The Espionage Act of 1917, one of the most contentious statutes relating to the First Amendment, is back in the news following the indictment of President Donald Trump for mishandling classified documents. What is the Espionage Act and how has it been used over time? Legal scholar Heidi Kitrosser, author of Reclaiming Accountability: Transparency, Executive Power, and the U.S. Constitution, and political historian Sam Lebovic, author of State of Silence: The Espionage Act and the Rise of America’s Secrecy Regime, explore the origins, history, and constitutional legacy of this World War I-era law. Jeffrey Rosen, president and CEO of the National Constitution Center, moderates.
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Heidi Kitrosser is the William W. Gurley Professor of Law at Northwestern University. An expert on the constitutional law of federal government secrecy and separation of powers and free speech law, she is the author of Reclaiming Accountability: Transparency, Executive Power, and the U.S. Constitution.
Sam Lebovic is a professor in the department of history and art history at George Mason University. He is the author of the award-winning Free Speech and Unfree News, A Righteous Smokescreen: Postwar America and the Politics of Cultural Globalization, and his most recent book is State of Silence: The Espionage Act and the Rise of America’s Secrecy Regime.
Jeffrey Rosen is the president and CEO of the National Constitution Center, a nonpartisan nonprofit organization devoted to educating the public about the U.S. Constitution. Rosen is also a professor of law at The George Washington University Law School and a contributing editor of The Atlantic.
Additional Resources
- Sam Lebovic, State of Silence: The Espionage Act and the Rise of America's Secrecy Regime
- Espionage Act of 1917 and Sedition Act of 1918 (1917-1918)
- Defense Secrets Act of 1911
- The Alien and Sedition Acts (1798)
- Schenck v. United States (1919)
- Heidi Kitrosser, Reclaiming Accountability: Transparency, Executive Power, and the U.S. Constitution
- Gorin v. United States, 312 U.S. 19 (1941)
- Heidi Kitrosser and David Schulz, “A House Built on Sand: The Constitutional Infirmity of Espionage Act Prosecutions for Leaking to the Press”
- United States v. Morison (4th Cir. 1988)
- Heidi Kitrosser, “The Espionage Act After the Mar-a-Lago Indictment,” Lawfare
- United States v. Morison (4th Cir. 1988)
Excerpt from Interview:Sam Lebovic discusses crucial milestones such as the Pentagon paper case, the rise of the secrecy state, and the war on terror.
Sam Lebovic: People wanting to speak truth to the public about what's been happening behind closed doors. Daniel Ellsberg's leak of the Pentagon Papers is the most famous of those but there's also other leaks some CIA, former CIA employees begin publishing sort of tell-all memoirs. As a result of the Watergate Scandal, there's a kind of internal investigation within the CIA which collates all the examples of illegality of the CIA has been up to for the last few years.
And that's all put into one document, which is not the best managerial practice if you're trying to keep things under wraps because that document then pretty quickly leaks to the New York Times. And so, you get the Pentagon Papers leak in 1971 which leads to what should have been really the major constitutional case testing the secrecy regimes as they've been patched together since the Espionage Act was passed.
And then, the classification system was layered on top, but actually that case turns out to be an entirely different sort of case because the Nixon Administration tries to use the Espionage Act not to prosecute the leaker, Ellsberg, in the first instance, but to prevent the newspapers from publishing in the first place and censoring them.
And that's the famous Pentagon Paper Supreme Court case that we have motion pictures about like All the President's Men and The Post, and the press wins the right to publish, which is terrific for the press, but doesn't tell us much about the secrecy system. And in fact, a lot of the judges in the decision said, "You know, Nixon's gone about this the wrong way. You shouldn't have tried to censor the press, you should have tried to prosecute the press legally." And it's not really clear whether the Espionage Act could have been used to punish the press for publishing…
The Pentagon papers case was such a mess, it sort of sets no important precedent. And in the next wave of disclosures that come out that lead to the year of intelligence, the church committee hearings, the pipe committee hearings, all the investigations of the abuses of the secret state for quite straightforward political reasons in the 1970s they don't really grapple with the core of the secrecy regime.
They leave the Espionage Act actually unrevised entirely. They don't put the classification system on a statutory basis. They instead settle for a few kind of weak patches for transparency. They passed the Freedom of Information Act, which has some flaws and I'd be happy to talk about it to people who are interested.
They create oversight committees they do a few other kind of bits and bobs around the edges but there's no holistic effort made in the 1970s to reimagine what's been created and it just kind of lives on and continues to kind of grow with new patches and new inertia through the 1980s and into the 1990s.
Excerpt from Interview: Heidi Kitrosser discusses the Trump indictment and its broader implications.
Heidi Kitrosser: I don't have any of the quotes right in front of me but I do quote them in the lawfare piece. One does not have to look far to find any number of things that Trump said indicating that he's the one who's tough on leaks of classified information and it is particularly stunning in retrospect now that he himself has been indicted under the Espionage Act for improperly retaining classified information, but he said things to the effect of, "Look, in my Administration no one is above the law. You leak or unlawfully retain or mishandle classified information, you go to jail. It's that simple."
Early in his administration, he made a point of saying that he had directed then Attorney General Jeff Sessions to look into leaks or improper retention of classified information. Sessions brag that he had, at this point, I think he said three times as many investigations opened into these matters than had the Obama administration.
And so Trump evinced an enormous amount of awareness and attention to the aspects of the Espionage Act particularly section 793[d] and [e] that pertain to unlawful retention or communication of quote, "national defense information." Which, again, is a statutory language to one not entitled to receive it, throughout his administration. He was very gung-ho about using these aspects of the act. And it's important to remember this when we see Trump as defendant saying as he's now publicly said on a number of occasions usually in the context of rallies or the like that the Espionage Act is this moth baled old relic that the Justice Department, or I should say, that that Special Counsel Jack Smith is wielding against him solely as political retribution.
I recall seeing footage of something at a rally that Trump said to the effect of, you know, he was kind of ginning up the crowd saying something to the effect of, "Can you believe what they've come up with now? The 1917 Espionage Act, where did they get this stuff?" Right? Clearly, he was very aware of it as president.
The other striking comparison between Trump's indictment and the indictments that his own administration brought against people for unlawfully retaining or leaking classified information in several cases as media sources is that Trump certainly from all of the reported information out there, there's no indication that Trump was seeking to serve the public interest or serving as a whistleblower or enlightening the public, in that sense, certainly, his case arguably is far less sympathetic than those of the media sources that he prosecuted during his administration.
And perhaps most notably, and this is the aspect of Trump's case and the indictment and the underlying facts that people probably have heard the most about, another very important distinction is the volume of information at issue as well as the brazenness with which Trump has handled the information, right?
Many people who have just followed news coverage of his indictment are probably familiar by now with the painstaking month-long process by which the National Archives asked if he had classified information, the the amount of times Trump or, and/or attorneys of his said, "Nope. We don't have any or we've given you everything there is."
The reported movement of documents in order, apparently, to sort of hide the classified information that he had. That's something that in terms of the statute causes real trouble for Trump. And that it's very hard for him to say he didn't act willfully and certainly hard for him to say he was unaware of this law given its use during his presidency. But it also paints a far more unsympathetic set of facts, I'd say than many of the individuals he prosecuted.
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