It's front-page news that FBI agents raided former Donald Trump's Mar-a-Lago estate in connection with an investigation into the potential mishandling of classified documents. Even more jaw-dropping, the unsealed search warrant and partially redacted supporting affidavit show that Trump under investigation for removal or destruction of records, obstruction of justice and potential violations of the Espionage Act, a draconian law that criminalizes the unauthorized retention or disclosure of national defense information (whether classified or not) if it could be used to harm the United States or benefit a foreign nation.
What truly blew my mind, however, is what Trump attorney Alina Habba told Newsmax: "In a hundred years, they have never used this statute. It's antiquated, it's old, it doesn't exist for any purpose other than true espionage."
Habba is either lying or alarmingly uninformed. I have spent the past 12 years defending former national security employees investigated or charged under the Espionage Act for alleged media leaks about some of the most secret and controversial government programs of this century. (My article about this for Salon was published 10 years ago in April.) That list includes Edward Snowden, Thomas Drake and William Binney, all of whom disclosed evidence regarding NSA's mass domestic surveillance programs. It also includes John Kiriakou, who confirmed the CIA's torture regime and use of waterboarding during the "war on terror." Most recently, it includes Daniel Hale, who revealed key information about the targeted drone assassination program. As a result of their disclosures, these dark ops have been subjected to a modicum of congressional oversight and judicial review. Many were eventually declared illegal, unconstitutional or both. They were scaled back or scrapped altogether.
In Trump's first year in office, probes of government leaks increased by 800%, according to the Justice Department. (Before that, there had been about a dozen such prosecutions in our nation's entire history.) There's an undeniable sense of schadenfreude and historical irony at work here, in that Trump is now under threat from the same draconian law he wielded against FBI whistleblower Terry Albury (who revealed surveillance of journalists and marginalized communities), Air Force veteran Reality Winner (who disclosed Russia's attempts at election interference), and the aforementioned Daniel Hale, a veteran of the Afghanistan war (who exposed inaccurate targeting of drone strikes and under-reported civilian casualties.)
Despite Trump's hypocrisy on leaks and his attorney's blatantly false claim about the Espionage Act, deploying it to indict Trump would legitimize a vague, archaic and highly problematic law that the government has used almost exclusively to chill the free press and bludgeon public servants who dissent against government overreach. It has rarely been used to go after spies, as its name implies, but rather whistleblowers, sources and journalists. Pretrial proceedings in these cases transpire largely in secret due to the Classified Information Procedures Act, which permits the government to present information ex parte (without the other side present) and in camera (privately to the judge) to determine whether certain evidence is discoverable or admissible at trial.
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Moreover, the Espionage Act is a strict liability law, meaning that a defendant's intent is irrelevant. It makes no difference whether someone discloses closely-held information to a hostile foreign nation for profit, or leaks it to the press because they believe the public has the right to know about government ineptitude and illegality. Finally, there is no First Amendment defense or "public interest defense" for those charged under the Espionage Act, meaning they cannot assert that public accountability is served by the disclosure.
Trump didn't have FBI agents banging down his front door before breakfast, as some whistleblowers have. He was not raided while his grandchildren were home, or pulled naked from his shower at gunpoint.
Regardless of how Trump attempts to cast himself in his carousel of explanations, he is hardly a victim. Despite being raided under such a flawed statute, Trump has already received many privileges and courtesies that are not afforded to whistleblowers prosecuted under the Espionage Act. Trump and his lawyers were given months to negotiate the return of the documents by "less intrusive" methods prior to the FBI raid. Whistleblowers have had FBI agents banging down their front doors before breakfast with no advance warning, let alone months of "less intrusive" negotiations. Trump was not raided while he or his grandchildren were home. He was not pulled naked from his shower at gunpoint. The mainstream media was not tipped off ahead of time. His lawyer was even present for the search.
This points to a continued two-tiered system of justice. Current or former high-level officials — for example, retired Gen. David Petreaus and former Secretary of Defense Leon Panetta — are treated with kid gloves, and receive minor slaps on the wrist and no jail time for disclosing classified information for petty reasons. (In Petraeus' case, to impress his girlfriend; in Panetta's, to make a Hollywood film.) By contrast, the government has routinely sought decades in prison for whistleblowers accused of giving information to the press in order to inform the public and put the lie to government disinformation and cover-ups.
If the end goal is to bring transparency, accountability and the rule of law to Trump's conduct, we should not be using the Espionage Act, an opaque, inflexible and grossly politicized statute which now serves no legitimate ends. There is a legal maxim that hard cases make bad law — but great cases can also make bad law.