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As fallout from a Trump administration group chat about a military attack in Yemen continues to unfold, some Democrats are saying the inadvertent inclusion of a journalist in the chat goes beyond incompetence — they say it was criminal.
Legal experts on national security issues say Democrats may have a point, that a case could be made that the chat violated a provision of the Espionage Act. But they say it is highly unlikely such a prosecution would be initiated by the Trump administration against one of its own.
Speculation about culpability for the chat that included Jeffrey Goldberg, editor-in-chief of The Atlantic, and whether any of the Trump administration officials involved in the chat should face any consequences continues to percolate on Capitol Hill. The chat between top administration national security officials took place on Signal, a private encrypted messaging app. Goldberg reported on March 24 that he had received a connection request through the app from National Security Adviser Michael Waltz, who then added him to the chat.
On March 26, after several administration officials insisted the information shared in the chat was not classified, the Atlantic published more of the messages. In one of them, Defense Secretary Pete Hegseth appeared to provide a timeline for impending U.S. military strikes in Yemen on March 15.
Department of Defense regulations specifically prohibit use of the app to share “non-public DoD information.”
“Unmanaged ‘messaging apps,’ including any app with a chat feature, regardless of the primary function, are NOT authorized to access, transmit, process non-public DoD information. This includes but is not limited to messaging, gaming, and social media apps. (i.e., iMessage, WhatsApps, Signal),” according to a 2023 DoD memo. NPR reported that just days after the Signal chat on March 15, the Pentagon issued a warning that a “vulnerability has been identified in the Signal Messenger Application” and that “Russian professional hacking groups are employing the ‘linked devices’ features to spy on encrypted conversations.”
House Speaker Mike Johnson said the use of Signal for the chat was “a mistake,” and President Donald Trump said that Waltz — who took “full responsibility” for the inadvertent inclusion of Goldberg in the chat — “has learned a lesson.” But Democrats say that’s not enough. Some have called for a formal investigation. On March 25, House Minority Leader Hakeem Jeffries sent Trump a letter calling on him to fire Hegseth “immediately.”
Some leading Democrats have gone even further, saying the chat was illegal or that its participants ought to be prosecuted.
- “This is blatantly illegal and dangerous beyond belief,” Sen. Elizabeth Warren posted on X on March 24. “Our national security is in the hands of complete amateurs.”
- “I am horrified by reports that our most senior national security officials, including the heads of multiple agencies, shared sensitive and almost certainly classified information via a commercial messaging application, including imminent war plans,” Rep. Jim Himes, the ranking member of the House Permanent Select Committee on Intelligence, said in a statement on March 24. “If true, these actions are a brazen violation of laws and regulations that exist to protect national security, including the safety of Americans serving in harm’s way.”
- “At this moment, the White House and Secretary Hegseth are trying desperately to underplay a extraordinary blunder,” Sen. Jack Reed, the ranking member of the Senate Armed Services Committee, said at a press conference on March 25. “We cannot overstate how serious of a disaster it is. If an American service member texted classified information about an active military operation to an unknown number on an unclassified app, they would be dismissed, investigated and prosecuted.”
- “Every single one of the government officials on this text chain have now committed a crime – even if accidentally – that would normally involve a jail sentence,” Sen. Chris Coons said in an X post that appears to have since been deleted.
Warren’s press office pointed us to stories that suggest participants in the Signal exchange may have violated a part of the Espionage Act that makes it illegal to inadvertently share “through gross negligence” sensitive national security information.
The section of the law related to the handling of defense information states: “Whoever, being entrusted with or having lawful possession or control of any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, note, or information, relating to the national defense” and “through gross negligence permits the same to be removed from its proper place of custody or delivered to anyone in violation of his trust, or to be lost, stolen, abstracted, or destroyed … Shall be fined under this title or imprisoned not more than ten years, or both.”
Kevin Carroll, a lawyer who specializes in national security litigation and previously worked as a CIA officer, told us in a phone interview that the Signal chat was “100%” a violation of that law.
“In a society of laws, the FBI director would read this in the Atlantic Monthly, and … tell the FBI Washington field office to start an investigation of people, and the investigation would be managed by the counterespionage section of the national security division” in the Department of Justice, Carroll said. “And there’s just no question, zero question, that in any administration other than this, that is what would happen.”
“It’s absolutely the kind of thing where if Hegseth and others were junior military personnel, they would absolutely be court-martialed,” Carroll said. “If they were civilians, they’d absolutely be prosecuted by the counter espionage section of the Justice Department. … Hegseth and these other guys would absolutely be sent to prison if we were living in a society of laws, which we’re no longer living in.”
In a press conference on March 26, Secretary of State Marco Rubio — who participated in the chat — said that while “obviously someone made a mistake” by adding a journalist to the chat group, he was assured by the Pentagon that “none of the information on there at any point threatened the operation or the lives of our servicemen. And, in fact, it was a very successful operation.”
