The Espionage Act Looks for its Next Chapter

By Rafael Hoffman

Donald Trump is no stranger to legal troubles.

A lifetime in real estate primed him for the constant litigation that follows most high-rolling deal makers. Mr. Trump’s ascension to politics set off a competition among federal and state justice officials searching for legal ways to dog his presidency.

A diverse bevy of ongoing suits and investigations has yet to stick to him or impede Mr. Trump’s hopes to return to the White House. Yet, the one that could potentially pose the greatest challenge is the Department of Justice’s indictment relating to the former President’s withholding of sensitive national security documents from the National Archives. The charges center on this: Allegedly, he took the documents with him illegally when he left the White House, stored them in an insecure manner, showed them to unauthorized persons, and obfuscated when asked to return them.

Thirty-one of the 37 counts Mr. Trump now faces fall under the Espionage Act of 1917. Its name has set off no shortage of defenses and explainers addressing the fact that no one has accused him of spying.

In varying forms, the law played a significant role in the last century of American history, serving as a key protection against anti-American speech and conspiracies in the early years of its enactment, Soviet spies during the Cold War, and in recent decades to crack down on government leakers.

Mr. Trump’s case shined a spotlight on the Espionage Act, its history and legal doctrine, as well as how its application might evolve in its first intersection with the laws governing a president of the United States.

Anarchists Meet the Law

The Espionage Act was largely the brainchild of President Woodrow Wilson, who in 1915, partially in response to anarchist activity, asked Congress for laws that would give government tools to punish those “who have poured the poison of disloyalty into the very arteries of our national life.”

The idea did not gain enough support for passage until America entered World War I in 1917. Months after Congress’ declaration, the Espionage Act was passed, a sweeping piece of legislation chiefly aimed at spies and anti-government activity amid the war.

“Ironically, there was no criminal law to prosecute espionage before World War I,” said William Banks, professor emeritus at Syracuse University’s law school. “There were laws that were used to punish spies and theft of government material, but this provided a specific criminal prohibition.”

The law went beyond espionage, criminalizing a long list of potentially dangerous handlings of government secrets or sharing them with unauthorized people.

Another goal was to use it as a tool against anti-war rhetoric and campaigns against the draft championed by leftist groups. One of its provisions authorized the Postmaster General to stop delivery of anti-government material, which in the law’s early years was used against a long list of radical publications. These broad powers were part of an amendment to the Espionage Act that became known as the Sedition Act, passed in 1918.

One of the first and highest-profile people convicted under this law was Socialist Party leader Eugene Victor Debs. He served less than three years of his 10-year sentence for a speech that “obstructed” military recruitment before being pardoned by President Warren G. Harding. Debs was on the ballot for president in the 1920 election while in prison.

The success of the Bolshevik Revolution in Russia set off a wave of radical activity around the world, including in the United States, and concern abounded that communist and anarchist elements put the country at risk. A set of bombings in 1919 targeting dozens of government officials, carried out by Italian anarchists, seemed to confirm these fears. The attacks set off what leftists later termed the first “Red Scare” as America looked to rid itself of revolutionary threats.

Using the Sedition Act Amendments as his main charge, Attorney General Mitchell Palmer ordered the FBI to carry out a series of raids and arrests against anarchists and other far-left groups with the goal of deporting their members, many of whom were Jewish and Italian immigrants. Prominent radical anarchists Emma Goldman and Alexander Berkman were among those sent to Russia aboard a ship that became known as the Soviet Ark. Both became active supporters of the Bolshevik Revolution and part of a circle of emigré intellectuals in Moscow, but eventually became disillusioned with the Soviet Union and moved to western Europe, where they continued to promote radical causes.

The constitutionality of the Act’s restrictions on freedom of speech was challenged by Charles Schenck, a socialist arrested for an anti-draft campaign. The Supreme Court ruled against him in an opinion where Chief Justice Oliver Wendell Holmes famously wrote that free speech is not protected where it presents a “clear and present danger.”

As fear of revolution and communist infiltration faded, public opinion turned against the Sedition Amendments. President Wilson pardoned some 200 people convicted under the amendment, and in 1921 it was repealed by Congress, leaving only the main body of the Espionage Act as law.

Plugging Leaks

After the first few years of its enactment, the Espionage Act was rarely used for decades afterward. During World War II and the Cold War, its statutes were used to prosecute several spies who divulged secrets to the Axis powers and, afterward, to the Soviets.

Julius and Ethel Rosenberg were charged under the Act when evidence emerged that they had been working for years as Soviet spies passing, among other information, documents that helped the USSR develop nuclear weapons faster.

In recent decades, however, the most prominent Espionage Act cases have not involved spies, but leakers — people with access to government secrets who, out of conviction or a desire for fame or profit, share them with the public.

This era began with the 1971 controversy over what came to be known as the Pentagon Papers, a set of documents regarding the U.S. government’s conduct of the Vietnam War, illegally copied and shared with The New York Times and Washington Post by defense analyst Daniel Ellsberg. The papers revealed over a decade of misleading the public over the conflict, most egregiously by President Lyndon Johnson. Fearing the document’s publication would erode public confidence in government, the Nixon administration sued to prevent the newspapers from running stories based on the information, but its effort was shot down by the Supreme Court.

Ellsberg was charged under the Espionage Act. As his case and the broader Pentagon Papers story swirled in American public debate, left-wing civil libertarians began their long crusade against the Act, claiming that it gave the government vague and unconstitutional powers to restrict freedom of speech and of the press.

Ellsberg, who recently died at age 92, likely would have been convicted under the Act’s statutes, but his case was dismissed due to irregularities in the government’s prosecution against him.

