WASHINGTON — The Espionage Act, a World War I-era law once used to crack down on dissent, has finally become the government’s legal tool of choice against unauthorized spies and leakers. But now former President Donald Trump is facing questions about whether he broke the law after the FBI seized top-secret documents he had brought to his Mar-a-Lago residence in Florida.
In recent years, some on the left have criticized the law, saying it was used to prosecute people who leaked government secrets. Now Republicans are denouncing the act after the Justice Department referred to it in its search warrant to recover documents from Trump’s Palm Beach home, including some that were marked classified.
What is the Espionage Act and how was it first used?
Congress first passed the Espionage Act in 1917 at the urging of President Woodrow Wilson. In an attempt to quell dissent against US support for World War I, the law prohibited obtaining or disclosing information related to national defense if it could be used at the expense of the United States or for the benefit of any foreign nation. In 1918, a set of amendments prohibited speech deemed disloyal or abusive toward the United States.
During the war, for example, the producer of a movie, “The Spirit of ’76,” was prosecuted and sentenced to prison in 1918 because the government believed the movie undermined the British, a World War I ally. World, and therefore it was seditious. said Mark Zaid, a national security attorney.
“There was rampant abuse,” Zaid said. “There were tons of First Amendment violations. It didn’t take long for them to realize that it was ridiculous and unacceptable.”
Those sedition amendments were repealed in 1921, and the courts later invalidated convictions under those measures. Congress last changed the law in 1950, and since then the law has not been significantly revised.
Does the law make it a crime to reveal classified information?
No. The law makes it a crime to withhold or unauthorized release of information related to national defense that could harm the United States or help its enemies. It was enacted decades before the executive branch established the current national security secrets classification system.
Under normal circumstances, a document protected by the Espionage Act is almost certain to be classified. But because the two protection systems, executive branch classification and the Espionage Act, work in parallel, a document does not have to be classified to be protected by law.
Who has been prosecuted under the Espionage Act?
The law has been used to prosecute spies and leakers. Those accused of spying under the law include Julius and Ethel Rosenberg in the 1950s for allegedly giving nuclear secrets to the Soviet Union; Aldrich Ames, CIA officer, accused of revealing the identities of American informants to the Soviet Union in 1994; and Robert Hanssen, an FBI agent, who was sentenced to life in prison in 2002 after confessing to selling secrets to the Russians.
Prominent leak cases involving the act include that of Daniel Ellsberg, who leaked the Pentagon Papers by photocopying the secret history of the Vietnam War and giving it to The New York Times. He was initially charged with a felony under the Espionage Act, but the charges were later dropped.
Reality Winner, a former military contractor, was not so lucky. In 2018, she was sentenced to five years in prison for leaking a classified intelligence report on Russian interference in the 2016 election to The Intercept.
How has the law been applied in recent years?
The most high-profile recent allegations of violations of the Espionage Act have involved leakers, not spies. It’s not so much that the government is more focused on leaks of classified information, but that prosecutors have more tools at their disposal to make their case. With emails, text messages and other technology, the government can more easily trace a document and prove who leaked the information, Zaid said.
What does the act mean for Trump?
It’s unclear why Trump had classified documents at Mar-a-Lago. There is no evidence yet that he planned to release the material. However, mishandling sensitive documents and removing them from a secure facility is still prohibited, and may put national secrets at risk.
It can be difficult to determine who precisely brought the secret documents to Mar-a-Lago, who decided to store them there, and the extent of Trump’s direct involvement. It’s also possible that if there was no unauthorized disclosure of the documents and prosecutors find no criminal intent, the Justice Department could decide not to prosecute. That could make an investigation into why the documents were brought to Mar-a-Lago particularly crucial.
An important caveat: The Espionage Act includes a gross negligence standard, which means a prosecutor does not have to prove criminal intent. Still, legal experts say that for the government, the priority is likely to be retrieving classified and confidential documents, and making sure they are properly stored rather than sitting in a box at Mar-a-Lago. If the government believes it has claimed all the secret documents, prosecutors could decide not to pursue a legal case. But it is unclear how the investigation will unfold.
But what is clear, the experts said, is that regardless of Trump’s intent, the First Amendment is not at issue in this case, unlike in the leak cases.
“That’s not a free speech issue,” said Glenn Gerstell, a former general counsel at the National Security Agency. “There is no First Amendment right to remove national defense information from secure facilities and take it home.”
Has a president ever been accused of breaking the law?
No. But in 1918, Eugene Debs, a socialist presidential candidate, was sentenced to 10 years in prison for a speech criticizing the military draft. Still, three years later, Debs was running for president again, this time from prison.
Why are both Liberals and Conservatives clamoring to revise the Espionage Act?
Sen. Rand Paul, R-Ky., has cited the history of the Espionage Act to jail World War I dissidents in arguing for its repeal.
Alison Grinter Allen, Winner’s attorney, also argues that the law should be reviewed. She points out that her client was unable to present evidence to a jury about the content of the classified information she leaked or argue why the public had a right to know what she had disclosed.
“The main problem with the Espionage Law is that it is not really allowed to appeal to justice or the public interest,” he said. “That makes it really hard to defend yourself.”
But proponents of the law said such a change would undermine national security. The director of national intelligence has begun examining whether too much material is considered unnecessarily highly classified. Gerstell welcomed that effort, but said changing the law to allow people to argue that they can release information because they believe it’s in the public interest goes too far.
“If someone makes the wrong call, the wrong call, they’re too aggressive, our nation suffers as a whole,” he said. “That is not going to be a good result for us. And that’s not the right balance.”
© 2022 The New York Times Company