I made one mistake in my column on the Trump boxes indictment, which I will explain and clarify here. The upshot is that Trump will have one fewer legal defenses than I thought.

Let’s walk through this. Here’s the full text of what Section 793(e) of the Espionage Act defines as a crime:

(e) Whoever having unauthorized possession of, access to, or control over any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted, or attempts to communicate, deliver, transmit or cause to be communicated, delivered, or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it to the officer or employee of the United States entitled to receive it (Emphasis added).

There is a reason why the courts have regularly complained about the turgid language of 793(e). In my column (we’ll shortly be correcting this), I broke this into five elements:

[1] Whoever having unauthorized possession of, access to, or control over any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note (the “Unauthorized Possession” requirement)

[2] relating to the national defense. . . . (the “National Defense Information” requirement)

[3] which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation. . . . (the “Potential to Injure” requirement)

[4] willfully retains the same (the “Willful Retention” requirement); and

[5] fails to deliver it to the officer or employee of the United States entitled to receive it [commits a crime] (the “Failure to Deliver” requirement).

Here’s the problem: The third element, the Potential to Injure requirement, only applies to charges of transmitting national defense information, not to charges of retaining national defense documents. Trump is charged only with the latter. I originally read most of the cases in this area back in 2005 and 2006 when blogging about what charges might be brought against Karl Rove (none were) for supposedly being the source of the disclosure of Valerie Plame’s identity as a CIA analyst – a classic disclosure-of-information case. Re-reading those cases, I realized that the same requirements don’t apply to Trump’s case.

The U.S. District Court for the District of Maryland explained the distinction in United States v. Drake (D. Md. 2011):

Section 793(e) provides for different scienter requirements depending on the character of the national defense item or data that a defendant is charged with possessing. In cases like this one, involving documents, the defendant need only have acted willfully, as a defendant will more readily recognize a document relating to the national defense based on its content, markings or design than it would intangible or oral “information” that may not share such attributes.
The legislative history of this statute also supports this reading. See S.Rep. No. 2369, pt. 1, 81st Congress, 2nd session, 8–9 (1950) (“[t]he phrase ‘which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation’ would modify only ‘information relating to the national defense’ and not the other items enumerated in the subsection.”)…

In a case such as this one that involves solely the willful retention of classified documents, not intangible information, there is no heightened mens rea requirement. Instead, the Government need only prove simple willfulness. (Italics in original; bold added).

See also United States v. Hitselberger (D.D.C. 2013). Potter Stewart made the same point as far back as the Pentagon Papers case. The U.S. District Court for the Eastern District of Virginia, in United States v. Rosen (E.D. Va. 2006), a case involving leaks of oral information, drew the distinction in similar terms:

A comparison of the application of the statute…to intangible information and the application of the statute in the typical § 793 prosecution to the delivery of classified documents (or any other tangible item) illustrates this point. All classified documents are clearly marked with a classification level and are often marked classified or unclassified at the paragraph level. For this reason, a person possessing such a document can easily determine: (i) whether the possession is authorized, (ii) which portions of the information the government is attempting to keep secret, and (iii) who else is entitled to receive the document.

In contrast, a conversation about classified information, even one accompanied by a generic warning that “this information is classified,” is not likely to apprise the listener of precisely which portions of the information transmitted in the conversation are classified, or whether a more general description of the information retains its classification status such that it is sufficiently closely held and potentially damaging to the United States to violate the statute.

Now, this does not mean that the government bears no burden to show what Donald Trump knew. It still has to prove willfulness, which is just about the highest level of criminal knowledge demanded in American law. In the leading case of United States v. Morison (4th Cir. 1988), the Fourth Circuit upheld a jury instruction – widely copied in 793(e) cases since – requiring proof that “an act is done wilfully if it is done voluntarily and intentionally and with the specific intent to do something that the law forbids. That is to say, with a bad purpose either to disobey or to disregard the law.” (Emphasis in original).

That is a high bar, albeit one that will likely be much easier to surmount here than in the usual case if the government has — as it alleges — tape recordings of Trump saying he knows these are classified documents he’s not supposed to be showing people, and that he no longer has the power to declassify them. Trump’s general knowledge that the law punishes careless handling of classified and sensitive information is further buttressed by his own “lock her up” campaign statements about Hillary Clinton and his own executive orders issued as president. Trump will undoubtedly raise various claims that he believed he still had the right to retain these documents and wasn’t doing so illegally, but his bases for claiming this have, thus far, been spectacularly unpersuasive, and a jury will be within its rights to treat them as insincere pretexts. “Reliance upon the advice of Tom Fitton” is not a legal defense.

Moreover, as I noted in my column, even if the government can rely on classification markings to prove that Trump knew the documents were something he legally wasn’t supposed to retain, it can’t use classification alone to satisfy the National Defense Information requirement — it will still have to prove beyond a reasonable doubt to the satisfaction of a South Florida jury that these documents actually contained information relating to the national defense. And that will still involve a delicate process of how to prove that without showing the jury the documents themselves.