Will Trump’s Indictment Lead to Changes to the Espionage Act?

The majority of former President Donald Trump’s charges for mishandling classified documents stem from the Espionage Act, a World War I-era law that has often been used to silence dissent and go after whistleblowers. We speak with Chip Gibbons of Defending Rights & Dissent, who calls for reforming the Espionage Act. Regardless of Trump’s conduct, the Espionage Act is “basically unconstitutional” and should not be used as it is currently written, says Gibbons, and notes Trump himself used the Espionage Act to go after whistleblowers when he was in office.

TRANSCRIPT

This is a rush transcript. Copy may not be in its final form.

AMY GOODMAN: This is Democracy Now!, democracynow.org, The War and Peace Report. I’m Amy Goodman, with Juan González.

We continue to look at the arraignment of Donald Trump, who pleaded not guilty Tuesday to 37 federal counts, including 31 counts of violating the Espionage Act. Trump becomes the most high-profile person ever charged under the 1917 law.

While Trump was released without needing to post bail, many others charged under the Espionage Act have faced far different treatment under President Trump. For example, in 2017, U.S. intelligence contractor Reality Winner was arrested for leaking a single document about Russian interference in the 2016 U.S. elections. She was held without bail, ended up spending five years in prison. In 2019, former U.S. intelligence analyst Daniel Hale was arrested and held without bail for leaking documents about the secretive U.S. drone program. In 2021, he was sentenced to more than three years in prison. He remains locked up.

On Tuesday night, Donald Trump spoke out against the Espionage Act charges.

DONALD TRUMP: The Espionage Act has been used to go after traitors and spies. It has nothing to do with a former president legally keeping his own documents. As president, the law that applies to this case is not the Espionage Act, but, very simply, the Presidential Records Act, which is not even mentioned in this ridiculous 44-page indictment. Under the Presidential Records Act, which is civil, not criminal, I had every right to have these documents.

AMY GOODMAN: We’re joined now by Chip Gibbons, policy director of Defending Rights & Dissent, where he has advised multiple congressional offices on reforming the Espionage Act.

So, you have Donald Trump pleading not guilty to 37 charges, Chip, 31 of them related to the Espionage Act. Can you talk about the significance of this and the significance of him walking out of court, and compare it to other cases you’ve been involved with?

CHIP GIBBONS: 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 of 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.

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.

So, it’s an incredible moment in U.S. history that we had a president who is finally being held accountable under the Espionage Act, as opposed to sort of whistleblowers and journalists who expose the U.S. national security state. And while that is sort of a step away from the dual system of justice we’ve seen under the Espionage Act, I have to stress, I don’t think the Espionage Act, as drafted, is a legitimate tool. I don’t think it should be used to prosecute anyone, even someone as loathsome as Donald Trump. And Donald Trump is still getting a lot of leeway, right? He was given a chance to return documents, and he wasn’t charged for those documents, even though he broke the letter of the law, even though he took them when he shouldn’t have had them. And while a Biden or a Pence might get away with that, a Daniel Hale or a Thomas Drake would not have. So there’s always been this dual-track system under the Espionage Act: one set of rules for the powerful, one set of rules for those who support and promote U.S. foreign policy and the U.S. national security state, and one set of rules for those public servants whose conscience tells them that the principles, in many cases, that led them to government in the first place are being violated by the government, who are subjected to horrible treatment.

JUAN GONZÁLEZ: Well, Chip Gibbons, but precisely because of the unusual situation here, aren’t you, in essence, saying — and I would tend to agree with you — that the use of the Espionage Act in this particular case does smack, and will be seen by many Trump supporters, and even those who are not necessarily his supporters but who don’t like government overreach — to see this as a political prosecution? What do you say about Trump’s claim that he should have been more properly prosecuted, if he was going to be prosecuted at all, under the Presidential Records Act?

CHIP GIBBONS: The Presidential Records Act is a red herring. It doesn’t help Trump at all, and it is a civil statute. Trump committed numerous crimes in line — if the indictment is true — and as a civil libertarian, I have to stress that, you know, he’s innocent until proven guilty. But if the indictment is true, I mean, he did conceal information from investigators. He was given a chance to give documents back. He didn’t — he gave some of them back; he hid others. And he just sort of kept thumbing his nose at the government.

