Below is my column in the Daily Beast on the use of the Espionage Act against former president Donald Trump in the federal prosecution by Special Counsel Jack Smith. The statute is currently being used against Julian Assange and has a long and troubling history.
Here is the column:
“May God have mercy on them, for they need expect none from an outraged people and an avenging government.” Those were the words from Attorney General Thomas Gregory in November 1917, when Congress enacted the Espionage Act, the very act now being used to prosecute former president Donald Trump.
Many of us in the free speech community have long denounced the Espionage Act, which was passed to crackdown on political dissidents, particularly those opposed to World War I.
In a forthcoming book, I explore the checkered history of this Act where thousands were arrested for political speech. In an age of rage, the Espionage Act is the government’s favorite weapon to use against its critics.
The Act often seems like the last refuge of the government when it lacks any other means to punish targeted persons. This includes the continued prosecution of Julian Assange for publishing classified information, an act that newspapers have regularly done throughout history to expose government lies and abuses.
In a curious way, the charges against Trump are welcomed as another opportunity for the courts to look at this insidious law. That need existed long before the raid on Mar-a-Lago.
For years, I have expressed reservations about criminal allegations raised against Trump, including the dubious prosecution by Manhattan District Attorney Alvin Bragg. However, even before the appointment of Special Counsel Jack Smith, I also stated that the real threat to Trump would come at Mar-a-Lago.
The Trump indictment hit as expected: hard and below the waterline. It includes an audiotape that portrays Trump pointing to a document that he says is a classified attack plan on Iran. In contradiction to his public claims, Trump admits that he did not declassify the document and thus could not show it to two guests. There are also pictures of documents stacked around a toilet—succeeding in matching the image of President Joe Biden storing documents next to his Corvette in his garage.
Thirty-one of the 37 counts fall under the Espionage Act, which criminalizes allegations that require a showing—under 18 U.S. Code § 793—that someone “having unauthorized possession of, access to, or control over any document … relating to the national defense” “willfully retain[ed] the same and fail[ed] to deliver it to the officer or employee of the United States entitled to receive it.”
The pictures in the indictment are clearly designed to drive home the gross mishandling of documents to the public. No one is seriously going to argue that storing documents in a ballroom or next to a commode are good retention practices.
The law references an intent either to harm the national security of the U.S. or benefit a foreign power. No one is suggesting that harm actually occurred or that Trump intended to cause such harm. However, the government is proceeding under specific provisions making mishandling (and the refusal to turn over documents) a crime. That is the harm that the government will argue.
The indictment may have revealed the motive that the government believes is behind the inexplicable refusal of Trump to turn over these documents: vanity. Trump is portrayed as showing the Iran attack documents like a trophy. That is not a great fit with the Espionage Act.
The government can read Trump’s alleged words: “I don’t want anybody looking” and “I don’t want anybody looking through my boxes, I really don’t, I don’t want you looking through my boxes.” The prosecutors may use these scenes to portray Trump like a Captain Queeg or a Gollum, jealously protecting his treasure.
However, for most citizens, retaining documents for vanity does not merit charges under an espionage (or any criminal) law, particularly if there is no showing of actual harm to national security.
The use of the Espionage Act avoided basing the case entirely on false statements or another provision—under 18 U.S. Code § 1924—that prohibits unauthorized removal and retention of classified information. That statute, however, would have put debates over classification authority that Smith clearly wanted to avoid.
The problem for Trump is that, even if the Espionage Act attack works in a challenge, it would leave six counts. That includes three counts on withholding or concealing documents in a federal investigation; two counts on false statements, and one count on conspiracy to obstruct justice.
At the end of the day, even if the government was wrong on the Espionage Act, you are not allowed to obstruct or lie to federal investigators.
In adding the 31 Espionage Act counts, the Justice Department was engaging in a familiar tactic to those of us who have handled national security and criminal cases on the defense side. It “count stacked” to try to get the jury to, at a minimum, compromise in giving it convictions on some of these counts.
