This is the third post in what will loosely be a series over the next few days (“loosely” because I don’t really have a plan about what arguments should be addressed and what time frame that should happen in). The first two are here and here.

Question: Do you think Lindsey Graham believes the “Affordable Care Act” made health care in America more affordable? How about the “Inflation Reduction Act” — how’s that working out?

If you’re getting my drift, you’ll realize that, in Washington, there is no more Orwellian and, on occasion, downright stupid exercise than the titling of legislation. If I had my druthers (and if we didn’t have an Article I, and a First Amendment . . .), I would require that all acts of Congress be denoted by numbers, not titles that politicians assign in order to spin what the laws do. More often than not, the titles given to legislation are misleading, or at least incomplete, because statutes do much more than can be captured by a pithy title, or a clumsy one (see, e.g., the PATRIOT Act) — and the “more” frequently includes provisions that cut against what you’d believe Congress was trying to do if you had only read the title (see, e.g., the “Domestic Terrorism Prevention Act” proposal that would substantially dilute the serviceable definition of domestic terrorism in current federal law).

I posit this as background for consideration of Senator Lindsey Graham’s diatribe over the weekend that it was “absolutely ridiculous” for Biden Justice Department special counsel Jack Smith to have charged former President Donald Trump with 31 counts of “espionage.”

In point of fact, Trump is not charged with espionage at all.

Rather, 31 of the indictment’s charges against Trump invoke one of an array of offenses first codified into federal law by the passage of the Espionage Act of 1917. The fact that espionage is in the title of the act does not mean that all of the crimes proscribed, or even most of them, constitute espionage. Indeed, in the federal criminal code (Title 18), the codified version (now, Section 793) does not even mention the word espionage in its title, much less its text. Instead, Section 793 is called “Gathering, transmitting or losing defense information.”

In federal prosecution, the only thing that matters is the charging language of a statute — the text, not the title. In the nineties, I prosecuted terrorists under a statute, first enacted during the Civil War, titled “Seditious Conspiracy” (which has recently been invoked in some Capitol riot cases). This got people’s hackles up because of the ugly legacy of the late 18th century Alien and Sedition Acts. But my defendants were not actually charged with sedition — the word does not appear in the text of the statute, only in the title. They were charged with “conspiring to levy war against the United States,” which is one prong of a multipart law. I imagine if the statute had been titled “Levying War against the United States,” no one would have had heartburn over that. But the word sedition was controversial at the time — coverage created the false impression that we were criminalizing nonviolent opposition to the government, even though violent intent is the statute’s sine qua non.

Espionage, of course, derives from spying. Recall back in 2019 when the tender sensibilities of the anti-Trump “collusion” crowd were grazed when then–Attorney General Bill Barr had the temerity to point out that the FBI had conducted “spying” on Trump’s campaign just because the FBI had, well, spied on Trump’s campaign. The bureau’s defenders tendentiously insisted that the FBI does not “spy”; rather, it “conducts surveillance” under statutory law and court orders. We all proceeded to roll our eyes, and Barr — who began his government career in the CIA — made the obvious explicit: “spying is a good English word” that doesn’t necessarily connote illegality but rather covert intelligence collection. Such operations may be legal under U.S. law if done by federal agencies, even if they are illegal in the country where conducted; or, symmetrically, they could be illegal in our country if conducted by a foreign power, even if that foreign power considered its own spying surveillance legal.

Well, to judge from Senator Graham’s rant, the word espionage provokes all the faux outrage from the pro-Trump crowd that its root, spying, did for the anti-Trumpers.

The fact that Trump has been charged with an offense that entered federal criminal law through the Espionage Act does not make that offense a form of espionage. The U.S. criminal code’s titling of Section 793 as “gathering, transmitting, or losing defense information” is more accurate than “Espionage Act,” but it’s still incomplete.

The provision defines some offenses that are in the nature of espionage — e.g., purloining national-defense information with the intent of harming the United States. But it also includes some offenses in which there need not be any intent to harm the United States or advantage a foreign power — e.g., people, whether authorized or unauthorized to possess national-defense information, who willfully retain that information and refuse to deliver it on demand to an officer of the United States entitled to have it; or officials authorized to possess defense information who handle it in a grossly negligent manner (e.g., keeping it in an unauthorized location, allowing it to be given to someone not authorized to see it, or causing it to be lost, stolen, or destroyed).

The offense Trump is charged with is in the latter, non-espionage categories — specifically: being in unauthorized possession of defense information (after he left office), willfully retaining it despite this lack of authorization, and refusing to deliver it on demand by officers of the United States entitled to have it.

The common thread of the Section 793 offenses is: They involve national-defense information that, if it fell into the wrong hands, could cause terrible damage to national security. But espionage is when a spy covertly obtains that information and uses or disseminates it with the intent to harm the United States, benefit a foreign power (especially an adversary), or both. The Biden DOJ’s special counsel did not accuse Trump of that in the indictment, and no one alleges that the former president did any such thing.