or that he did not know any better (both different claims depending on the venue he has publicly spoken to), do not hold water either way. Also, these claims are indefensible, regardless of what his acolytes want to point to the contrary. Sure, some of them might not know any better. But, for those who work in or with government – particularly some Senators, U.S. Representatives or any other government officials with a security clearance – then they cannot in good conscience condone Trump’s actions when it comes to his mishandling of these classified documents.
For example, why do you think it has been so hard for Trump to find an attorney to defend his case? It is a high risk because they could lose their bar (legal) license or get incarcerated themselves for being instrumental to damaging National Security. It is very risky to defend the indefensible.
One thing is arguing in the court of public opinion. It is a much different reality to argue in a court of law against stringent statutes. Especially if these statutes are linked to National Security breaches and there is a paper trail that condemns your client. Also, Trump’s public comments along with his acolytes are actually making it worse for his case (even if they don’t understand why) because it shows willful intent to commit the acts under the indictment. This is also problematic to anyone with a clearance who tries to justify Trump’s actions. That, in theory, could affect THEIR clearance because it could impact their trustworthiness, loyalty, and character. See why it is risky?
What do I mean by that? Well, if any of these government personalities (to include U.S. Senators and U.S. House of Representatives, past and present) ever held a security clearance, then it means that they also had to sign their own SF-312 at some point in their careers and this document very succinctly already flies against any claims downplaying Trump’s actions. So that begs the question: Did they not understand what they signed? They have to sign an acknowledgment that they read and understand the SF-312. Worse, are they potentially going to be repeating a similar offense in the future? In other words, are they going to ignore the rules and regulations pertaining to the handling of classified information?
Most importantly, if they do get away with it, what does it mean to anybody else who is holding a security clearance? If this document is null or unenforceable by the lawmakers and executive power, then what is stopping everyone with a security clearance from not protecting classified information and material it in accordance with the regulations?
Fortunately, most people privy to a security clearance seem to take this privilege very seriously. And, despite the fact that some people tied to Trump in positions of prominence downplay it, the majority of people uphold the security classification rules with utmost decorum. As they should, because any person with access to classified information is entrusted with something so precious that even money cannot buy. Most people have HONOR. Most people are honorable because they do the right thing, even if nobody is watching. They safeguard this invaluable information and follow the proper procedures because that is what it takes to protect this information and they also hold others accountable if they fail to enforce these rules and regulations. Why should they protect it so carefully? Because this sensitive information keeps the world safe. Not just the United States of America, but also our Allies and- who knows- maybe even the people stuck living in antagonistic nations with authoritarian regimes.
Most people will never be granted a security clearance. Eligibility alone for this privilege is very rigorous. And, it can be revoked at any time if the rules are not followed. Is that a good thing? Yes, it is. Why? I said it in a previous article (and in this one) and it is worth repeating: A security clearance eligibility is based on Trustworthiness, Loyalty, and Character. If any of those are negatively impacted, then the eligibility for holding a security clearance is negatively impacted as well. Afterall, you would not want people privy to the secrets of our nation being sloppy or erratic when it comes to handling this sensitive information, right?
This was intended to be a short article but I really would like you to read this SF-312 closely, once again, and understand it’s importance in this case. Understand what it means and, now, apply it to Trump’s case. Spoiler alert, he pretty much breached all paragraphs in the SF-312 form. Let me summarize and highlight a few as examples. You can follow your own adventure as you read the form, the indictment, and Trump’s own words.
Let’s cite a few examples that align with Trump’s public statements.
Trump violated Paragraph “3” from the SF-312 form. Trump is accused of the unlawful retention of more than 30 classified documents, most of which are highly classified, which would imply that- aside from this SF-312 form- there is likely a much larger paper trail showing his signature, acknowledging how he’s supposed to handle these documents. I am very sure that the prosecution (if needed) could exhibit these documents and demonstrate that- in every case- Trump should have acknowledged and signed that he was required and directed to return those classified documents at the end of his term. Pay particular attention to “retention, or negligent handing of classified information.” We know this because of a recording in the indictment that he committed a classified spill by sharing classified information with people who are unauthorized (in other words, they don’t have a security clearance nor a need-to-know), so that is also noted in said paragraph.
