Pentagon Leaker and Trump Are a Test of ‘Two-Tiered’ Justice System

While Donald Trump’s allies have been condemning a “two-tiered system of justice,” alleging that his indictment for mishandling classified documents is the result of political targeting, a better test case has been playing out in a federal courthouse in Worcester, Massachusetts.

On Wednesday, 21-year-old Massachusetts Air National Guard member Jack Teixeira was arraigned after being charged with breaking the same law as the former President a week earlier. Both men are charged with willful retention of national defense information, among other charges. Both men have pleaded not guilty.

The parallel, high-profile court cases are putting a spotlight on the differing applications of the Espionage Act, a century-old law intended to prosecute individuals who jeopardize national security. The law has been used to prosecute whistleblowers including Edward Snowden and Reality Winner. With Trump facing many of the same charges as Teixeira and several other lower-level individuals whose cases are being considered by the Justice Department, there will be pressure to demonstrate equality under the law given the serious risk to national security, legal experts say.

Evidence presented by federal prosecutors in both cases revealed that the two men were showing off their access to classified intelligence in part to brag about it: Trump to friends and visitors, Teixeira to members of a Discord group largely composed of teenagers. In both cases, prosecutors have presented evidence that the defendants knew what they were doing was illegal. And prosecutors say that both Trump and Teixeira attempted to cover their tracks.

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Legal experts also point to the similarities with the recent case of Robert Birchum. The 55-year-old former U.S. Air Force intelligence officer was sentenced earlier this month to three years in federal prison for keeping classified documents at “his home, his overseas officer’s quarters and a storage pod in his driveway,” according to federal prosecutors. Unlike Trump and Teixeira, he pled guilty to the charges and according to his lawyers expressed “true remorse.”

Read More: The Strange Saga of Jack Teixeira Reveals New Security Challenges

How Trump’s case is handled in comparison to Teixeira, Birchum and other lower-level individuals charged under the Espionage Act will be important, says Stephanie Siegmann, the former chief of the national security unit of the U.S. Attorney’s Office in Boston.

The handling of sensitive information “is really at the heart of our national security,” she tells TIME. “If people mishandle classified information, they get prosecuted. There shouldn’t be two sets of rules. Politicians should be held to the same standard as everyone else, because their conduct equally jeopardizes national security.”

On Wednesday, a judge denied Teixeira’s lawyers’ request to reconsider his detention order. Teixeira is currently being held in Plymouth County jail south of Boston, after prosecutors argued that he posed “a serious flight risk” and that foreign adversaries could help him flee.

“Jack will now have his day in court,” his family said in a statement on Wednesday. “And as we move through this process, we are hopeful that Jack will be getting the fair and just treatment he deserves.”

Teixeira was arrested in April, after hundreds of classified U.S. military documents he had shared with a private Discord server called “Thug Shaker Central” began circulating online. The military documents, which included sensitive documents about the war in Ukraine, complicated relations with U.S. allies and triggered national embarrassment. Teixeira was charged under the Espionage Act with unauthorized retention and transmission of national defense information, and unauthorized removal and retention of classified documents. On June 15, he was charged with six additional counts of illegal retention and transmission of national defense information. Each charge against Teixeira carries a potential sentence of up to 10 years in prison, and a fine up to $250,000.

That same week, Trump was arrested and arraigned in Miami on 37 criminal counts related to an investigation into classified documents he is accused of keeping and hiding after leaving the White House. This includes 31 counts of “willful retention of national defense information.” The 1917 Espionage Act identifies “national defense information” because it predates the current classified information system. Each charge carries a fine of up to $250,000, and maximum prison sentences between five and 20 years.

Read More: Why the U.S. Security-Clearance Process Has a Digital Blind Spot

The boxes of classified documents were stored in boxes at Trump’s Mar-a-Lago resort in Florida, including in a bathroom, a shower, and a ballroom stage. These documents “included information regarding defense and weapons capabilities of both the United States and foreign countries; United States nuclear programs [and] potential vulnerabilities of the United States and its allies to military attack,” prosecutors said, potentially putting “at risk the national security of the United States, foreign relations, the safety of the United States military, and human sources and the continued viability of sensitive intelligence collection methods.”

Both Trump and Teixeira acknowledged they understood the gravity of their actions, according to evidence presented by prosecutors. In an online chat in December 2022, Teixeira allegedly told members of the group that he was “breaking a ton of [unauthorized disclosure] regs,” but said, “[I don’t give a f—k] what they say I can or can’t share,” according to chat logs released in the filings.

Teixeira “made clear his understanding of the unlawfulness of his disclosures, adding that ‘none of this is public information,'” prosecutors wrote. “His own posts make clear that he simply did not care what his government or his superiors told him he could or could not share, and the government submits that he would not give any more weight to whatever conditions the court imposes.”

In Trump’s case, recordings cited by prosecutors show that the former President acknowledged that he shouldn’t be showing friends and associates documents they weren’t authorized to see, and that he had not actually declassified them under his powers as President as he later claimed (“See, as president I could have declassified it…Now I can’t, you know, but this is still a secret.”)

Although only Trump has been charged with obstruction, prosecutors have presented evidence that both he and Teixeira tried to impede potential investigators. Authorities found a tablet, a laptop, and an Xbox gaming console in the dumpster outside Teixeira’s house after he was arrested in April. All of them had been smashed. He also told other online members of his Discord group to “delete all messages” and “[i]f anyone comes looking, don’t tell them s–t,” according to prosecutors. These efforts “appeared calculated to delay or prevent the government from gaining a full understanding of the seriousness and scale of his conduct,” they said in the filing.

“I’d be very surprised if he isn’t charged with obstruction,” says Siegmann. “He destroyed evidence.”

In Trump’s case, he ignored a subpoena in May 2022, and had his staff move the boxes of classified information around, often sloppily and without securing them. His lawyer said in one conversation Trump made a “plucking motion” that implied, “why don’t you take them with you to your hotel room and if there’s anything really bad in there, like, you know, pluck it out,” according to court filings.

While it remains to be seen what consequences Trump and Teixeira will face, legal experts say the Justice Department will seek to emphasize the seriousness of the national security risks.

The classified documents included information provided by individuals who “know that their lives could be in jeopardy as a result of providing information to the U.S. government,” says Siegmann. “A former President understands the consequences far more than a normal person.”