The most notorious spies were prosecuted under the Espionage Act of 1917, including Robert Hanssen and Aldrich Ames, who are serving life sentences for spying for Soviet and Russian intelligence while working for the FBI and CIA, respectively. However, while Hansen and Ames were charged under Section 794 – collection or delivery of defense information to assist a foreign government – Trump is being investigated for a possible violation of Section 793 – collection, transmission or loss of defense information, which also includes refusal to return information requested by the government. The distinction is that Trump — as far as is publicly known — is not under investigation for providing national defense information to a foreign government with the intent to harm the U.S. or aid a foreign nation or traditional espionage, according to experts who spoke to CBS. News. Although Section 793 of the law refers to the “transmission” of defense information, it refers to “any method of moving the document from the secure location to an unauthorized party or non-secure location,” said national security attorney Brad Moss. Section 794 also carries a much harsher penalty of up to life imprisonment or the death penalty. The provision for which Trump is under investigation carries a maximum sentence of 10 years in prison.

How the authorities use the Espionage Act

Despite its name, the Espionage Act is not limited to traditional spying. It is also used as a vehicle to prosecute cases of mishandling of classified information. “The fact that it’s still called the Espionage Act is confusing to most people because the law generally has nothing to do with espionage at this point,” Moss said. “It should be renamed the Official Secrets Act, not the Espionage Act.” Congress enacted the Espionage Act on June 15, 1917, two months after the US entered World War I, to quell dissent over US involvement in the war. In modern times, it is used against those who leak classified information and those who remove classified information from secure facilities and store it at home. Trump is not the only high-profile political figure being investigated under the Espionage Act. Former FBI Director James Comey controversially decided not to bring criminal charges against former Secretary of State Hillary Clinton under the Espionage Act over her private email server because there was insufficient evidence of fraud or gross negligence. Dozens of emails containing classified information were hosted on the server. “The question for the Department of Justice was, did she set up this private server for the purpose of sending classified information to her unmarked? And did she have any reason to suspect that the information in those emails was actually classified? And they concluded that there was insufficient evidence of this,” Moss said. After strongly criticizing Clinton over her handling of classified information, Trump signed a law that upgraded the mismanagement of classified records from a misdemeanor to a felony. Former CIA director David Petraeus has admitted to keeping classified information at home, which he shared with his biographer with whom he had an affair, while lying to the government about returning all that information. “I think this is one of the closest precedents to the current situation,” said Ryan Goodman, a law professor at New York University. “And it’s also a case in which Petraeus could have been charged with perjury, which is very similar to Trump possibly being charged with [obstruction].”

The other laws involved in the investigation

According to the search warrant, Trump is also under investigation for two other potential crimes unrelated to the Espionage Act. They include 18 USC 2071, which includes removing, tampering with, or destroying public records. and 18 USC 1519, obstruction of justice. The latter carries a maximum sentence of 20 years in prison, double what someone would face under Section 793 of the Espionage Act. In January, the National Archives and Records Administration said it recovered 15 boxes of files from Mar-a-Lago, some of which contained classified national security material. He then asked the Justice Department to investigate. That led the FBI to execute a search warrant Monday at Mar-a-Lago, with agents seizing 11 sets of classified documents, including four sets designated “top secret.” Trump claimed all the documents were declassified. Goodman said the obstruction law is not necessarily limited to obstructing a Justice Department criminal investigation, but could apply to the National Archives’ ability to collect presidential records. “It could very well be that what the Justice Department has in mind is not obstruction of an investigation, but simply interference or obstruction of the National Archives’ ability to properly manage government documents, presidential records,” he said. Whether the Justice Department decides to bring charges under the Espionage Act against Trump ultimately depends on intent, Goodman said. “Trump kind of adds to the incriminating evidence by claiming that he declassified information, because then it shows that he has knowledge of what was in the documents,” Goodman said. Both Goodman and Moss noted that the documents at Mar-a-Lago do not need to be classified for the Espionage Act to apply. “I personally don’t foresee the government bringing a case like this here unless the information is something they can also prove was classified,” Moss said. “It’s not something I see them trying with the former president.”

Caitlin Yellek

Caitlin Yilek is a digital producer for CBS News. Contact her at [email protected] Follow her on Twitter: