As soon as it was revealed last week that the Espionage Act was among the statutes included in the search warrant targeting reams of classified documents allegedly kept in former president Donald Trump’s Florida residence, pundits — and everyone on Twitter — started wildly speculating, and in the process, spread a lot of misinformation about one of the country’s most controversial laws.
Commentators immediately leapt onto the inclusion of 18 U.S.C 793 (also known as part of the Espionage Act) in the list of statutes named in the warrant targeting Mar-a-Lago that led to the raid. For example, this tweet, claiming the citation of the law must mean the Department of Justice has evidence of outright espionage, was re-tweeted more than 10,000 times and is full of assertions about the law that are misleading or outright false.
There are countless other Twitter posts along the same lines. As everyone on Twitter was working themselves up into a frenzy over the idea that Trump was now probably involved in some sort of foreign spying operation, the Intercept’s great reporter Ken Klippenstein gently reminded everyone that the only thing the Espionage Act actually requires is for a person to retain “national defense information” (which often means, but is not exclusive to, “classified information”) and not give it back when asked to by the government.
Why is this fact-check relevant to us at Freedom of the Press Foundation? Well, as we have written many times, the Espionage Act is an incredibly broad law. No proof or probable cause of actual “espionage” is required to be investigated or charged under 18 U.S.C. 793. Critically, despite its name, the Espionage Act is not primarily used to go after spies, but whistleblowers and the sources of journalists.
The law has been increasingly wielded in recent years to stifle dissent and vital journalism that would not come to light without brave people coming forward to reporters at great risk to themselves. Whistleblowers who have exposed illegal surveillance, torture, extrajudicial drone strikes, civil liberties violations, even attempts by Russia to allegedly hack into our election infrastructure have been imprisoned under the law.
The very polarizing opinions about Trump have clouded an important debate about this draconian statute that should be reformed or repealed. Republican Senator Rand Paul was relentlessly mocked for tweeting, “The espionage act was abused from the beginning to jail dissenters of WWI. It is long past time to repeal this egregious affront to the 1st Amendment.”
Are Paul’s motives here cynical or opportunistic (or even hypocritical based on his previous remarks)? Sure, of course. But it doesn’t mean he’s wrong.
On the Espionage Act’s 100th-year anniversary we published a detailed, three-part history of the law and how it has been used for decades to imprison the sources of journalists who reveal classified information showing wrongdoing, abuse, or illegality. Even less known is how it has been wielded to threaten award-winning reporters with prosecution who exercise their First Amendment rights to publish those secrets.
Worse still, when sources or whistleblowers are charged under the statute they are prevented from telling their jury what their motive was for speaking with a journalist, why the material may have been misclassified, or that releasing it did not actually harm national security. All this essentially means that those charged under the statute have no legitimate defense at trial.
In fact, one of the administrations that has abused the Espionage Act the most is… Donald Trump’s. His Justice Department brought at least five Espionage Act prosecutions against the sources of journalists, according to our U.S. Press Freedom Tracker. None of the defendants were ever accused of “espionage” in the traditional sense – only that they handed over material to reporters or publishers who produced news stories about it.
The Justice Department under Trump also took the law a step farther than any administration before it and initiated a prosecution of a publisher of government secrets as well. Virtually every major civil liberties group in the world has repeatedly asked the Biden administration to drop the charges against WikiLeaks founder Julian Assange, given they could eventually criminalize a lot of national security journalism practiced at many of the nation’s most respected newspapers.
It’s true, as many have pointed out, that whistleblower Reality Winner received five years in jail for leaking a single classified document to a news organization. It’s incredibly important that Trump, or any ex-president, is treated the same as any other citizen. Double standards for powerful people are often prevalent, especially when it comes to retaining or leaking classified information.
The real travesty, however, is not that Trump isn’t already in handcuffs under the Espionage Act, but that Winner was sentenced to five years for a “crime” for which she never should have been in prison in the first place. (I’ve written extensively about the importance of Winner’s leak to the public interest, how overclassification is rampant, and how she was unable to tell a jury why she did what she did.)
To be clear, no one is arguing that Trump is a whistleblower or acting as a journalist. That’s preposterous. Other First Amendment scholars we respect have argued that in this particular case the law is not being abused. But the Espionage Act is pernicious, and we are very wary of any move to further legitimize its use. (By the way, if the Espionage Act was somehow repealed it wouldn’t make Trump’s legal difficulties around the raid magically go away. The Trump warrant cited multiple additional statutes of which he may very well be in violation.)
Just last month, we wrote about an important amendment, introduced by Democratic Rep. Rashida Tlaib, that would meaningfully reform the Espionage Act to make sure that whistleblowers are allowed to tell their story to a jury if the Justice Department attempts to prosecute them. If Republicans actually want to put their money where their mouths are, they should immediately support Tlaib’s amendment or similar bills. If not, we will know it’s all just posturing.