Their stations in life could hardly be more different: one a former president, the other a low-ranking National Guardsman. And their alleged crimes do not, on their face, resemble one another: The ex-commander in chief stashed papers in bankers boxes, while the Guardsman posted photos on the Internet.
Yet Donald Trump, indicted in Florida on June 8, and Jack D. Teixeira, indicted in Worcester last week, both now face federal prosecutions under the same provision of the Espionage Act of 1917, a law the government has used for decades to lock up spies and leakers of government secrets. And both men are accused of additional conduct — obstructing investigations and disclosing classified material — that could make their sentences more severe if they are convicted.
The risk of lengthy prison sentences looms, even if such a punishment would be extraordinary for a former president. “It’s a real possibility,” said Eric Roper, a defense attorney for a former Air Force officer who was sentenced this month to three years in prison on Espionage Act charges.
Trump and Teixeira have pleaded not guilty, though legal experts say their cases feature powerful evidence that both men improperly removed classified national security documents from government facilities and then showed them to friends or colleagues.
The two prosecutions demonstrate the government’s intense interest in making examples of officials — no matter how high- or low-ranking — who flout rules designed to safeguard national security secrets, said B. Stephanie Siegmann, the former top federal prosecutor for national security crimes in Massachusetts.
Trump’s Republican allies take a different view, calling the case a politically motivated witch hunt meant to derail the former president’s campaign for the 2024 election.
Other officials convicted of Espionage Act violations have faced severe punishments. Roper’s client, Lieutenant Colonel Robert Birchum, a former Air Force intelligence officer, received a three-year prison sentence, despite cooperating with investigators and pleading guilty to removing more than 300 classified documents from government facilities and storing many of them in his home. His case also did not feature what the government calls “aggravating” factors — obstruction and disclosure — that are alleged in the Trump and Teixeira cases.
In addition to the Espionage Act counts, Trump faces felony obstruction of justice charges for allegedly attempting to hide documents from federal investigators. He is also accused of showing classified military documents to at least five associates who were not authorized to see them, according to the indictment in his case.
In Teixeira’s case, prosecutors have presented evidence that he destroyed a computer and asked others to delete incriminating messages once he learned he was the subject of an investigation. He is also charged with posting transcripts and photos of classified military and intelligence documents on the Internet.
The alleged obstruction and disclosure could make any prison sentences longer, Roper said. However, prison sentences are not guaranteed, even in the case of convictions, because federal judges have broad discretion to deviate from sentencing guidelines.
In the initial indictments, Teixeira was not formally charged with obstruction of justice, and Trump was not charged with crimes specifically related to the accusations he showed the secret documents to others. But the alleged obstruction and disclosure, which prosecutors described in the indictments and other court filings, could still feature at trial and affect sentencing, Roper and Siegmann said.
“Even if it’s not alleged as an actual criminal count, it is still factored into the [sentencing] guidelines as relevant conduct,” Roper said.
Lawyers for Trump declined to comment. Lawyers for Teixeira did not respond to requests for comment.
In a 2017 case, a former National Security Agency contractor, Harold Martin, was sentenced to nine years in prison for stealing classified national security documents over a period of 20 years and storing them in his home. In 2018, Reality Winner, a former NSA translator was sentenced to more than five years for leaking a single classified intelligence report to the press.
Espionage Act cases that resulted in more lenient sentences, such as probation, tended not to involve aggravating factors, as the Trump and Teixeira prosecutions do, Roper said.
Jeffrey Cohen, a former federal prosecutor and professor at Boston College Law School, said it was not clear what defense Trump or Teixeira would mount.
“In some regards, Trump has admitted to the elements of the crime,” he said. “He’s said he retained the documents because they were his, that he was allowed to. In the Teixeira case, I don’t think there’s any denying that he was the one who put them out [on the Internet]. As a prosecutor, I’d feel pretty good about the basic elements of the crimes.”
In Florida, prosecutors have alleged that when Trump left the White House in January 2021, he took classified documents with him to his Florida home and country club, Mar-a-Lago, in dozens of bankers boxes. The documents detailed US weapons capabilities, defense vulnerabilities of the United States and its allies, and plans for an attack on a foreign country. The former president stored the documents haphazardly, while thousands of people passed through the club, prosecutors said.
When a federal grand jury ordered Trump to return the classified documents, he allegedly conspired with his assistant, Waltine Nauta, also indicted, to hide the documents from the government and even his own lawyers.
Teixeira allegedly removed classified military and intelligence documents from a Cape Cod military base, where he was an IT worker with the Massachusetts Air National Guard, and posted photos of them in an online group chat. Early this year, the photos leaked from the group and spread widely across the Internet.
In Trump’s and Teixeira’s alleged actions, Cohen sees a similar motivation, but a “generational” difference in their methods.
“For both of them, there was something appealing about the possession of classified information as a sort of a bragging rights,” he said.
But their different modes of communication led to drastically different consequences.
Prosecutors described fewer than a dozen people seeing the Trump documents, the five he allegedly showed them to plus several employees. Many of the Teixeira documents are now visible to millions, including US adversaries.
“If Mr. Trump had returned [the documents] when they asked, there would be no charges,” Siegmann said. By contrast, the government would have viewed charging Teixeira as urgent and necessary due to the risk of ongoing leaks, she said.
A key difference between the Trump and Teixeira cases is the venue of the anticipated trials or, more specifically, the presiding judge.
Teixeira is expected to face trial in Massachusetts where legal observers are confident the prosecution will succeed or fail on its merits.
That is not the case in Florida. There, the Trump-appointed judge overseeing the case has made public remarks and issued an unusual ruling that have led some legal experts to doubt her impartiality.
Last year, the judge, Aileen Cannon, blocked federal investigators from reviewing the classified documents they had seized from Mar-a-Lago in a raid. At the time, legal experts called the ruling “radical” and “laughably bad.” Days later, three appeals courts judges, including two appointed by Trump, reversed Cannon’s decision in what some legal observers described as a scathing rebuke.
“I think that there’s a question of whether she feels chastened by the response to her ruling, or if she feels emboldened. It is a big wild card in my mind,” Cohen said. “She has a lot of tools at her disposal to make the case harder for the government.”
The outcome of Trump’s case may also be hard to predict because it is unprecedented. He is the first US president charged with crimes. (He was also indicted in New York in April in an unrelated case stemming from hush money payments to porn star Stormy Daniels.)
Ultimately, Siegmann said, “a jury will have to make a determination about the guilt of the former president.”
Mike Damiano can be reached at email@example.com.