The problem for Trump is that, even if the Espionage Act attack works in a challenge, it would leave six counts. That includes three counts on withholding or concealing documents in a federal investigation; two counts on false statements, and one count on conspiracy to obstruct justice.

At the end of the day, even if the government was wrong on the Espionage Act, you are not allowed to obstruct or lie to federal investigators. …

In some ways, knocking out the 31 Espionage Act claims could produce a cleaner case for the jury and the country. It might also allow a court to rein in on this long-abused statute. It may even get the Congress to reconsider that mistake that it made in 1917.

[There may be specific problems with the full Espionage Act, and certainly a huge double standard in how the DoJ applied it to Hillary Clinton and Donald Trump. But how do you get rid of 18 USC 793 (which is only one part of the Espionage Act) and still protect national-security information? That material belongs to the United States, not the people who come into contact with it. If the criminal penalties for “mishandling” the material are removed, then it will become nearly impossible to enforce access limitations. Espionage techniques will simply adapt to the decriminalization of gross-negligence “mishandling.” I’m open to the idea of redoing the Espionage Act, but unless people want everything we do declassified and published openly, you’ll end up having to craft something nearly identical to replace it. — Ed]