united-states criminal-law us-federal-government confidentiality secret
Security clearance of police officers
<p>My question is inspired by <a href="https://law.stackexchange.com/questions/93214">this one</a>, but it’s not the same.</p>
<p>It is my understanding that the federal law-enforcement officers who seized the boxes of documents held by “45” expected to find some papers that were confidential, secret, or top secret, eyes only, etc. So, I can understand that <em>some</em> form of security clearance was given to them, as explained in the answers to the above-mentioned question.</p>
<p>But let’s imagine, for the sake of argument, that law-enforcement officers had been exerting a warrant <strong>for a different reason</strong> than looking for classified documents—let’s say they had been looking for illegal drugs—but then stumbled upon them while performing their search for said drugs. Let’s even say the drugs were hidden in the same boxes.</p>
<p>Heck, for the sake of argument, let’s say a John Doe with some moral conscience had stumbled upon the documents, for example while using the washroom where they were hidden.</p>
<p>My question is thus: Would these law-enforcement officers or John Doe be “forgiven” from seeing the classified documents? It’s not like they <em>knew</em> there were classified documents there, and they just stumbled upon them…</p>
<p>What would happen to them, legally?</p>

<p>There is nothing to forgive.</p>
<p>The question presupposes that it is a crime to lay eyes on classified information.  Crimes related to classified information generally have an element of intent.  For example, from <a href="https://www.law.cornell.edu/uscode/text/18/793" rel="nofollow noreferrer">18 USC 793</a> (emphasis added):</p>
<blockquote>
<p>(a) Whoever, <strong>for the purpose of obtaining information respecting the national defense with intent or reason to believe</strong> that the information is to be used to the injury of the United States, or to the advantage of any foreign nation ...</p>
<p>(b) Whoever, <strong>for the purpose aforesaid, and with like intent or reason to believe</strong> ...</p>
</blockquote>
<p>The other subsections are similar, but subsection (e) is most directly applicable to the present hypothetical, so here it is in full:</p>
<blockquote>
<p>(e) Whoever having <strong>unauthorized</strong> possession of, access to, or control over 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, <strong>willfully</strong> 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, <strong>or willfully retains the same and fails to deliver it to the officer or employee of the United States entitled to receive it</strong>;</p>
</blockquote>
<p>Seeing the files is not <em>per se</em> a crime.  Finding the files and failing to ensure that they are returned to the government (or retuning them to the government while transmitting the information to unauthorized parties) is a crime.</p>

<p><a href="/questions/tagged/united-states" class="post-tag" title="show questions tagged &#39;united-states&#39;" aria-label="show questions tagged &#39;united-states&#39;" rel="tag" aria-labelledby="tag-united-states-tooltip-container">united-states</a></p>
<p>It is hard to prove a negative, so I will restrict my consideration to the kinds of offences with which Donald Trump was himself charged with under the <em>Espionage Act</em> (<a href="https://www.law.cornell.edu/uscode/text/18/part-I/chapter-37" rel="nofollow noreferrer">18 U.S.C. c. 37</a>).</p>
<p>None of the offences there would capture the activity you have described: &quot;<a href="https://www.lawfareblog.com/espionage-act-after-mar-lago-indictment" rel="nofollow noreferrer">Courts have also interpreted the act’s willfulness requirement to signify a knowing violation of the law</a>.&quot;</p>
<p><a href="/questions/tagged/canada" class="post-tag" title="show questions tagged &#39;canada&#39;" aria-label="show questions tagged &#39;canada&#39;" rel="tag" aria-labelledby="tag-canada-tooltip-container">canada</a></p>
<p>In Canada, an absolute-liability offence that comes with a risk of imprisonment would be inconsistent with s. 7 of the <em>Charter</em> and would be of no force or effect (<a href="https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/100/index.do" rel="nofollow noreferrer"><em>Re B.C. Motor Vehicle Act</em></a>, [1985] 2 S.C.R. 486). An offence that carries a risk of imprisonment must be predicated on knowledge or wilfullness or have due diligence available as a defence. So, it would not be constitutional in Canada for the offences in the <em>Espionage Act</em> (which carry a risk of imprisonment) to capture the circumstances you've described.</p>