In some ways, knocking out the 31 Espionage Act claims could produce a cleaner case for the jury and the country. It might also allow a court to rein in on this long-abused statute. It may even get the Congress to reconsider the mistake that it made in 1917 — and replicated in later years.
That is why the Trump indictment is historic, but it is also history repeating itself with the government reaching for this dangerously all-purpose statute.
Professor, I am puzzled!
Not only that your work is commissioned by FNN, NYP, The Hill, USA Today, and Messenger but also by the Daily Beast, a clear left biased propaganda outlet. Anyone who manages to package legal aspects of the indictment of former President Trump in such a way that a left-wing readership does not immediately erupt, would have been an ideal WH Press Secretary, knowing that neither you nor # 45 had sympathize with this hypothetical idea.
When Julian Assange is associated with espionage for publishing classified information, decency dictates that DNC voter expansion data director Seth Rich (27), was executed the time “some” e-mails found the way to Wiki-Leaks” almost seven years ago.
A minor cause can have a major effect:
When talking about “Espionage Act”, one should also not forget that Paula Broadwell went “All In”: Her jealousy, expressed in e-mails to Jill Kelley, a Tampa, FL socialite, set an avalanche in motion, which led first to the dismissal of CIA Director David Petraeus and three years later [1] he played guilty to a misdemeanor charge of mishandling classified information and worked out a plea deal, avoiding an embarrassing public trail (and possible jail time).
President Trump’s indictment is based on subpoenas and an execution of a search warrant (aka “raid”) referenced the “Espionage Act”. This brings me to this question:
Can President Trump successfully invoke “malum prohibitum” because he was misrepresented by his lawyers?
After all, it wasn’t until he read the indictment that Jim Trusty realized what it’s all about and pulled the ripcord! Reading the “Statutory Authority” redacted 38 pages affidavit, “Espionage Act” as well as EO 13,526 was referenced (ten months earlier)!
[1] https://www.justice.gov/sites/default/files/opa/press-releases/attachments/2015/03/03/petraeus-factual-basis.pdf
Ukraine can become a member of NATO today after lunch. How hard is it for 31 people to vote yes or no?
To vote yes, is to vote for the real possibility of nuclear war.
Something normal people, especially in that region, have to take into serious consideration.
I disagree with JT on the second part of his legal analysis. My question is, can an obstruction charge and one of lying to federal agents survive if there is no underlying predicate crime? If an FBI agent should ask me what day of the week it is and I falsely tell him Sunday when I know it is Tuesday, have I committed an 18 USC 1001 violation? No. If I take steps to protect what I believe is my property – and have good reason to believe so – have I really obstructed justice? Both of these charges dissolve when the underlying predicate crime is determined not to be a crime. The first part of JT’s analysis explains why a specific statute like the PRA takes precedence over a general one like the antiquated and constitutionally dubious Espionage Act. The use of the latter in this case would be as appropriate as if the Rosenbergs, Pollard, or Hanssen – all convicted of Espionage Act violations – would have at the times of their trials claimed that they should be tried under the Presidential Records Act. I know it wasn’t around when the Rosenbergs were tried but my point is the same. But then, this case will never go to trial. The House investigation of Biden’s bribery scandal is pushing him close to a universal pardon of Biden’s family and himself and to get away with it and not destroy his candidacy for 2024, he will magnanimously pardon his opponent and all will march along graciously and in peace as karma returns Trump to the WH.
So Turley whips out his argument that Trump’s indictments just don’t rise to the level, we all heard that one before from Turley, with his defense of Trump on his two impeachments. There is no bottom or shame from Turley when it comes to muddling up the water for Trump.
In 2016, the leaders of DOJ put a target on the back of their chief political rival, a man who would become president, a man they hate, a man named Donald Trump. For the next seven years, the DOJ spent tens of millions of dollars investigating Trump, pondering statute after statute, trying to think of something to charge him with. Now, lo and behold, the DOJ thinks it has gotten its man. We’ll see.