Trump violated Paragraph “7” from the SF-312 form. This paragraph articulates that all classified information is the Government’s property, and it must be returned whenever their role with their government ends. In Trump’s case, the day he officially left the White House (January 20, 2021). It is worth mentioning what statutes are enforcing these laws, and further states that if the Government is asking you to return the classified information you must do so, period. If Trump would retain access to classified information, then a form showing this would’ve been signed, dated, witnessed, and placed in a database effective immediately after his presidency. That document would need to be presented to help Trump’s case. The indictment shows that Trump did not fill out such a document to retain access to classified information. And, spoiler alert, you cannot legally do that retroactive for many reasons.
In Article “9” from the SF-312 form, even if one more article does not apply to a person, then any article that DOES apply can still hold the person responsible if they breach the agreement. That is why most people with a security clearance are very careful in the performance of their official duties (even off-duty or whenever they no longer have access to classified information). However, from all the people in Government, the highest office in the land (Presidency) must be the varsity level enforcer of classified information. Why? Because they get exclusive access to extremely high levels of classified information. And, as I said, I am also worried about what classified information still lives in this man’s brain- memory).
In Article “12” from the SF-312 form, there is specific language that a person understands what is being said in all the previous paragraphs of the same form. As I said, Trump violated at least one thing in each one of these paragraphs. These are being articulated in the indictment. You can read the indictment by selecting the following link, or just read the last two articles posted on this site.
But, back to the SF-312…paragraphs 1-12 are to be read and signed BEFORE a person is given access to classified information. This is what the U.S. government is officially calls “indoctrination.” Directly below there are places to sign their names and the controlling agency, witness, and of course a signature from the person given said access which is to acknowledge all of the above. So, you see, they have to sign and acknowledge it twice already in the same form, as to not leave any indication that they “did not know any better.” Who would have thought of that, huh?
But, keep reading…whenever a person no longer has a need to access classified information they have to sign and date their acknowledgement to that fact. What do they acknowledge to? That it is a crime not to return the classified material, and that they will not disclose classified information, otherwise they will get in big legal trouble (as in a criminal offense). Furthermore, they acknowledge that they will have to contact the FBI if any unauthorized person wants, or could potentially gain, access to classified material or information that they were privy to (that includes the classified information that still resides in their brain). Therefore, it is no surprise that the FBI would investigate, execute a search warrant, and prosecute a person who has been mishandling any classified information. This is something Trump signed agreement to by signing the SF-312 Form!
Bottom-line for this article.
I really don’t know why the media (left, center, or right-leaning) is taking so long to figure this out. It seems crystal clear to me. That is why I am writing this article. I am not sure how far my words will travel but I cannot idly stand by as I see the most obvious factor being ignored at this point in history. It has been officially expressed that there are always paper trails that are supposed to exist in government to articulate and acknowledge how to handle classified information, and consequences for not following the rules. Well, no duh!
If you are a Trump fan, I’m sorry that this entire situation might hurt your feelings. But it is not your fault. Trump either by mistake, negligence, or petulance ignored the rules that pertained to his short-lived security clearance. If you, Dear Reader, ever had a security clearance, you probably have signed a similar document and depending on how long ago it was, it is probably filed somewhere, and this paper trail can be used against you under the Espionage Act if you fail to live to all the provisions stipulated in the SF-312 you signed at some point in your life.
How could Trump have been able to mitigate all this legal trouble? Well, simple…return all classified documents and material in a timely manner when first asked to do so after he left office, and don’t disclose whatever he was privy to during his time. Simple, but he failed to do so on both of those conditions. If you had a high security clearance, then it is very likely that you had to sign a bunch of stuff to ensure that you don’t say something you should not ever disclose. Trump had to do the same thing. This is not hard to understand.
I’m going to leave it at this. But, remember, nobody is above the law- especially when it comes to classified information. Yes, especially The President, because the Office of the Presidency has to set the highest standard for all others to follow. The Presidency must show every other office below theirs what correct procedures look like – yes, even as they leave the office. That is, both, administratively as well as the human factor of Trustworthiness, Loyalty, and Character when holding a security clearance. That is why they are appointed to that exulted position.
I hope this article clarifies for most people how it was Trump’s own doing that got him into this very serious legal situation. Although I have a feeling that I will have to write another article soon enough to expand on this seemingly never-ending saga, I will do so as needed and whenever I have a chance. Time will move forward, and the spin and misinformation will likely continue, but at this point in time I want to do my part to shed some light in the middle of all this deception and confusion. HLC