In previous espionage law cases, warning signs for Trump

Like former President Donald J. Trump, Lt. Col. Robert Birchum was accused of mishandling classified documents in Florida. Like the former president, he was charged with violating the espionage law.

But unlike Mr. Trump, Mr. Birchum, 55, a highly decorated Air Force intelligence officer, took full responsibility. His lawyer said he expressed “true remorse”. He even collaborated with investigators, providing information about how he kept hundreds of classified papers in his home, foreign office, and storage pod for nearly a decade.

Despite all that, Mr Birchum was jailed for another three years this month when he was sentenced.

The case and others like it are warning signs for Mr. Trump, who faces 31 counts of deliberately withholding national defense secrets, each of which carries a maximum sentence of 10 years in prison.

The former president has also been charged with conspiracy to obstruct justice, corrupt plans to conceal information from the government and lying to investigators.

Eric Roper, Mr Birchum’s attorney, said Mr Trump was clearly in legal jeopardy.

“Yes, he certainly faces some serious consequences, such as jail time if convicted,” Mr Roper said. “The allegations are serious, as evidenced by my client’s conviction and others. And my client had no aggravating factors.”

Unlike Mr. Birchum, whose sentence was most likely reduced because he cooperated with prosecutors and was not charged with orchestrating a cover-up, Mr. Trump has shown no willingness to concede any grounds. He has so far said he has done nothing wrong and is launching a strong attack on federal prosecutors.

The administration has accused Mr. Trump of taking hundreds of documents, many of them highly confidential, from the White House when he left office in 2021. Prosecutors tried to recover the documents, but Mr. Trump resisted, prompting the government to order a search. warrant for Mar-a-Lago, his Florida estate.

In a 49-page indictment, unsealed on Friday, the administration describes 31 classified documents Mr. Trump had in his possession regarding military and nuclear capabilities of the United States and abroad. Other documents contain information about military contingency plans, including plans for a possible US attack on Iran.

Prosecutors alleged that Mr. Trump conspired with Walt Nauta, his assistant, to obstruct the investigation by hiding documents in a bathroom and other locations in Mar-a-Lago after receiving a subpoena. They also accused Mr. Trump of causing his lawyers to provide false information to the government that all documents had been accounted for.

During his first run for president, Mr. Trump repeatedly berated Hillary Clinton, his Democratic rival, for using a personal email server during her time as Secretary of State under President Barack Obama.

“In my administration,” Trump said in the summer of 2016, “I am going to enforce all laws related to the protection of classified information. No one will be above the law.”

In recent days, allies of Mr. Trump have accused the Justice Department of using double standards, saying they should have prosecuted Mrs. Clinton.

In fact, the cases are very different, with prosecutors accusing Mr. Trump of withholding documents from investigators after the subpoena. Prosecutors in Mrs. Clinton’s case said they did not have enough evidence to charge her, including under the Espionage Act. The report of a Justice Department inspector general looking at Mrs. Clinton’s case did not contradict that conclusion.

Since 2018, there have been about a dozen criminal prosecutions of people withholding classified or national defense information, according to the Justice Department.

In many of the cases, the suspects received lengthy prison terms, demonstrating how seriously the government takes protecting the country’s secrets.

Two former National Security Agency analysts – Harold Martin and Nghia Hoang Pho – were jailed for nine years and five and a half years respectively for taking classified information home. Mr. Martin, a Navy veteran, admitted that for nearly two decades he had cluttered his home office, car and garden shed with 50 terabytes of information, much of it stamped as “secret.” It was one of the largest thefts of classified documents in history, officials said.

In April, 48-year-old Jeremy Brown, a former Special Forces sergeant, was sentenced to seven years and three months in prison for holding classified information and other crimes. Mr Brown was briefly part of the Oath Keepers, a far-right militia group, and was photographed in combat gear during the attack on the Capitol on January 6, 2021.

In that case, Mr. Brown refused to accept responsibility for misconduct. During his sentencing, the judge said he had been “defiant to the end”.

Last year, Kendra Kingsbury, an FBI analyst, pleaded guilty to two counts of misappropriating national security documents at her home in Dodge City, Kan. Prosecutors said she kept 386 secret documents on hard drives and compact discs.

She will be sentenced next week, in a case that will be closely watched by the administration and Mr Trump’s legal team. David Raskin, one of the prosecutors who handled Ms. Kingsbury’s case, now works for Jack Smith, the special prosecutor leading the case against the former president.

Mr. Trump’s case marks the first time a former president has been charged with a federal criminal offense. But there have been previous cases of prosecutions where politicians or high-ranking government officials mishandled classified information.

All of these cases involved felony charges, not felony charges for violating the Espionage Act.

In the late 1990s, John M. Deutch, a former CIA director, was investigated by the Justice Department for mishandling classified information. He considered pleading guilty to felony charges, but was pardoned by President Bill Clinton on his last day in office.

In 2005, Sandy Berger, Mr. Clinton’s former national security adviser, was ordered by a judge to pay a $50,000 fine for illegally taking classified documents from the National Archives. Mr Berger pleaded guilty to a felony and said he made a genuine mistake as he prepared to testify before the 9/11 Commission.

A decade later, David H. Petraeus, another former CIA director, pleaded guilty to a charge of mishandling classified materials. He was placed on probation and fined $100,000.

Mr. Petraeus had kept eight personal notebooks of highly classified information, including identities of classified assets and war strategies, and shared the notebooks with Paula Broadwell, his mistress and biographer.

In his case, prosecutors discovered a recording of Mr. Petraeus and Ms. Broadwell talking about the notebooks.

‘I mean, some of them are top secret,’ Mr. Petraeus told her. He added, “It has things in codewords in it.”

Similarly, in the case of Mr. Trump, prosecutors have a potentially damning recording of the former president talking at his home in Bedminster, NJ, with a writer and publisher working on a book about Mark Meadows, Mr. Trump’s former chief of staff. .

“Secret. This is classified information,” Trump boasted as he showed his guests a document. “Look, look at this.”

The government claims that later on the recording, Mr. Trump says he did not release the document he showed them.

“But this is still a secret,” he says, making someone in the room laugh.

In the case involving Mr. Birchum, he spent more than 29 years as an enlisted aviator and officer in the Air Force. He completed several deployments to Iraq and Afghanistan and earned the Bronze Star. In one case, Mr Birchum’s intelligence work supported “more than 40 attacks on foreign terror networks resulting in the capture or death of more than 800 enemy combatants,” according to a motion by his lawyer asking for a lighter sentence in his case early.

The sentencing memo said Mr Birchum showed “exceptionally poor compliance” with his obligation to protect the nation’s secrets, but he did not keep secret materials “for personal gain or with malicious intent to harm the country to take”.

In that motion — written a month before Mr. Trump’s indictment was unsealed — Mr. Roper, the attorney, acknowledged the unlikely similarities between an Air Force officer and his commander in chief.

“Among other things,” Mr. Roper told the court, “his client now shares a stage” with Mr. Trump.