I preface my remarks by saying that, there are those, herein, who may argue that the forthcoming is already established fact. I am not satisfied that such is the case, Nor do I believe that, the citizenry at large knows either, considering the psychofanatical tomfoolery that tends to preoccupy the daily lives many of them seem to need to get. The current new ‘adventures’ of the Kardashians, as example. But I digress. The many opinions and arguments offered up in the matter at hand, it appears to me that it yet remains unclear what documents may NEVER revert to the physical/personal possession of a current or former President of the United States, either privately, or in a library, or elsewhere under ANY circumstances.. That which may be defined and declared and assigned to a President’s ‘own;, and that which remains ‘the People’s’ under what ever care and custody they are held, must be made clear, unequivocal, and incontrovertible, notwithstanding the President’s right to determine the ‘status’ of same. .Even that must be further clarified going forward.
The executive Power shall be vested in a President of the United States of America.
I like to start at the beginning. Then follow the path outlined in the Constitution.
The word used in the constitution is “power”. All Power originates from the people, then delegated in steps from there.
The “power” concerning classifed, ‘sensitive’ information, is vested in the President of the United States.
The Constitution doesn’t mention classification, and no records were classified when the Constitution was written.
Proves my point. Yes? Exactly were does the POWER reside to make any such determination?
We’ll cut to the end.
The executive Power shall be vested in a President of the United States of America.
Nothing in the Constitution says that the power to classify lies solely with the Executive Branch. The Constitution is silent about classification.
Trump Probably Broke the Law. But That Law Shouldn’t Exist.
“The former president’s actions were craven, reckless, and stupid. So is the decision to prosecute him for violating the 1917 Espionage Act.”
– Eli Lake
https://www.thefp.com/p/trump-indictment-espionage-act?utm_source=substack&utm_medium=email
If they invoke espionage as a crime, biden should surely be worried, as would be the rest of his crime family.
@𝐓𝐮𝐜𝐤𝐞𝐫𝐂𝐚𝐫𝐥𝐬𝐨𝐧
Ep. 4 𝑾𝒂𝒏𝒏𝒂𝒃𝒆 𝑫𝒊𝒄𝒕𝒂𝒕𝒐𝒓
By: Tucker Carlson · Jun 15, 2023
https://twitter.com/TuckerCarlson/status/1669472439472988161?ref_src=twsrc%5Etfw
Twitter Video Link:
https://video.twimg.com/amplify_video/1669467581286105088/vid/1920×1080/rJiLpF16fiieEUD8.mp4?tag=16
𝐑𝐞𝐛𝐮𝐭𝐭𝐚𝐥: Re. Alexander Vindman ~ msnbc.com spokesman
𝐋𝐭. 𝐂𝐨𝐥. 𝐀𝐥𝐞𝐱𝐚𝐧𝐝𝐞𝐫 𝐕𝐢𝐧𝐝𝐦𝐚𝐧: 𝐓𝐫𝐮𝐦𝐩 ‘𝐚𝐬𝐩𝐢𝐫𝐞𝐬 𝐭𝐨 𝐛𝐞 𝐚 𝐝𝐢𝐜𝐭𝐚𝐭𝐨𝐫’
https://www.msnbc.com/the-last-word/watch/lt-col-alexander-vindman-trump-aspires-to-be-a-dictator-171224645657
𝐅𝐫𝐞𝐞 𝐭𝐨 𝐬𝐩𝐞𝐚𝐤 𝐡𝐢𝐬 𝐦𝐢𝐧𝐝, 𝐕𝐢𝐧𝐝𝐦𝐚𝐧 𝐬𝐞𝐞𝐬 𝐓𝐫𝐮𝐦𝐩 𝐚𝐬 𝐏𝐮𝐭𝐢𝐧’𝐬 ‘𝐮𝐬𝐞𝐟𝐮𝐥 𝐢𝐝𝐢𝐨𝐭’
For months, Alexander Vindman made no real effort to defend himself or fire back at the Republicans who tried to tear him down. Now, it’s different story.
https://www.msnbc.com/rachel-maddow-show/free-speak-his-mind-vindman-sees-trump-putin-s-useful-n1240036
Vindman is a liar and a fool. Figures you like him. MSNBC is the home for Progressive propaganda.
