Ever since the 100-year-old US Espionage Act was cited in the warrant for the search of former US president Donald Trump’s Florida residence, Twitter and cable news have been rife with misinformation about the law and what it means. Those clamoring for Trump to be prosecuted under the act are spreading misleading statements in the process.
First, just because the law is called “the Espionage Act,” it does not mean there is any evidence Trump committed “espionage.” MSNBC hosts and their former CIA guests are speculating that because Trump had these documents at his house, it is connected to the spate of deaths of CIA assets around the world.
What a convenient excuse for the CIA. There is no evidence that Trump having some classified documents at this compound led to any deaths, and it lets the CIA completely off the hook for continually getting people killed, which has been happening for decades. There was a New York Times investigation from several years ago about CIA asset networks in China and Iran being rounded up and executed, which dated back to 2010. Tim Weiner’s classic history of the CIA, Legacy of Ashes, also details how that has happened over and over again throughout the agency’s history, with little or no public accountability.
Illustration: Yusha
No evidence that the documents fell into the wrong hands is needed to be guilty under the Espionage Act. As US blog Lawfare points out, all that is required is the holding of government documents pertaining to national defense without returning them. The primary target for the Espionage Act in recent years has not been government officials selling secrets to foreign governments, but patriotic whistle-blowers who have handed journalists classified proof of wrongdoing inside the US national security apparatus. Sources of stories that uncover illegal mass surveillance, extrajudicial drone strikes, discriminatory FBI practices, and matters of war and peace have all been targeted with the law. That is exactly why civil liberties advocates have been sounding the alarm about the statute for years.
It is not just the law’s usual targets that are the problem. The law is incredibly sweeping and ties the hands of anyone charged under it so they cannot make an adequate defense. Journalists’ sources prosecuted under the Espionage Act have not been allowed to tell their jury why they did what they did — “I did this to expose government wrongdoing or illegal behavior” is inadmissible. They are also not allowed to talk about the benefits of the public knowing the information they handed over, nor are they allowed to challenge whether the information was correctly classified in the first place.
This last issue is especially pernicious, since the US government has a huge over-classification addiction, where they stamp a “secret” label on virtually everything that comes across their desk, whether it is an actual state secret or not. A bevy of former government officials have testified to this fact to the US Congress for years, yet the problem continues.
In all these previous cases, the US Department of Justice takes the position that everything leaked to journalists is highly sensitive and top secret, and that any leaks put lives at risk. Editors at major newsrooms have heard this so often from government officials that they have stopped believing it when documents are in their own possession. It is no surprise that I am skeptical of the justice department’s explosive hints and leaks about what was potentially in the documents Trump had in his possession. Furthermore, journalists and pundits on Twitter should not be breathlessly repeating vague claims like this, just because they hate Trump.
As whistle-blower Reality Winner said, it is “incredibly ironic” that Trump is now being investigated under the statute, given that his administration brought at least five cases against government employees who gave information to journalists, and sought far more prison time in those cases than administrations before it. His administration took the law an unprecedented step further to prosecute WikiLeaks frontman Julian Assange, which the Guardian and many other press freedom organizations considers a grave danger to the rights of journalists everywhere.
It is absurd to suggest that Trump is a whistle-blower, or acting as a journalist, but further legitimizing a terrible law — and even expanding its reach beyond people who sign secrecy agreements — could have implications.
Given the mountain of shady and horrible activities Trump engaged in before, during and even after his presidency, it seems short-sighted for everyone to hinge their hopes on an investigation into whether he held on to some documents longer than he should have.
Trump should be subject to the laws everyone else is, and that is not to say the US government should not be able to control actual secrets. There are plenty of other options besides the Espionage Act to choose from. The Florida warrant cites potential violations of three other statutes, including obstruction of justice, which would still result in a prison sentence if he is found guilty. I hope Trump is held accountable for his insidious corruption and potential crimes, but the US should not prop up one of the most pernicious laws on the books to do it.
Trevor Timm is executive director of the Freedom of the Press Foundation.
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