The latest charges against James Comey, made public Monday, accuse the former FBI director of transmitting national defense information in violation of the Espionage Act. Prosecutors say Comey directed staffers to talk to the New York Times about a Reuters story regarding email surveillance that Comey believed to be inaccurate — an allegation that doesn’t sound much like espionage.
The Comey case may be short-lived, as prosecutors appear to have blown their deadline to bring charges, but it’s the latest example of the Espionage Act being used for politicized prosecutions and government efforts to silence whistleblowers.
The statute has been employed by and against officials from both political parties: President Donald Trump was charged under the law for hiding classified documents in a Mar-a-Lago bathroom; former President Joe Biden was investigated under it for retaining a smaller set of files. Hillary Clinton was investigated for potential violation of the law for using private email servers to conduct official business as secretary of state. More recently, former national security adviser John Bolton was charged under the act over his retention of diary entries for his book. (He pleaded guilty in June.)
So how did this archaic statute become the go-to weapon for political and censorial prosecutions? The provision of the Espionage Act used against Comey and many others, which is only about 130 words, criminalizes conduct having nothing to do with spying. The 1917 law makes a felon of anyone who “communicates, delivers, transmits … or willfully retains” national defense information. It doesn’t matter if the information is classified because, like sliced bread and penicillin, the classification system did not exist when the statute was drafted. The law’s scope is so broad it makes motive irrelevant — a whistleblower exposing illegality to a journalist as an act of conscience, or an intelligence officer talking to domestic reporters, fares no better than a spy selling secrets to a foreign adversary.
The statute has been employed by and against officials from both political parties.
And its wording is so vague that, taken literally, it could permit imprisoning people who merely read national security reporting based on leaks in the newspaper.
The Nixon administration probably would have locked up Pentagon Papers whistleblower Daniel Ellsberg for life had its case against him not collapsed due to prosecutorial misconduct. Other administrations contemplated using the statute to stifle reporting. But it was really during the Obama administration that government reliance on the act flourished. The Obama Justice Department indicted multiple journalists’ sources and whistleblowers under the act and cited these investigations as reasons to surveil reporters. The Obama DOJ prosecuted far more “leakers” under the Espionage Act than all prior administrations combined, normalizing the practice for future administrations.
Trump has continued that tradition. In January, feds raided the home of Washington Post reporter Hannah Natanson and seized terabytes of data, citing alleged Espionage Act violations by a source. Prosecutors contended they had probable cause to believe Natanson herself had violated the act by retaining the data, although she wasn’t charged. A New York Times freelancer was subpoenaed earlier this year in connection to his reporting on North Korea. In October, Ian Brinksman, a former CIA contractor who allegedly told an independent journalist about intelligence assessments of political strife in Israel, was charged with violating the act.
There are fears that Trump will go even further. His Defense Department demanded that journalists pledge not to report unauthorized information by arguing that soliciting such information violates federal law, i.e., the Espionage Act. More recently, the Trump administration cited the act as part of its argument for banning MS NOW, CNN and Politico from the White House. When the Biden Justice Department continued Trump 1.0’s prosecution of WikiLeaks publisher Julian Assange, officials said that Assange was a unique case and that more conventional journalists would never be similarly charged. But Trump is reportedly seeking the ideal test case to prosecute a journalist for reporting.
The reality is that officials share sensitive information with reporters all the time, no matter which political party is in control. If nearly everyone in Washington is technically breaking the law by sharing or receiving national defense information, then prosecutors can essentially charge whoever they want, whenever they want and overlook violations when convenient. This is a potentially dangerous status quo anytime — but even more so with an openly politicized Justice Department.
Absent reform, future administrations will inherit the same vague statutory language and the same unchecked discretion, to perhaps misuse against a fresh set of enemies. In this context, reforming the Espionage Act should be an easy sell, especially when considering how the public has become more informed through journalism enabled by alleged Espionage Act violations or benefited from resultant reforms, such as the policy changes and increased awareness and scrutiny of domestic surveillance that followed Edward Snowden’s revelations or the changes to public perceptions of the Vietnam War after the Pentagon Papers were published.
The next Congress needs to learn from this bipartisan history of Espionage Act abuse and get behind Rep. Rashida Tlaib’s Daniel Ellsberg Press Freedom and Whistleblower Protection Act. The bill would limit the Espionage Act’s reach to legitimately classified information and to government employees with a legal duty to protect it. It would require the government to prove that a defendant intended to harm the United States or benefit a foreign power, and it would allow those charged to argue that they were acting in the public interest.
None of the Ellsberg Act’s reforms would interfere with prosecutions of actual espionage. But they would make it much harder for any administration to use a World War I-era law to settle modern-day political scores or to censor criticism.
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