Wen Bars – I only report the news – GOT IT PAL
No. You support MSNBC’s brand of news. That is not news.
Since you are such an indignant little stinking gentile, I’ll spell it out for you.
The First post is Tucker’s Twitter Post with video.
@𝐓𝐮𝐜𝐤𝐞𝐫𝐂𝐚𝐫𝐥𝐬𝐨𝐧
Ep. 4 𝑾𝒂𝒏𝒏𝒂𝒃𝒆 𝑫𝒊𝒄𝒕𝒂𝒕𝒐𝒓
If you had viewed Tuckers Video, starting at 1:27′ you would have learned that “suggesting that Biden is a “Dictator” crossed the line” To which Vindman agreed strongly. Therein lies Vindman’s Hypocracy. TO which I posted “𝐑𝐞𝐛𝐮𝐭𝐭𝐚𝐥: Re. Alexander Vindman ~ msnbc.com spokesman”,
submit in evidence of Vindman’s hypocrisy two (2) articles WHEREIN Vindman Claims: 𝐋𝐭. 𝐂𝐨𝐥. 𝐀𝐥𝐞𝐱𝐚𝐧𝐝𝐞𝐫 𝐕𝐢𝐧𝐝𝐦𝐚𝐧: 𝐓𝐫𝐮𝐦𝐩 ‘𝐚𝐬𝐩𝐢𝐫𝐞𝐬 𝐭𝐨 𝐛𝐞 𝐚 𝐝𝐢𝐜𝐭𝐚𝐭𝐨𝐫’ on April 24, 2023, in addition as proof of Vindman’s vindictiveness, his interview: 𝐅𝐫𝐞𝐞 𝐭𝐨 𝐬𝐩𝐞𝐚𝐤 𝐡𝐢𝐬 𝐦𝐢𝐧𝐝, 𝐕𝐢𝐧𝐝𝐦𝐚𝐧 𝐬𝐞𝐞𝐬 𝐓𝐫𝐮𝐦𝐩 𝐚𝐬 𝐏𝐮𝐭𝐢𝐧’𝐬 ‘𝐮𝐬𝐞𝐟𝐮𝐥 𝐢𝐝𝐢𝐨𝐭’ on Sept. 14, 2020. Both made prior to his claims made in the past week, of which Tucker commented upon.
NOW You & I have a problem Pal – GOT IT
It’s people like You that twist things up and make it unbearable for Others.
It sounds like you have anger management issues.
“NOW You & I have a problem Pal – GOT IT”
As I said, you have a problem.
Web Bars YOU”ER WRONG, and because you’re Wrong, You deserve Punishment.
Those are the Rules, Those are Your rules, and know I say So. I GOT IT, did you BOY
Yes, keeping classified documents at home as a trophy would absolutely get anyone else a prison sentence. Trump intentionally violated the law, and how he needs to go through the justice system as anyone else.
Sammy: You answered your own rhetorical question when you said “anyone else.” You see, the president of the United States in NOT anyone else but the president and for her or him there’s a specific law called the Presidential Records Act that defines the ststus of papers and documents retained by presidents after they leave office. They can keep everything, even classified couments, according to that act and no court can decide otherwise (according to JW vs NARA and Judge Amy Berman Jackson of the DC Circuit Court. To avoid a sure toss, the Biden folks used a hundred year old law called the Espionage Act that Turley says should probably never have been enacted in the first place. A special Act, that is, one designed for a special office or person, in this case the president of the United States takes precedence over a general statute like the Espoinage Act that you rightfully note would apply to “anyone else.”
First, many government documents — including at least some of the documents Trump kept — are subject to the Federal Records Act rather than the Presidential Records Act.
