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 Charles Gregory in November 1917, when Congress enacted the Espionage Act, the very act now being used to prosecute former president Donald Trump.
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.