And I would note, there other charges that could be brought against Trump besides the Espionage Act. Under Donald Trump’s presidency, mishandling classified information, which I think putting all those documents in a bathroom is clearly mishandling classified information, was moved from a misdemeanor to a felony. There’s other statutes about theft of government property. I mean, under the Presidential Records Act, those documents belong to we the people, not Donald Trump, and he took them out of the White House, and he’s very brazen about that. So, I don’t think the choices are letting Trump go scot-free again or bringing the Espionage Act charges against him, given how problematic they are.

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, 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.

JUAN GONZÁLEZ: And how would you see the necessary reforms to the Espionage Act to be able to protect future whistleblowers?

CHIP GIBBONS: The Espionage Act absolutely needs to be reformed. The biggest thing is that right now you don’t have to prove someone had the specific intent to harm U.S. national security or aid a foreign power. You just have to have a reason to believe your actions would do that. And while that sounds like a high standard, in the whistleblower cases, the government basically says, “Well, you took classification training. You knew that if you release classified information, you had reason to believe the sky would fall.” And I believe the U.S. government’s position is, basically, if it says the information is secret, you have a reason to believe that — you know, even though they lie constantly, you have a reason to believe that it will harm national security.

So, making the government prove actual espionage, allowing whistleblowers or anyone to testify about the purpose of their leaks — right? — because right now juries are barred from hearing what was leaked or why it was leaked. And you can see why the government wants that, right? If you’re Edward Snowden and you tell the jury, “I saw this illegal surveillance. I leaked it. The journalists got Pulitzer Prizes. The Congress changed the law. The court ruled the program unconstitutional — or, I’m sorry, illegal and likely unconstitutional,” the jury is going to have some questions about what the government is doing, as well as creating an affirmative public interest defense, right? The specific intent requirement to prove harm to national security is a backdoor public interest defense, but I also think you need a frontdoor public interest defense.

And you also need to limit the Espionage Act so it only applies to those who have a duty to protect classified information. You know, Donald Trump has a duty to protect classified information. If I read in The Washington Post or The New York Times about the Pentagon Papers, I don’t have a duty to keep that secret. The journalists who printed it don’t have a duty to keep it secret.

And one thing I would also add is that, you know, whistleblowers have been prohibited from challenging the classification of documents, on the basis that only the executive branch can determine whether something is classified. And even if a document is illegally classified, because you can’t classify a document to conceal misconduct, it doesn’t matter, because the Espionage Act, which creates the classification system, mentions or covers both properly and improperly classified information.

And just going back, I want to point out that when Daniel Hale was facing trial, the prosecution put a motion to the judge asking that Daniel Hale be barred from mentioning his good motives. “Good motives” are the prosecutor’s words, not mine, although I think Daniel Hale had impeccable motives. You know, not that — he couldn’t bring up the classification, and he couldn’t —

AMY GOODMAN: Chip, we have 10 seconds.

CHIP GIBBONS: — bring up the inconsistency in leaks. Sure, yes.

AMY GOODMAN: Chip, we want to thank you so much for being with us. And people can go to our website to see our interviews with whistleblowers, or about them, if they’re imprisoned, from Jeffrey Sterling to John Kiriakou, from Reality Winner to Daniel Hale to Edward Snowden to Julian Assange and others. Chip Gibbons is policy director of Defending Rights & Dissent, where he has advised multiple congressional offices on reforming the Espionage Act.

Coming up, we speak with the sister of a jailed Saudi dissident about how Saudi Arabia is using its oil fortune to launder its image by taking over the world of professional golf with the merger of LIV Golf and the PGA Tour. Back in 30 seconds.

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AMY GOODMAN: Ben Nichols, “The Last Pale Light In the West,” inspired by the work of the late author Cormac McCarthy, who has died at the age of 89 in Santa Fe, New Mexico. He once wrote, “Keep a little fire burning; however small, however hidden.”