Donald Trump’s administration loved the Espionage Act

And contrary to Trump's bombast, they didn't use it on spies and traitors, but whistleblowers, journalists, and journalists' sources

Yesterday, I was invited on Democracy Now! to discuss the Espionage Act, how it has been used as a tool of repression against whistleblowers and journalists, and what we should therefore make of the Espionage Act charges in Trump’s indictment. The full video is embedded above and a complete transcript can be found here.

Talking about Trump and the Espionage Act can prove challenging. Although Trump is deeply corrupt, the Espionage Act has historically been a tool of political repression. In recent years, it has been used to threaten national security reporting. Yet, while the Espionage Act may be an illegitimate law Donald Trump is not a whistleblower. It would be reprehensible to compare his motivations and actions to the selfless people who risked everything to reveal government abuses of power.

How then we should understand this moment? I think one way is to focus on how the Trump Administration itself abused the Espionage Act. When Amy Goodman asked me what the significance of this moment was, I answered

Well, it’s very significant, because here we have a man who, when he was president, his administration presided over five different Espionage Act prosecutions. Trump, in that clip you played, said the Espionage Act applies to traitors and spies. Not one of those prosecutions was of a traitor or a spy. They are of Reality Winner, a whistleblower. They were Daniel Hale, a whistleblower who gave information about the drone program to the public because his conscience was so shocked by what — by the civilian casualties in it. You had Terry Albury, a FBI agent who was disturbed by the domestic war on terror and the surveillance of the Muslim community and the evisceration of the Bill of Rights. You had Joshua Schulte, who was accused and convicted of giving information to WikiLeaks, but he denies it was him. And then you have Julian Assange, the very first time in U.S. history a journalist has been indicted under the Espionage Act. And all of the charges against Assange pertain to 2010 to 2011 revelations about U.S. war crimes in Iraq and Afghanistan, the U.S. policies at Guantánamo, and these really awful, corrupt, backroom deals that the State Department was involved in. So, Donald Trump’s administration loved the Espionage Act. They didn’t use it against traitors or spies; they used it against whistleblowers, journalists and people accused of giving information to the media.

I also summarized how the overly broad nature of the Espionage Act has allowed it be selectively enforced and become a tool of viewpoint discrimination.

So, I think that’s pretty significant in and of itself, particularly when you consider there’s always been this dual-track system of justice under the Espionage Act. Prior to the Trump case, I’ve always argued — and I think the Trump case complicates this — I’ve always argued that Espionage Act prosecutions are inherently political prosecutions, right? If I’m in Barack Obama or George Bush’s or Donald Trump’s inner circle, and I go to the newspaper and I feed them classified information to promote the drone program, promote the investigation into Assange, or I go talk to Hollywood filmmakers to give them information so they can make a film whitewashing torture, I’m not going to be prosecuted. And the biggest leaker of U.S. government secrets is the U.S. government. Everyone in Washington knows that. But if I go and I’m a soldier in Afghanistan and I’m horrified — I’m horrified by the civilian casualties in the drone program, and I watch Barack Obama on TV lie about how protective of human rights this international assassination program is, or I’m in Iraq and I’m horrified by the dehumanization of the Iraqi people and the violence inherent in that sort of neocolonial occupation, and I go to the media with that information, they’re going to prosecute me.

So, up until Trump, the Espionage Act has always been used as a sort of viewpoint discrimination-based law, because it’s an extremely broad law, right? I mean, under the letter of the Espionage Act, if I read in The Washington Post that the CIA thought that Ukraine might bomb the Nord Stream pipeline, and I tweet that, I text that, I just talk about it to a barista, I’ve violated the Espionage Act, right? Your previous guest was mentioning the difference between Biden, Pence’s and Trump’s conduct, and I think that’s absolutely correct, but under the breadth of the Espionage Act, you know, Pence and Biden did violate it, just like Trump did violate it for those documents he returned. But because it’s such a broad, basically unconstitutional law, it’s applied with a lot of limitations put on it.

I also shared my thoughts on claims Donald Trump is a victim of the deep state.

And I do worry that some of the use of the Espionage Act, given that it’s historically a law of political repression, will sort of embolden Trump’s claims that he is being victimized by the deep state. But I really want to point out how nonsensical those claims are. It’s true that Trump does not enjoy the warm relations with the national security establishment that a Barack Obama or a Dick Cheney does. But let’s remember, he ran for president the first time calling for spying on mosques, something worse than torture, and murdering the families of suspected terrorists and bombing things. He escalated U.S. air wars in an unprecedented way. He escalated regime change operations against Venezuela and Iran. He almost started a war with Iran by assassinating an Iranian general in Iraq, a sovereign country where he had been invited. And he increased the sanctions on Cuba. He increased the drone wars. And he was the one who first sent lethal aid to Ukraine. So, Donald Trump has very much, in a lot of ways, been a deep state president, even though he does not enjoy the sort of warm personal relations with the U.S. national security establishment, which is not at all based in policy, since his policies have been, you know, some of the worst types of national security, military-industrial complex [policies], including these record-breaking — although Biden has now broken his record — defense budgets, aimed at great power competition with China and Russia. So he’s not a victim of the deep state. He’s a victim of his own hubris and, quite frankly, foolishness.

I also had thoughts on how to reform the Espionage Act and shared additional history on how it’s been used. I highly recommend checking out the whole interview.