The Espionage Act, the law that often has been used in criminal cases involving leaks or mishandling of classified information, contains a provision making it crime to disclose national defense secrets “through gross negligence.”
The law does not require that the information be classified, because it was written before the classification system existed. The law refers simply to “national defense information.”
The specific provision reads: “(e) whoever, being entrusted with or having lawful possession or control of any document, writing, code book, signal book, sketch, photograph, photographic negative, blue print, plan, map, model, note, or information, relating to the national defense, through gross negligence permits the same to be removed from its proper place of custody or delivered to anyone in violation of his trust, or to be list, stolen, abstracted, or destroyed, shall be punished by a fine of not more than $10,000, or by imprisonment for not more than two years, or both.”
Brad Moss, an attorney whose practice is devoted to issues of security clearances and classified information, said that is “the most reasonably applicable provision from the Espionage Act both for Secretary Hegseth and for national security adviser Waltz,” referring to Defense Secretary Pete Hegseth and top Trump aide Mike Waltz, who took part in a high-level group chat onYemen strike plans that inadvertently included The Atlantic’s editor-in-chief.
This provision was cited by critics of the decision by the FBI not to recommend criminal charges against Hillary Clinton in connection with the classified information she and her aides discussed on an unsecure private email system.
“In order to give Mrs. Clinton a pass, the FBI rewrote the statute, inserting an intent element that Congress did not require,” legal scholar Andrew McCarthy wrote for National Review, including bold type for emphasis. “The added intent element, moreover, makes no sense: The point of having a statute that criminalizes gross negligence is to underscore that government officials have a special obligation to safeguard national defense secrets; when they fail to carry out that obligation due to gross negligence, they are guilty of serious wrongdoing.”
Moss said another law that seems to apply here is 18 USC 1924, which makes it a crime to remove classified information to retain it “at an unauthorized location.” While the law does require the material in question to be classified, Moss said there could be no doubt that the material disclosed in the Trump administration officials’ group chat was classified.
“There’s no way any reasonable person would think that military operational details or real time intelligence about military strikes is not classified, and if they do, they’re not qualified to hold senior positions in the U.S. government,” he said.
Under normal circumstances, Moss said, the DNI would be conducting a damage assessment to figure out exactly information was shared in these chats on a non-government platform and to determine what information reached the reporter, and likely a criminal referral to the Justice Department would follow.
Moss said he does not think that will happen under this administration.
Trump officials have repeatedly said the messages in the Signal app chat included no classified information, and in testimony before the House Intelligence Committee this morning, Tulsi Gabbard, the director of national intelligence, continued to insist on that point. Gabbard also said the National Security Council was conducting a review of the incident.
There is precedent for high-level officials getting in trouble for leaks or mishandling secrets. When the name of an undercover CIA officer was leaked during the George W. Bush administration, a special prosecutor was appointed that resulted in criminal charges against the vice president’s chief of staff, Scooter Libby. In recent times, former CIA Director John Deutsch and former national security adviser Sandy Berger were among those disciplined for mishandling incidents. And former CIA Director David Petraeus was prosecuted a decade ago after he gave notebooks containing military secrets to someone writing a book about him.
