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On February 8, 2024 Special Counsel Robert K. Hur’s report into President Joseph Biden’s handling of classified documents was released. Although the special counsel found that Biden had willfully retained national defense information, he did not recommend charging the President. Among Hur’s justifications was that Biden lacked the required intent to violate §793 of the Espionage Act. This provision of the Espionage Act has been used to prosecute whistleblowers and a journalist.
Defending Rights & Dissent has long opposed the Espionage Act and called for reform of the law. Our policy director Chip Gibbons, a leading expert on the Espionage Act, had this comment:
The decision not to indict Joseph Biden under the Espionage Act runs in stark contrast to how the law has been applied to conscientious whistleblowers. If the Special Counsel is to be believed, Biden willfully retained national defense information and willfully communicated national defense information to a ghostwriter.
While the Espionage Act requires one have reason to believe their actions will harm the US or the intent to harm the US, prosecutors have essentially read this provision out of the law for whistleblowers acting in the public interest.
The government has argued for decades that if a person has received training in the classification system and knew the information was classified, they would have reason to believe their actions would harm the US. This is true even if the information is wrongfully classified, its release does not damage US national security, or if the defendant in question did not believe their actions would damage national security. According to this theory, if the government says it’s classified, then government insiders have the required intent to have violated the Espionage Act. People have been not only charged under this preposterous, but prevailing, interpretation of the Espionage Act, they have been imprisoned.
Although Defending Rights & Dissent has long rejected this interpretation of the Espionage Act, we are unable to celebrate Special Counsel Hur’s rediscovery of the Espionage Act’s intent provisions. Instead, Hur’s actions further confirm that the Espionage Act is a tool of political persecution. The largest leaker of government secrets has always been the government itself. But the act is only applied to those seeking to challenge US policy, be it our wars of aggression, killing of civilians during wars, or mass surveillance of our own people.
The double standard and political abuse of the Espionage Act is very real. Unfortunately, the discussion of double standards is likely to be dominated by the petulant claims of Mr. Trump and his political loyalists. Trump certainly has faced an Espionage Act double standard, but one he is the beneficiary of, not the victim of. Trump faces 32 counts under the Espionage Act, a rarity for a powerful figure. But Trump was only charged for those documents he was asked to return and failed to do so. Where Trump engaged in conduct analogous to Biden’s, he was not charged for it. Much like Biden would have been charged under the Espionage Act if he were not a high level political insider, Trump would have faced even more charges under the Espionage Act had he not been a former President.
The issues at stake are far greater than the horse race coverage of two unpopular candidates or the partisan sniping between Mr. Biden and his supporters and Mr. Trump and his supporters. The Espionage Act as written is simply an unfeasible, unworkable, unconstitutional monstrosity. Instead of repealing or reforming this overly broad law, the Department of Justice has opted to selectively enforce it, turning it into a weapon to silence critics of US national security policy.
The perverse double standards can only be ended by reforming the Espionage Act. Defending Rights & Dissent remains ready to work with any member of Congress of any political party or ideological persuasion to do so.