“They can keep everything, even classified couments, according to that act and no court can decide otherwise (according to JW vs NARA and Judge Amy Berman Jackson of the DC Circuit Court”
BS. Neither the PRA nor ABJ’s ruling say what you claim.
Except that the PRA does not say any of that. The term “personal records” is well defined, and “anything the President says” is not the definition.
§ 2202. Ownership of Presidential records
The United States shall reserve and retain complete ownership, possession, and control of Presidential records; and such records shall be administered in accordance with the provisions of this chapter.
https://www.archives.gov/about/laws/presidential-records.html
So what you are saying is that Trump obstructed an investigation into a non-crime, again…
This is getting tiresome. Stop launching non-predicated investigations, i.e., witch hunts, against the man and maybe he will stop obstructing. They are criminalizing his actions of not cooperating with their efforts to frame him.
A stand alone process crime should not stand. It is suspicious and smacks of corruption. I look at these process crimes like I look at police abuse cases where the only crime charged was resisting arrest or assault on an officer and no there is no underlying crime charged that resulting in the interaction in the first place. Very suspicious.
If Jack Smith is successful, Trump’s indictment will effectively become the basis for “Espionage Act 2.0” for many years to come. If they can redefine “dissent” as inciting insurrection, why not claim it’s espionage as well ? Besides, “espionage” sounds so much darker and sinister so I think that Smith will be reluctant to dismiss those counts, even if it makes the case more straightforward. Thank you, Jonathan, for an excellent article.
I have noticed people who make their living in the DC eco system, have stopped citing the law, and starting to fall in line with the official DC narrative. Parroting the DoJ talking points without comment. Pompeo was yesterday…he still needs the grift.
When a very well known executive retired, I attended his sending away party. Many of the leaders he worked with over the years said a few words at this event and if I could summarize their comments in one word it would be policy. Policy is what drives an organization and it is the backbone of smooth operating systems.
Regardless of how the media portrays a leader or what a person thinks about them personally should never be a factor. It comes down to policy and from policy what are the immediate, intermediate and long-range implications.
I will present one example. On 1 May 2020 President Trump signed an executive order 13920 in order to protect our power grid. It came to his attention that our grid is extremely vulnerable and that if only 9 Extra High Voltage transformers were shut down in the correct sequence, the entire U.S. grid would fail. Yes, nine. These transformers are made in China. Trump wanted to bring the manufacturing of these components back to our shores. In a long-range strategy, China cornered the market on certain key alloys and raw materials, processes, etc. that made the manufacture of these items very difficult to produce in the U.S.A. Therefore, they are now made in China. Before COVID, the lead time for one of these transformers was one year and now it is four. They are difficult to make, ship and transport. There was concern at the time that they are also vulnerable to cyber attacks. There are many more weaknesses and vulnerabilities in these systems. What is the policy of this administration?
When President Biden took office, he rescinded this order. Not only that, his administration is pushing forward with a war against natural gas and for the increased electrification of homes and transportation. At the same time, power stations are being taken off grid and more wind and solar are being built. They have their place but can never replace other stable systems. This sounds good on paper and in the Washington D.C. bubble, but the further this nation electrifies and the more existing power plants are regulated, the more vulnerable we become, especially when our new adversary has full control of these vulnerable systems. Without power, this society cannot exist. Chaos would occur within 24 hours and beyond.
What madness is this? A middle schooler could figure this out. This should be a very high priority.
Examine the policy. The former President who was working to reduce our vulnerability to attack from an enemy in more ways than one is being targeted for espionage while the current President, very likely compromised by the CCP and certainly beholden to many lobbyist and activists organizations who help get him elected is allowing our adversary to make the products that are vital to our national defense and our survival. The irony is so thick you can cut it with a knife.
Policy based on principle or policy based on external influence? This is the question.
E.M.
Great comment!
The Biden admin seems to be doing everything it can to make the US more vulnerable to our foes and even our frienemies.
