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It's Not the Law’s Fault that Trump Broke It
Misleading attacks on the Espionage Act fail to exonerate the former president.
What, if anything, is wrong with the Espionage Act of 1917? The question is pertinent right now because a certain former president of the United States is facing 31 counts of violating the law. In particular, Donald Trump is charged under the provision that makes it a crime to “willfully retain” national defense information without authorization and then fail to deliver it on demand to an officer of the United States entitled to receive it. He has also been indicted on six other charges in connection with the classified documents he hoarded at his Mar-a-Lago club, including conspiracy to obstruct justice; and making false statements to federal investigators.
In defending the former president, his allies and apologists are—as usual—hurling spaghetti at the wall to see what sticks. One of the spaghetti strands is an attack on the espionage statute itself. A revealing instance is an article published in the Free Press by Eli Lake, a writer for the conservative New York Sun.
Lake occupies the curious position of being a Never Never Trumper. On the one hand, he is a scathing critic of Trump—he recently called him unfit for the presidency, “a demented narcissist, a con man and a liar.” On the other hand, he recurrently comes to Trump’s defense: He condemns the FBI for supposedly “railroading” Trump’s first national security advisor, General Michael Flynn; he regularly echoes Trump’s claim that he has been the “victim of abusive investigations”; and he mocks Trump’s critics, whom he sneeringly calls the anti-Trump “resistance.” In short, his stance is to wish a plague on both houses: Trump and Trump’s critics alike.
Lake’s argument about the Espionage Act, in a piece titled “Trump Probably Broke the Law. But That Law Shouldn’t Exist,” runs as follows.
Attorney General Merrick Garland “should not have allowed his special counsel, Jack Smith, to bring this prosecution in the first place.” Lake offers several reasons. “The most important,” he says, is that the 1917 Espionage Act is “a train wreck” of a statute. This law, he informs readers, “has been used as a weapon against American dissidents.” A case in point—Lake’s “Exhibit A”—is that “Socialist leader Eugene V. Debs was convicted in 1917 of violating the Espionage Act because he gave a speech urging his audience to interfere with military recruitment.” Notwithstanding Debs’s First Amendment rights, the Supreme Court upheld the conviction, and he remained locked up until President Warren Harding commuted his sentence in 1921 (without pardoning him). “Today we regard the prosecution of Debs,” writes Lake, “as an obscene abuse of prosecutorial power from the Justice Department.”
Another of the “major problems” with the Espionage Act, Lake continues, is that “it does not distinguish between actual spies—people who give or sell state secrets to a foreign power—and those who seek to inform the American people about their government’s excesses and abuses.” Thus, according to Lake, “real spies,” like Julius and Ethel Rosenberg, and leakers or whistleblowers, like Daniel Ellsberg, are treated without distinction.
If all this were true it would indeed be very troubling. Such a blunt and overreaching law, exactly as the Free Press headline has it, “shouldn’t exist.” Fortunately, such a law, in reality, doesn’t exist, or at least it doesn’t exist today. Lake’s column is a farrago of errors.
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To begin with, Debs was convicted not in 1917 but in 1918. A minor slip, except for this: The provisions of the law under which Debs was indicted were not yet on the books in 1917. He was charged under the Sedition Act of 1918, which, among other draconian clauses, punished those who “willfully utter, print, write, or publish any disloyal, profane, scurrilous, or abusive language about the form of government of the United States.” This points to another error. It was not, as Lake asserts, the Justice Department that abused its prosecutorial power in an “obscene” fashion; the law itself—the Sedition Act—was the core problem, and the Justice Department was acting fully in accord with it.
The Espionage Act of 1917 and the Sedition Act of 1918 are often confused because the latter came in the form of amendments to the former, and courts—and some historians—either do not make the distinction or refer to the Sedition Act as “the Espionage Act as amended,” so Lake cannot fairly be faulted for any mix-up on this score. But the important point is that the Sedition Act, with its far-reaching repressive provisions, was repealed in its entirety in 1920. The Debs case is therefore a red herring. For whatever the proper nomenclature, Espionage Act or Sedition Act, the fact is that the repressive provisions of that era are defunct and have only a historical relationship to the law under which President Trump is charged and no bearing whatsoever on whether that law is bad, as Lake alleges. (The Free Press ran a correction offering the proper date of Debs’s conviction but it makes no reference to the repeal of the egregious Espionage Act/Sedition Act provisions.)
It is, moreover, a falsehood to claim, as Lake does, that the Espionage Act of 1917 “does not distinguish between actual spies—people who give or sell state secrets to a foreign power—and those who seek to inform the American people about their government’s excesses and abuses.” Donald Trump, like Ellsberg, has been charged with violating Section 793 of the Espionage Act, which is employed for garden-variety leakers—“whistleblowers” in Lake’s parlance—and others who mishandle secret information.
