Yesterday, Donald Trump pled not guilty to charges related to his storage of classified documents. Charges against Trump include obstructing justice, concealing documents from an investigation, lying, and violating §793 of the Espionage Act by retaining national defense information.
Defending Rights & Dissent has long advocated that high ranking officials be held criminally liable for misconduct, and condemned the two-track system of justice for those accused of releasing classified information. Whistleblowers and journalists who have exposed war crimes, civil liberties violations, and abuses of power have been jailed under or threatened with the Espionage Act, whereas those responsible for the crimes committed walk free. While those who defy official secrecy to expose abuses of power face serious criminal sanctions, those who have leaked classified information to advance official policy have walked away scott free. When General David Petraeus gave sensitive information to a biographer, he was treated far more leniently than whistleblowers who released information in the public interest.
If anyone else had engaged in the conduct Donald Trump is alleged to have engaged in, they would already have been arrested. Compared to the heavy handed searches and arrests of whistleblowers, Trump is continuing to receive clearly preferential treatment. Trump is hardly a victim here.
We also note our long standing opposition to the Espionage Act, a position we have held since the 1970s. The provision of the Espionage Act under which Trump has been indicted has been central to the prosecution of journalists’ sources and whistleblowers. To be clear, Trump is not someone who acted in the public interest nor did he have a noble purpose. He is extraordinarily different from the national security whistleblowers we have defended. Trump’s administration not only brought Espionage Act charges against whistleblowers Daniel Hale, Terry Albury, and Reality Winner, it also brought unprecedented Espionage Act charges against journalist Julian Assange. His CIA actively plotted to kidnap and toyed with the idea of killing the journalist. In spite of high profile campaigns calling for pardons for both Edward Snowden and Assange, Trump declined to grant them. Trump has referred to whistleblower Chelsea Manning as an “ungrateful traitor” and Snowden as a “spy who should be executed.” He made prosecuting those who give information to the media a chief priority of his administration. Trump went so far as to sign a law making the mishandling of classified information a felony (it had previously been a misdemeanor). Much of the government’s evidence to prove Donald Trump’s intent (that he had reasons to believe retaining the information might harm national security) appears likely to come from his own bombastic statements as President.
Nonetheless, while we believe there is a valid case for prosecuting Trump, we do not believe charges under an unreformed Espionage Act should ever be brought. It is unfortunate that Donald Trump has been charged under this deeply constitutionally suspect law. This is not because we believe Trump should be shielded from accountability or is somehow analogous to the whistleblowers, truth tellers, and journalists who have faced repression under the Espionage Act.
Decisions not to prosecute former presidents have deeply damaged our democracy. President Ford’s pardon of Richard Nixon, President George H.W. Bush’s decision to pardon Iran-Contra defendants to avoid having his own diary subpoenaed, and President Barack Obama’s decision to look forwards and not backwards when it came to the Bush administration’s myriad of war crimes, human rights abuses, and civil liberties violations continue to haunt our country.
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Want to hear more? Chip Gibbons appeared on Democracy Now! to disentangle support for presidential accountability from reliance on the constitutionally suspect Espionage Act. Listen here!