All empires have a beginning and a end. Did not think I would see it in my lifetime but we are seeing it unfold before our very eyes.
You are correct. Many in America do not realize the deeply serious trouble the United States is in. Maybe more will take the time time to watch “How Communist China Could Imminently Cripple America’s Electric Grid: Tommy Waller ” that was on Epoch 6/15 with Jan Jekielek. Nine does not sound like a huge number, but all is needed to do destruction is 1 and if the nine were taken, this is total destruction and the enemy does not even have to lift a finger (should say send a warship or plane to do so)
Multiple substation attacks prompt hearing on grid security
https://justthenews.com/politics-policy/energy/multiple-substation-attacks-prompts-hearing-grid-security
“Chaos would occur within 24 hours and beyond.”
Which of course is the point. Out of chaos comes total control and absolute power. Just ask Soros.
“In contradiction to his public claims, Trump admits that he did not declassify the document and thus could not show it to two guests”
Actually, he admits that he did not declassify it and then says “Secret. This is secret information. Look, look at this.”
And if people want to have a better sense of what the 31 documents likely are, here’s a good discussion: https://www.lawfareblog.com/what-are-classified-documents-trump-indictment
The pictures in the indictment are clearly designed to drive home the gross mishandling of documents to the public. No one is seriously going to argue that storing documents in a ballroom or next to a commode are good retention practices.
Its a great visual if you are forced to justify DoJ corruption. But we are talking about less than 100 documents. Easily held is a single file. Those pictures are meant to fool the rubes into believing the DoJ is protecting us.
There is zero evidence any mishandling took place. Despite the fact the President has plenary power to declassify.
All I see is a bunch of boxes.
Having that said, if he wouldn’t have taken the documents or just returned them, There wouldn’t be a case to be answered to
Dirk he only did what Every President has done.
You are amount the huge crowd that does not realize Trump has violated no law. Just like there was never RUSSIA!. It is all a fabrication. And if you Dirk, challenge the govt, you too will be charged with crimes you did not commit.
What National Defense Information did Obama keep?
What National Defense Information did GW Bush keep?
What National Defense Information did Clinton keep?
What National Defense Information did Carter keep?
What National Defense Information did GHW Bush keep?
What National Defense Information did Reagan keep?
Where did Obama have his valet move boxes around to prevent them from being searched?
Where did GW Bush have his valet move boxes around to prevent them from being searched?
Where did Clinton have his valet move boxes around to prevent them from being searched?
Where did Carter have his valet move boxes around to prevent them from being searched?
Where did GHW Bush have his valet move boxes around to prevent them from being searched?
Where did Reagan have his valet move boxes around to prevent them from being searched?
If you believe “he only did what Every President has done,” you’re deluded.
No other administration was so craven as to raid an ex President’s home.
Obama in a letter to the NARA said he had his documents, including classified documents secured in the facility he had rented.
Nope, that’s not what he said. The facility is run by NARA, not by Obama. The contents are owned by NARA, not by Obama.
It is foolish to believe that if the documents had been returned, there would not have been a case. Some other excuse would have had to been invented. The goal is to prevent a Trump second term.
remember when prosecutors were quite Apolitical rather than DNC enforcers?
Reminder the DOJ and FBI spied on and overthrew the elected president of the USA!
We are a feudal land ruled by the DC Aristocracy
Today’s Democrats are the MOST dangerous thing to ever happen to America
Even the Democrats of the Civil War didn’t HATE America like todays Democrats do!
Today’s democrats TAKE money from China, Russia, Ukraine, etc
They import millions of illegals and PUSH drugs
They steal Trillions of Tax Revenue.
Read H.G Wells book “Outline of History”, which documents what happens when Machiavellians achieve centralized power…they destroy empires from within…this has been repeated for thousands of years!
The Constitution is suppose to prevent this…but EVERY Democrat Judge IGNORES the Constitution and uses the op-ed in the NYT and WAPO to determine their rulings!