Time to Scrap the Espionage Act of 1917

According to the FBI’s court-approved search warrant for Donald Trump’s Mar-a-Lago resort, probable cause existed to believe Donald Trump may have violated three laws by seemingly stealing 300 classified government documents from the White House, some extremely sensitive, and squirreling them away in his Florida mansion. For the public, the most arresting (no pun intended) of these allegedly violated statutes is the Espionage Act of 1917.

Despite its alarming name, the Espionage Act covers more than just illegal spying against America. The law bans obtaining national defense information with intent or reason to believe that it may be used for injury to the United States or to the advantage of any foreign nation. Although the statute was written before Harry Truman’s executive order in 1950 that established a ranked classification system for the degree of restriction on any particular document (for example, Confidential, Secret, or Top Secret), the so-marked documents allegedly purloined to Mar-a-Lago would clearly fit this category, as could even some unclassified items. Yet at least so far, Trump has not been charged with trying to sell them to foreign countries or use them to blackmail those nations for cash—actions the public has come to associate with the word “espionage.”

In fact, even when the Act was passed in 1917, during World War I, it started out with hyperbole in the title. President Woodrow Wilson, who flagrantly violated American civil liberties in many ways during the war, and Congress really were targeting anti-war groups that were urging industrial workers not to support the war or young men to resist the draft. The politicians feared that such opposition to the questionable first-time U.S. meddling in a European war in violation of the Monroe Doctrine would undermine the mobilization of resources and manpower to prosecute the conflict. Using this statute for this end was a clear violation of the First Amendment by the blatant restriction of free speech. But in American history, wars—often suspect ones—regularly have excused bald violations of the civil liberties that make America a free country.

More recently, using the Espionage Act to abuse the First Amendment has taken another form. Elected politicians and civil service officials regularly leak information to the media, some of it very sensitive. Yet recent presidential administrations, frustrated in their attempts to stanch such violators of the rules, have used the statute to threaten and even prosecute journalists for doing their job of merely reporting the leaked information to the public. The administration of Barack Obama, a constitutional lawyer, was especially aggressive in such harassment of journalists.

Freedom of the press is an important pillar of the American republic, as recognized by its special mention in the First Amendment. The nation’s founders correctly believed that a free flow of information is paramount to maintaining a free society. This freedom is so important to the health of a democratic society that it is even more vital than preventing the disclosure of above-top secret information that might compromise intelligence sources and methods, even as critical as that is. However, if the government cannot prevent its officials of one stripe or another from leaking its highly sensitive information for political purposes, then it should not abuse the Espionage Act to go after the press for printing those secrets.

The Espionage Act is so vague that Congress should strike it from the books—especially because of historical and recent examples of flagrant government abuse to restrict First Amendment rights. In the future, a more specific law is needed to prosecute substantial, severe, and likely intentional mishandling of classified documents by government officials, as has been alleged in the case of the former president, while clearly exempting the free speech rights of journalists and ordinary citizens.