Professor Banks said that the Pentagon Papers had a deep effect on American society but had no impact on the jurisprudence of the Espionage Act.

“We Americans learned from Daniel Ellsberg not to trust the government to tell us the truth about what they were doing,” he said. “Kennedy, Johnson, and Nixon had all lied to us and it put a healthy cynicism into people. … But since the Ellsberg case was never prosecuted, it didn’t do anything to the law.”

Starting during the Obama administration, the Espionage Act’s use as a tool to prosecute leakers picked up steam. It is debatable, however, if that was due to administration policy or a spike in leaks. The law was used to charge Bradley Manning, Edward Snowden, and Julian Assange. A few months ago, Jake Teixeira was charged with violating it with his leaks of information about the Ukraine war.

Some of the leakers charged proclaimed their innocence, claiming their intent was not to harm the United States. That is what attorneys for John Kiriakou claimed when the former CIA agent and Democratic Senate committee staffer leaked information about interrogation techniques used with al-Qaida terrorists. Yet courts rejected his defense, and in 2012 he was sentenced to 30 months in prison.

“The court said that intention to cause harm is not the standard; the question is, did you intend to disseminate?” said national security attorney Bradley Moss.

The Act continued to receive derision from many left-leaning legal scholars, saying it is a poor tool to use against leakers. A 2021 article in a legal journal ran under the title, “A House Built on Sand: The Constitutional Infirmity of Espionage Act Prosecutions for Leaking to the Press.”

“You have to take into account the political environment to see which leakers they go after, right-wing or left-wing ones; it shifts all the time,” said Professor Banks.

Crimes and Misdemeanors

Even Mr. Trump’s harshest critics have not accused him of making any of the documents in his possession public or of sharing them with a foreign power or individual with nefarious intent. Nor does the case against him accuse him of doing any of those acts.

The key section of the Act under which the former President was charged relates to anyone in possession of “information relating to the national defense” who either shares that information with an unauthorized party or who “willfully retains the same and fails to deliver it to the officer or employee of the United States entitled to receive it.”

Mr. Moss, who has advocated for various forms of legal action against Mr. Trump dating back to investigations into Russia collusion, said that the former President’s retention of the documents violates the law.

“The case law clarifies that there is no intent requirement. It’s not necessary for an individual to intend to harm the U.S., only to retain the records and to be aware that their exposure could cause harm,” he said.

A good deal of the discussion around the Mar-a-Lago documents focused on a president’s ability to declassify documents. However, the law makes no mention of classification, referring rather to information that “could be used to the injury of the United States or to the advantage of any foreign nation.” Whether the documents were declassified or not is likely less important than the sensitivity of their content.

“It’s a misconception that it applies to classified information; it covers anything that has to do with national defense,” said Professor Banks.

There are a few recent cases similar to Mr. Trump’s. An article in The Washington Post by Yale Law Professor Stephan Carter pointed to the 2012 prosecution against James Hitselberger, who worked as a translator for the military and hoarded documents for his own use and interest. He was initially charged under the Espionage Act, but those charges were dropped after he agreed to plead guilty to a misdemeanor relating to mishandling classified information, Section 1924.

The section of the law Mr. Hitselberger pleaded guilty to, Professor Carter wrote, was specifically designed to deal with individuals who illegally retain sensitive documents without malicious intent. Several high-profile government officials caught with defense documents wrongly in their possession got away with fines and no jail time by pleading guilty to a violation of Section 1924, including former CIA Director John Deutch and Clinton administration National Security Advisor Sandy Berger.

Professor Carter’s piece also notes that Espionage case law generally holds that violations must “not be prompted by an honest mistake as to one’s duties but prompted by some personal or underhanded motive.”

Unprecedented

As Mr. Trump is the first president charged under the Espionage Act, an unknown is how the law will interact with another one crafted exclusively for occupants of the White House: the Presidential Records Act (PRA).

The PRA became law in 1978 as part of the fallout of the Watergate scandal. Most of its text would seem to work against Mr. Trump’s position, as its focus was to institute that documents of a presidential administration belong to the federal government and are not personal property. As such, presidents are required to turn them over to the National Archives at the end of their term.

Yet, the PRA allows former presidents access to their records and for negotiations to go on with the Archives about the status of documents. If Mr. Trump’s case is fully litigated, the interaction between the Espionage Act and the PRA will chart new territory.

“We don’t know the answer because [the PRA and the Espionage Act] have never been matched up in this way,” said Professor Banks. “The general principle is to read the two laws in harmony. The Espionage Act predates the PRA, and it’s inconsistent with it in some ways that might modify application.”

Mr. Moss was dismissive of the idea that the PRA should alter Espionage Act charges, saying it has “nothing to do with criminal authority.” Mr. Trump’s best defense, he said, would be for attorneys to argue in pretrial proceedings that the evidence “should not have been permitted” on grounds that it was improperly gathered.

“If the evidence is not permissible, that would cripple the government’s case,” he said. “Another part of the argument regarding permissibility would be to show there was something improper about the warrant.”

Another strategy commonly used in Espionage Act cases is for defendants to claim they need to enter the classified documents as evidence in order to prove their innocence, an approach termed “gray mailing.”

“He says, ‘Not only do I need to see every bit of the secret information used against me, but I’m going to expose it all in open court,’” said Professor Banks. “That puts the government’s feet to the fire, having to determine if they’d rather let these things out of the bag or dismiss those parts of the charges. … It sets up a game where the judge and prosecutor try to come up with substitutes like summaries and paraphrasing.”

Despite over a century of Espionage Act case law, Professor Banks said that the outcome of the Justice Department’s charges against the former President is hard to determine.

“In the United States, this is unprecedented, but almost everything that has to do with Trump in the last seven years is unprecedented.”