Last edited Sun Jan 15, 2023, 04:16 AM - Edit history (7)
required intent. Also, he hasn't done anything obstructive. The other laws that apply to removal of records also require willfulness or intent.
Unlike you, I think it's easy to imagine how busy staffers might have accidentally packed items on Biden's desk with the other things going to his new office; or that, while he was VP, he took documents with him to read at his Maryland home and accidentally left them there. Neither of these situations would be willful or show intent to do something nefarious.
"The Espionage Act was established in 1917 to prohibit anyone from obtaining defense information with the possible intent of using it against the U.S. or to further the interests of a foreign country."
https://www.huffpost.com/entry/trump-search-warrant-espionage-act_n_62f6a831e4b095e788805b5a
The paragraphs below were written about Trump, but the law seems even less likely to apply to Biden. Biden not only didn't fail to deliver the classified documents on demand, he immediately turned them over when his lawyer discovered them.
The part of the Espionage Act that is likely most relevant in this case is § 793(d). It applies to individuals who lawfully accessed material:
“relating to the national defense,” and who proceeded either willfully to convey it to “any person not entitled to receive it,” or willfully to “retain the same and fail to deliver it on demand to the officer or employee of the United States entitled to receive it.”
The statutory language is sparse. Over the years, courts have narrowed it through construction, although even the judicially construed terms remain quite capacious. The most important judicial refinement concerns the term “relating to the national defense.” Although acknowledging that “national defense” is an extremely far-ranging concept, courts have tacked on two additional components. First, the materials must be “‘closely held’ in that [they] ... have not been made public and are not available to the general public.’” Second, the disclosure must be “potentially damaging to the United States or [potentially] useful to an enemy of the United States.” Although the Espionage Act does not mention the classification system—which predates the act’s passage—courts have used classification status to inform their assessment as to whether materials were “closely held.” They have also relied on it to determine who was “entitled to receive” information. Additionally, courts have interpreted the willfulness requirement to mean that the offending conveyance or retention must have been done knowingly.
https://www.lawfareblog.com/donald-trump-and-espionage-act
In addition to the Espionage Act, "There are two other laws Trump is suspected of violating in connection to his handling of government documents." I'll post the statutes language below.
18 USC § 2071, which bars the concealment, removal, or mutilation generally of government records. Conviction on this count carries a maximum penalty of three years and disqualification from holding public office.
18 USC § 1519, which prohibits the destruction, alteration, or falsification of records "with the intent to impede, obstruct, or influence the investigation or proper administration of any matter" within the jurisdiction of federal agencies or departments. Conviction on this count carries a maximum penalty of 20 years in prison.
https://www.businessinsider.com/trump-fbi-espionage-act-january6-search-warrant-federal-laws-broken-2022-8
18 U.S. Code § 2071 - Concealment, removal, or mutilation generally
U.S. Code
(a)Whoever willfully and unlawfully conceals, removes, mutilates, obliterates, or destroys, or attempts to do so, or, with intent to do so takes and carries away any record, proceeding, map, book, paper, document, or other thing, filed or deposited with any clerk or officer of any court of the United States, or in any public office, or with any judicial or public officer of the United States, shall be fined under this title or imprisoned not more than three years, or both.
(b)Whoever, having the custody of any such record, proceeding, map, book, document, paper, or other thing, willfully and unlawfully conceals, removes, mutilates, obliterates, falsifies, or destroys the same, shall be fined under this title or imprisoned not more than three years, or both; and shall forfeit his office and be disqualified from holding any office under the United States. As used in this subsection, the term “office” does not include the office held by any person as a retired officer of the Armed Forces of the United States.
https://www.law.cornell.edu/uscode/text/18/2071
18 U.S. Code § 1519 - Destruction, alteration, or falsification of records in Federal investigations and bankruptcy
U.S. Code
Whoever knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States or any case filed under title 11, or in relation to or contemplation of any such matter or case, shall be fined under this title, imprisoned not more than 20 years, or both.
https://www.law.cornell.edu/uscode/text/18/1519
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