When news broke last week that the FBI was searching former president Donald Trump’s Mar-a-Lago residence for classified records, it registered as a shock for many in Washington. The underlying allegations laid out by the Department of Justice (DOJ) are serious in and of themselves, but the real shock was that, for once, a powerful executive branch official wasn’t given a free pass while abusing the classification system.
The DOJ has long used powerful laws like the Espionage Act to target our most vulnerable whistleblowers and truth-tellers, and the ongoing records dispute with a former president is an almost unheard-of course correction. However, given the department’s history, we should be deeply concerned about any failure to hold Trump accountable for violations of the law precisely because he is the former president.
By every measure, if the allegations being investigated by the DOJ are true, Trump would be an ideal candidate for prosecution for violating the Espionage Act.
While his defenders attempt to obfuscate by saying the former president has ultimate classification authority, they neglect to mention that information does not need to be classified to be considered national defense information under the Espionage Act. In fact, all that matters is the current executive branch interpretation of protected information.
It also doesn’t help Trump that the National Archives and the DOJ spent over a year attempting, unsuccessfully, to retrieve classified records from Mar-a-Lago (which might explain why the search warrant indicates Trump was being investigated for obstruction of justice). In fact, there is a precedent of the DOJ’s prosecuting executive branch employees for mishandling highly classified NSA hacking tools that were later published online.
But we live in the United States, where the DOJ has two systems of punishment.
The Justice Department is right to investigate Trump under the Espionage Act, but the government must accompany this course-correction with much-needed reforms to protect the whistleblowers who are most vulnerable to prosecution under the act.
Beginning after 9/11, but expanding notably under the Obama administration, the Department of Justice has waged an aggressive campaign to bring Espionage Act charges against truth-tellers.
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In 2010, for example, it brought charges against Thomas Drake, a high-ranking NSA official who unsuccessfully attempted to raise concerns to Congress and his inspector general about a massive, expensive, and faulty post-9/11 information collection program. The DOJ ultimately charged Drake with the unauthorized possession of national defense information, some of which was unclassified at the time.
The Obama administration also famously brought Espionage Act charges against Chelsea Manning for leaks that showed, among other things, that the US military killed two Reuters journalists. Under President Joe Biden, the DOJ still has open Espionage Act charges against Edward Snowden for revealing the NSA’s vast, warrantless, and unconstitutional collection of information on the people of the United States.
While the DOJ has wielded the Espionage Act against truth-tellers for decades, Trump is by no means the first executive branch official to intentionally retain classified information or release it without authorization. Nor would he be the first to skate free from serious consequences for the intentional mishandling of national defense information.
In 2005, Sandy Berger, a former national security adviser to President Bill Clinton, pleaded guilty to the unauthorized removal of classified information. Berger was given two years of probation and a fine. A decade later, a former director of the CIA, David Petraeus, was also sentenced to two years of probation for leaking top secret and classified information to his mistress. However, some former CIA directors weren’t even charged with leaking classified information, such as when Leon Panetta gave information to Hollywood filmmakers during the filming of Zero Dark Thirty. It remains unclear if the current DOJ will continue this pattern.
By contrast, Chelsea Manning was sentenced to 35 years in prison for violations of the Espionage Act, despite the clear public interest in her disclosures. (Obama later reduced Manning’s sentence to about seven years.) Simply put, the executive branch has very broad latitude to put its thumb on the scale when determining which prosecutions it brings.
Based on all available information, the Espionage Act may be an appropriate tool for investigating Trump’s mishandling of defense information. But we should be vigilant about the DOJ’s disproportionate use of this statute under Bush, Obama, and now Biden to chill truth-telling about government malfeasance.
At minimum, we need to rein in the Espionage Act by enacting commonsense reforms such as Representative Rashida Tlaib’s proposal to allow a public interest defense to defendants. At the same time, we should be wary given the DOJ’s history of unequal application of the Espionage Act, especially against powerful executive branch officials. As we learn more about Trump’s handling of these documents, we will see if Attorney General Merrick Garland is as committed to “faithful adherence to the rule of law” and “applying the law evenly, without fear or favor” as he claims to be.
