Barone: The Espionage Act of 1917 Once Again Rears Its Ugly Head

By Michael Barone

When federal agents removed top-secret documents from former President Donald Trump’s Mar-a-Lago residence last week, they carried with them a search warrant citing possible violations of the Espionage Act.

Ah, the Espionage Act! How that must have sounded comfortingly confirmatory to those leftists who still believe, despite the total lack of evidence, that Trump was elected and governed in collusion with Vladimir Putin’s Russia. These reports surely have some folks gleefully contemplating the prospect of the 45th president being consigned to the 10 years in the slammer that is the maximum penalty for violations of the Espionage Act.

But as the left-wing Substacker Matt Taibbi pointed out, “Anyone thrilled at the prospect of trying to prosecute a former president under the Espionage Act has blacked out the recent history of this law.” It’s a history of liberal Democrats invoking a notoriously overbroad statute to curb freedom of the press and penalize criticism of government policy.

The Espionage Act of 1917 passed two months after the United States, with 56 dissenting votes, had declared war against Germany. President Woodrow Wilson and Congress were responding, as former Sen. Daniel Patrick Moynihan (D-NY) explained in his 1998 book Secrecy, to pre-1917 sabotage. In July 1916, German agents blew up the Black Tom munitions dump in New York harbor, with an explosion loud enough to be heard in Connecticut and Maryland.

The Espionage Act was passed with bipartisan support and was supplemented by a Sedition Act banning “abusive language.” This was used to prosecute and jail socialist presidential candidate Eugene Debs, who had received some 900,000 votes in 1912. Thankfully, a Republican Congress allowed the Sedition Act to expire, and President Warren Harding, a Republican and a journalist, commuted Debs’ sentence and invited him to the White House.

The Espionage Act was not used much in the century after Wilson because the government classifies so much material, including widely disseminated newspaper articles, that just about anyone could be targeted.

But recently, there have been exceptions. In 2013, the Obama Justice Department used the Espionage Act to justify wiretapping trunk lines and 30 separate Associated Press phones. It snooped on Fox News reporter James Rosen’s phones and named him as a “co-conspirator” in an Espionage Act leak case.

The Obama administration, wrote former New York Times reporter James Risen in December 2016, “prosecuted nine cases involving whistleblowers and leakers, compared with only three by all previous administrations combined.'”

The overbreadth of the Espionage Act makes this easy. The law’s Section 793(d) says that “a person lawfully in possession of information that the government has classified as secret”—and the government notoriously overclassifies material, including editions of the New York Times—”who turns it over to someone not lawfully entitled to possess it has committed a crime.” Espionage!

A further section, 793(g), is a conspiracy count that says that anyone who conspires to help a source hand over such material has committed the same crime. In other words, a lot of journalism could be prosecuted as a felony—and so could a lot of conduct of former government officials, even presidents. This gives government prosecutors a license to target and jail political opponents, as Wilson targeted and jailed Debs.

In the century after Wilson, most administrations resisted this temptation. When President Franklin D. Roosevelt, who had served in the Wilson administration, was advised days after Pearl Harbor to prosecute the Chicago Tribune for an article implying that the U.S. had broken Japanese codes, he brushed the idea aside.

The Obama administration had a different approach, however. And the Mar-a-Lago warrant suggests that the Biden administration does as well.

The Obama FBI, as we now know, sent a lawyer to lie to the Foreign Intelligence Surveillance Court to obtain a warrant to spy on the Trump campaign. Now, President Joe Biden seems to be using the ludicrously overbroad Espionage Act to suggest to the credulous Left that Trump stashed nuclear secrets in Mar-a-Lago to be turned over to his friends in Russia.

In his account of the Espionage Act of 1917, Moynihan wrote, “Gradually, over time, American government has become careful about liberties.” That now needs a rewrite.

Suddenly, in what we are told are the moderate, norm-observing Obama and Biden administrations, U.S. government has become much more cavalier, not more careful, about liberties. The arc of justice has bent backward, toward the days when Wilson jailed Debs.

Michael Barone is a senior political analyst for the Washington Examiner, resident fellow at the American Enterprise Institute and longtime co-author of The Almanac of American Politics.

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