First Assange, Now Trump: How Espionage Act of 1917 Became a Political Tool
© AP Photo / Mark Humphrey
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Republican Senator Rand Paul from Kentucky urged the US Congress to repeal the 1917 Espionage Act on August 13, arguing that it was an "egregious affront to the First Amendment," after the FBI's raid of Donald Trump's Mar-a-Lago residence.
"I fully agree with the comments made by Senator Rand Paul regarding the long overdue repeal of the Espionage Act," says Philip Giraldi, a former CIA station chief and military intelligence officer. "As he observed, it was crafted during the First World War to stifle dissent and has been used since that time to convict and silence critics of White House policy as well as whistleblowers. It is an effective tool used by its supporters in the Justice Department to diminish First Amendment free speech rights but it does nothing to make the country safer."
In particular, the Espionage Act of 1917 prohibits obtaining information relating to national defense with intent or reason to believe that it may be used for the detriment of the US or to the advantage of any foreign nation. In June 1918, Title 1 of the Espionage Act was expanded to limit speech critical of the war with the passage of the Sedition Act of 1918. Even though the Sedition Act was repealed in 1921, many portions of the First World War-era Espionage Act are still law.
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Senator Paul raised the issue following the FBI's unannounced raid on Donald Trump's premises in Mar-a-Lago, Florida, and the publication of the bureau's search warrant, which indicates the former president is suspected of violating one of the provisions of the 1917 Espionage Act.
On August 8, the FBI seized several boxes of documents allegedly containing classified materials from Trump's home. However, the raid immediately triggered controversy as it turned out that the FBI may have taken documents covered by client-attorney and executive privilege, according to Fox News.
Attorney-client privilege means that an individual has the right to keep their confidential communications with an attorney secret. Executive privilege is the power of the US president and other officials in the executive branch to withhold certain forms of consultation between the president and senior advisors.
Trump demanded that the bureau return the aforementioned records in a post published via Truth Social earlier this week. The former president also insisted that federal agents "didn’t need to ‘seize’ anything": "They could have had it anytime they wanted without playing politics and breaking into Mar-a-Lago," he wrote. "It was in secured storage, with an additional lock put on as per their request..." Trump further claimed that all the documents seized by the FBI from his home had been declassified.
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Meanwhile, the former president is not the only "victim" of the Espionage Act, according to the CIA veteran.
"I would cite the examples of the Julian Assange prosecution and the recent Trump home search, but would also include the case of Jeffrey Sterling, a former CIA officer who was arrested, charged, convicted and imprisoned in 2015 over a press leak based only on circumstantial evidence," says Giraldi. "Repealing the Act will, inter alia, presumably free Assange. In the Trump case, the action by the government will only benefit the former president by turning him into a victim, and will likely convince him to run again in 2024, which means that the trauma that the country is going through right now will continue for at least two more years."
According to CBS News, the former president is being probed for supposedly violating Section 793 of the 1917 act, which envisages "gathering, transmitting or losing defense information," and also includes refusal to return information that is demanded by the government. The media outlet specified that Trump — "as far as is publicly known" — is not being investigated for giving national defense information to a foreign government with the intent to harm the US or aid a foreign nation, or traditional espionage.
However, some legal observers suggested that the FBI's raid could actually be linked to the investigation spearheaded by the House Select Committee on the January 6 Attack. The Democrat-dominated panel is seeking to establish a criminal case against the former president to render him either legally or politically ineligible to run in 2024, as US political analyst Don DeBar alleged in a July interview with Sputnik.
"There have been reports that there are provisions that would disqualify an offender from future possession of a federal office, but it's clear that only the Constitution, not a statute, is the determinative authority for who can run for President," says Stephen B. Presser, leading American legal historian and professor of law at the Northwestern University. "Any statute contradicting that would be void. Rand Paul is a man of principle, and the principles he is devoted to are libertarian ones."
However, there is little, if any, chance of US lawmakers revoking the 1917 Espionage Act, given that Senator Paul is "in a distinct minority in Congress," the legal observer emphasized.