The same day, Hegseth posted on X, “So, let’s me get this straight. The Atlantic released the so-called ‘war plans’ and those ‘plans’ include: No names. No targets. No locations. No units. No routes. No sources. No methods. And no classified information. Those are some really shitty war plans.”
According to The Atlantic, two hours before the scheduled start of the bombing in Yemen, Hegseth shared this with the chat group:
- “TIME NOW (1144ET): Weather is FAVORABLE. Just CONFIRMED w Centcom we are a GO for mission launch.“
- “1215et: F-18s LAUNCH (1st strike package)”
- “1345: ‘Trigger Based’ F-18 1st Strike Window Starts (Target Terrorist is @ his Known Location so SHOULD BE ON TIME – also, Strike Drones Launch (MQ-9s)”
- “1410: More F-18s LAUNCH (2nd strike package)”
- “1415: Strike Drones on Target (THIS IS WHEN THE FIRST BOMBS WILL DEFINITELY DROP, pending earlier ‘Trigger Based’ targets)”
- “1536 F-18 2nd Strike Starts – also, first sea-based Tomahawks launched.”
For Hegseth to claim that “the impending target and time and method of a manned aircraft attacking something is not classified is preposterous,” Carroll said. And in any case, he said, the information need not to have been marked as classified to run afoul of the Espionage Act.
“It’s obviously national defense information,” Carroll said. “So that’s the controlling criteria: Is it or is it not national defense information that could be helpful to an adversary.”
“Yes, it’s possible that the Espionage Act was violated here,” David Alan Sklansky, a professor who teaches criminal law at Stanford University, concurred in an email. “That depends on two things: first, whether the information carelessly disclosed to Jeffrey Goldberg was ‘information relating to the national defense’ within the meaning of the statute, and second, whether the information was provided to Jeffrey Goldberg through gross negligence.
“The first requirement is probably satisfied,” Sklansky said. “Courts generally treat information as falling within the protection of this statute if it relates to military facilities or activities, and if it is ‘closely held’ by the government, as opposed to being made generally available to the public. The information posted on the Signal chats appears to qualify.
“So the question comes down to whether one or more of the officials participating in the chat exhibited gross negligence in the handling of this information–in other words, whether they departed egregiously from the standard of care that would be expected,” Sklansky said. “That’s hard to assess definitively without knowing more about how all this happened, but there certainly are grounds for suspecting that gross negligence was involved. If the case were prosecuted, this would be a question for the jury.”
But neither Sklansky nor Carroll thinks any charges will be filed against anyone involved in the Signal chat.
“It is highly unlikely that this case will be criminally investigated, let alone prosecuted, because that would be the job of federal prosecutors and law enforcement agents, and the Trump Administration has, to put it mildly, shown little interest in holding itself to account for violations of the law,” Sklansky said.
Carroll put it more bluntly: “It would be more likely that a Jim Crow South sheriff would prosecute a murder by the Klan than that [FBI Director] Kash Patel and [U.S. Attorney General] Pam Bondi are going to investigate this.”
Trump was asked in a White House meeting on March 25 if he planned to investigate the matter.
“It’s not really an FBI thing,” Trump said. “It’s really something having to do with security — security like will somebody be able to break in? Are people able to break into conversations? And if that’s true, we’re going to have to find some other form of device. … But we’ll look into it.” Trump said he asked Waltz “to immediately study that and find out.”
In a press briefing on March 26, White House Press Secretary Karoline Leavitt said “the National Security Council, the White House counsel’s office and also, yes, Elon Musk’s team” were looking into the issue. “Elon Musk has offered to put his technical experts on this to figure out how this number was inadvertently added to the chat, again, to take responsibility and ensure this can never happen again,” Leavitt said.
There’s another legal issue being debated about the use of Signal, which allows messages to be deleted after a set amount of time. Messages in the chat in question were set to be automatically deleted in four weeks.
Federal open-records laws, including the Presidential Records Act and the Federal Records Act, require records to be kept of all communication involving official government business, Alex Howard, deputy director of the Sunlight Foundation, told NextGov in February.
According to the National Archives and Records Administration: “Agencies that allow employees to send and receive official electronic mail messages using a system not operated by the agency must ensure that Federal records sent or received on such systems are preserved in the appropriate agency recordkeeping system.” Guidance from NARA in 2015 stated, “Employees create Federal records when they conduct agency business using personal electronic messaging accounts or devices. This is the case whether or not agencies allow employees to use personal accounts or devices to conduct agency business. This is true for all Federal employees regardless of status.”
An update of the federal records laws in 2014 allows federal employees “using a non-official electronic messaging account” to provide records of those communications to federal archivists within 20 days. So as Josh Gerstein wrote for Politico on March 25, “That means the officials involved in these discussions on Signal still have time to comply since these messages came about 10 days ago.”
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