But there is another provision in the law, Section 794, that Lake fails to mention. It criminalizes “Gathering or delivering defense information to aid foreign government.” This is the provision that proscribes classic espionage. The distinction between 793 and 794 is perfectly clear. Violating the former is punishable by not more than ten years imprisonment. The latter, spying for a foreign power, is punishable by up to life imprisonment, or death, which is what the Rosenbergs received.
None of this is to deny that there are real problems with the Espionage Act of 1917. The law is confusing and vague at points. Some of the behavior it potentially criminalizes is essential to modern journalism. Reporters routinely get ahold of and publish U.S. government secrets and could, theoretically, be prosecuted for activities preparatory to such publication, such as unauthorized possession or retention.
But throughout the entire history of the statute, there has never been a successful prosecution of journalists for such a crime. Because of the First Amendment’s protections of the freedom of the press, successive Justice Departments have never gone in that direction.
There are only two partial exceptions of note. The first occurred in World War II after the Chicago Tribune published a story strongly suggesting that the United States had broken Japanese codes. Though the revelation was a potentially devastating blow to the U.S. war effort, the Justice Department opted not to prosecute for fear of drawing additional attention to a story that the Japanese appeared not to have noticed.
More recently, the Trump Justice Department indicted Julian Assange of WikiLeaks for activities related to the publication of material provided to him by mega-leaker Chelsea Manning. The case is pending as the United States seeks Assange’s extradition from Great Britain and, no matter what one thinks of WikiLeaks, the prosecution poses a genuine threat to the First Amendment. The Biden Justice Department has been under intense pressure to drop it.
Whatever the outcome of the Assange case, the Espionage Act of 1917 has been on the books for 106 years and the courts, through innumerable cases, have left us more than a century of precedents that have, at least to some extent, clarified its ambiguities and cured its defects, making it in no sense a “train wreck.” The idea that the law “shouldn’t exist,” as the title of Lake’s article would have it, is ridiculous. No democratic government could function without a law protecting national security secrets. The worst thing about the Espionage Act is probably its name; for not every transgression under its rubric is espionage. Though indicted under its heading, former President Trump has not been accused of committing espionage. At the very least, a sensible reform would give the statute a new, more appropriate name.
Reform or no reform, Lake’s charge that the Espionage Act of 1917 is a “weapon against American dissidents” is a falsehood about the statute and a slander against the United States. “Dissidents” is a word borrowed from an authoritarian or totalitarian context and (except for the period 1918-20 when the Sedition Act was in force) inapplicable to the United States, where, thanks to the First Amendment, speech is virtually unfettered. The charge has lately been advanced not only by Lake, but by two left-wing historians, Ralph Engelman and Carey Shenkman, in a book titled A Century of Repression: The Espionage Act and Freedom of the Press. As I argued in a review for Lawfare, the title itself is a lie. There has been no century of repression.
One additional point: Lakes writes that “the damage done by [Trump’s] hoarding of documents has been mitigated” because “The FBI has retrieved the state secrets that Trump insisted were his property.” This is balderdash. As far as mitigation is concerned, mere retrieval of the documents is meaningless. Engaging in Trump apologetics, Lake seriously minimizes the harm Trump inflicted on national security.
By official definition, the disclosure of information in documents marked top secret could cause “exceptionally grave damage to the national security.” Top-secret documents, some of which bore ultra-secret SAP and SCI classification markings, were stored in rooms at Mar-a-Lago that were not secure in the least, including a bathroom and a shower. Some of the rooms were public spaces, like the stage of a ballroom. Even the so-called “storage room,” as the indictment notes, “could be reached from multiple outside entrances, including one accessible from The Mar-a-Lago Club pool patio through a doorway that was often kept open.” (There are also at least two classified documents that were taken to Trump’s Bedminster golf club, which, according to public reporting, are unaccounted for.)
In 2019, a Chinese national was arrested at Mar-a-Lago carrying espionage appurtenances, including four cell phones, a thumb drive, and a hard drive. Multiple foreigners attend Mar-a-Lago events or work on the premises. The club was known to be a rich intelligence target. Whether top-secret information was compromised is unknown and probably unknowable, unless and until the damage starts showing up in intelligence sources drying up and intelligence methods rendered ineffective. Meanwhile, it is only prudent for the U.S. intelligence community to assume the worst. The consequences of the massive security breach have not been mitigated in the least.
Donald Trump, as Lake correctly has it, is “a demented narcissist, a con man and a liar.” Defending him from his glaring legal jeopardy is a difficult chore. It can lead one into the realm of easily rubbished claims and strange bedfellows, which is where Eli Lake appears to have ended up.