Trump was prosecuted under the Espionage Act — now he'll turn it against his "enemies"

There is palpable fear that Donald Trump's upcoming presidency will, as he repeatedly promised during the 2024 campaign, bring systemic suppression of free speech and criminalization of dissent. In his victory speech, Trump called the media "the enemy of the people," a recurring refrain of his political career. His nominee to head the FBI, Kash Patel, has called for the prosecution of journalists and leakers.

I know what this looks like first-hand: I have represented national security and intelligence whistleblowers across the Obama, Trump and Biden administrations who've been investigated or prosecuted for leaking government secrets to the press. Those secrets revealed "dark ops" like torture, extraordinary rendition, mass domestic surveillance and drone assassinations. Many of these programs were later deemed to be illegal, unconstitutional or both.

In an inversion of the standard judicial paradigm, government employees and contractors who revealed these extrajudicial activities were the ones subject to criminal investigation and prosecution. Even more concerning, they were charged under a draconian World War I-era law called the Espionage Act. Despite its name, the law has rarely been used against actual spies. Instead, it has almost exclusively been deployed against public servants to stifle internal dissent.

The Espionage Act is an ideal weapon for Trump’s retribution toolkit. In one of the ultimate dark ironies of this era, Trump himself has been charged under this law and knows its blunt force at first hand. His administration wielded the Espionage Act against FBI whistleblower Terry Albury, who revealed surveillance of journalists, religious and ethnic minorities and immigrant communities. Under Trump, the Justice Department also used this law to prosecute Air Force veteran Reality Winner, who disclosed Russia’s attempts at election interference. The Espionage Act's most recent victim is Daniel Hale, a veteran of the Afghan war who exposed the brutally inaccurate targeting of drone strikes and the extent of unreported or under-reported civilian casualties.

More troubling still, Trump expanded the Espionage Act’s use in charging WikiLeaks founder Julian Assange for activities that can reasonably be described as ordinary journalistic practice. Joe Biden's administration could have closed the door on this dangerous law, either through a legislative fix or by standing down in court cases, but did not, instead allowing the problematic prosecutions against Hale and Assange to continue.

The most insidious part of this law — and the part that may appeal to Donald Trump the most — is its built-in provisions of secrecy. During the pre-trial phase, discovery takes place in a Sensitive Compartmented Information Facility, or SCIF, an enclosed, government-controlled room for dealing with allegedly classified information that has supposedly been leaked. This hermetically sealed, windowless room is the only place where attorneys and their clients can discuss the evidence. Cell phones, personal laptops and even legal pads are prohibited. After that, legal proceedings under the Espionage Act largely transpire away from the eyes of the public, thanks to national security secrecy rules – in effect, creating a modern-day Star Chamber. 

Preliminary hearings transpire behind closed doors. In one especially Kafkaesque incident, I was even shut out of a hearing on dispositive motions for my client, Daniel Hale, even though there was no classified information at issue. The "public" docket, a formal record of all the proceedings and filings in the case, sheds no additional light, consisting largely of pleadings that are filed ex parte (that is, by only one side) and under seal, for what is called "in camera review" (meaning for the judge’s eyes alone). Once the process reaches “open” court, further barriers arise. The Classified Information Procedures Act allows the government to create “substitutions” for secret information, such as summaries or redacted versions that can be used in court.

These procedures can sometimes border on the bizarre, beyond George Orwell's imagination. In the prosecution of NSA whistleblower Thomas Drake, the government tried to invoke the silent witness rule, which would require the judge, the jury and the opposing lawyers to speak in code words indecipherable to the public. In that case, the government even tried to preclude the usage of the terms "whistleblowing" and "First Amendment."

Finally, the Espionage Act is a strict liability law, meaning that a defendant’s intentions — whether salutary, malevolent, purely selfish or some combination thereof — are entirely irrelevant. It doesn’t matter whether disclosures were made because the whistleblower believed that the public had a right to know what the government was doing in secret, or were made for fame, personal profit or petty revenge. No public interest defense is available, meaning that a defendant cannot explain at trial that their disclosure of information — even if it demonstrated illegal, unethical or morally troubling conduct by the government — was something the public needed to hear about. In fact, defendants cannot talk about their motives, benevolent or otherwise, until they face sentencing once they’ve already been found guilty.

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The fact that Trump himself has been charged under this law is likely to embolden him, not deter him. Both of our political parties bear responsibility for the looming crackdown on media sources and journalists who have spoken out against abuses of power. In a permanent stain on Barack Obama’s legacy, his Justice Department revived the long-dormant Espionage Act and used it to prosecute more whistleblowers than all previous presidents combined. That created a dangerous precedent that has subsequently been used to normalize the prosecution of so-called leakers.

Trump's DOJ further expanded the Espionage Act’s use during his first term with the indictment of Assange, which sought to criminalize such typical journalistic activities as cultivating a source, protecting their identity and using encrypted messaging. The Biden administration aggressively continued the Assange case, which ended in a plea bargain and the first-ever Espionage Act conviction for a publisher.

Trump is likely to use a range of more obvious press suppression methods, such as defamation lawsuits, the revocation of FCC licenses, and the repeal of Justice Department regulations that restrict subpoenas for media outlets' proprietary information and internal records. But the table has been set for the incoming Trump administration to unleash the far stealthier and constitutionally dubious tools of the Espionage Act to prosecute media sources and journalists as part of his revenge campaign to go after "enemies within."

It is worth remembering that this pernicious law was most famously abused when a corrupt president deployed it several decades ago against a legendary whistleblower. That president was Richard Nixon, and that whistleblower was Daniel Ellsberg, who released the Pentagon Papers to reporters and ranked near the top of Nixon's infamous enemies list. That is a cautionary tale we should not forget. We must be wary of this deeply flawed law being used by a president who, by his own admission, is hellbent on retaliation against media critics and perceived political enemies. If the past is prologue, the danger that press freedom may fall victim to personal vendettas is real.