Brad Raffensperger Did Not Violate Espionage Act | Law & Crime

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National Security Law Expert: Any Suggestion that Raffensperger Violated the Espionage Act Is ‘Little More Than Deranged Conspiracy Porn’

WASHINGTON, DC - DECEMBER 12: U.S. President Donald Trump pumps his fist as he departs on the South Lawn of the White House, on December 12, 2020 in Washington, DC. Trump is traveling to the Army versus Navy Football Game at the United States Military Academy in West Point, NY.

While serious legal minds are contemplating the consequences of President Donald Trump’s Saturday phone call to Georgia elections officials, the Pizzagate crew is making some prosecutorial suggestions of their own.

As the narrative claims, the White House is looking into serving up Georgia’s Republican Secretary of State Brad Raffensperger (R) for investigation related to Espionage Act violations.

The charge that Raffensperger’s sharing the “find 11,780 votes” phone call with WaPo could amount to national security violations of the criminal nature was immediately deemed laughable by legal experts.

The absurdity ranges from the procedural to the substantive.

For starters, as national security law experts immediately pointed out, the Secret Service isn’t the agency that would enforce the Espionage Act — that would be the Department of Justice.

Then there’s the problem with the underlying suggestion that Raffensperger’s revealing the conversation to media constitutes a violation of the Espionage Act. That act prohibits the sharing of defense secrets as follows:

(d) Whoever, lawfully having possession of, access to, control over, or being entrusted with 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 on demand to the officer or employee of the United States entitled to receive it

Experts agree that revealing a phone call in which an outgoing president urges a secretary of state to “find” votes intended to overturn election results does not constitute the kind of communication damaging to the safety of detriment of the United States.

In a conversation with Law&Crime, attorney and national security law expert Bradley P. Moss slammed the idea that Raffensperger might have violated the Espionage Act.

“It is beyond ludicrous to suggest that there is an Espionage Act violation here, let alone any criminal issue,” Moss said.

“This was not a secure line the president was calling from, there were uncleared people on both sides of the call, and the discussion of the president’s fantasy election fraud claims come nowhere close to the idea of ‘national defense information.'” he concluded, “To suggest otherwise is little more than deranged conspiracy porn.”

As law professor Steve Vladeck similarly pointed out, the Espionage Act prohibits the unauthorized dissemination of “information related to the national defense.”

And as national security expert and Executive Director of National Security Counselors Kel McClanahan explained, not every conversation the president has would relate to national defense. At most, Trump might have the authority to retroactively classify a conversation about Georgia election results.

But even if Trump did that, Raffensperger’s sharing the information would not amount to a crime under the Espionage Act. Furthermore, there is nothing specifically to indicate Raffensperger was bound by a non-disclosure agreement.

McClanahan elaborated to explain that there might be a chance Raffensperger might have signed an NDA (albeit for reasons wholly unrelated to Trump’s election fraud claims).

Still, a violation of an NDA in this context would neither amount to espionage nor result in civil liability.

Law&Crime spoke with McClanahan on Monday. He explained that “Contrary to popular belief, the Espionage Act doesn’t prohibit the unauthorized disclosure of classified information.” Rather the prohibition against unauthorized disclosure of “information related to the national defense” has potential to be both more broad and more narrow than simply what is “classified.”

While a sitting president can designate something to be “classified,” McClanahan elaborated, “he can’t make something defense-related that isn’t.” Even if Trump were to retroactively declare the entire phone call to be classified, the call still would be unrelated to the national defense.

“Plus,” McClanahan concluded, “If it was classified national defense information, the call would’ve taken place on a special secure line protected from electronic surveillance, which it clearly wasn’t.”

Furthermore, Georgia is a “one-party state” with respect to consent for audio recordings (and so is D.C.). That means under state law, so long as one party consents, a recording about which another party is unaware is not a crime. Therefore, nothing about Raffensperger’s taping of the call would constitute criminal wrongdoing.

[image via Al Drago/Getty Images]

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Elura is a columnist and trial analyst for Law & Crime. Elura is also a former civil prosecutor for NYC's Administration for Children's Services, the CEO of Lawyer Up, and the author of How To Talk To Your Lawyer and the Legalese-to-English series. Follow Elura on Twitter @elurananos