DOJ and Special Counsel Jack Smith’s misuse of the Espionage Act

Lawfare Cabal Targets Trump

Barely two weeks ago, the lawfare cabal at Just Security, led by Andrew Weissmann, the former senior prosecutor for the Robert Mueller special counsel investigation, released the second edition of their “model prosecution memorandum” to (presumably) help out his former colleagues at the Department of Justice (DOJ). The document seeks to offer up nearly any theory of law to “get Trump.”

Just Security bills itself as “an online forum for the rigorous analysis of security, democracy, foreign policy, and rights,” but in practice, the organization, funded in part by George Soros’ Open Society Foundations, is the legal beachhead of the Trump resistance. Their model document provides 186 pages of “throw the book at him” musings along with 222 separate footnotes and has largely telegraphed the DOJ’s legal strategy. The document is supported by a variety of public and nonpublic allegations (surely a mixture of leaked information and fabricated information if history is any guide). The fact that their roadmap nearly parallels the now-public indictment of former President Donald Trump is surely a coincidence.

Prosecuting Leaks and Foreign Spies

The “document retention” portion of the Espionage Act states:

§793. Gathering, transmitting or losing defense information

(e) Whoever having unauthorized possession of, access to, or control over any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted, or attempts to communicate, deliver, transmit or cause to be communicated, delivered, or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it to the officer or employee of the United States entitled to receive it… (emphasis added)

Prominently in their model prosecution memorandum related to the Espionage Act is the acknowledgment that the statute is typically used for “leaking cases and foreign government spies.” Dismissing the DOJ’s historical circumspection regarding its applicability, the document proceeds to weave together a basis to charge Trump under the statute. It is unclear if the fan fiction roadmap was needed, as the record shows that the DOJ is in fact quite adept at using 18 U.S.C. 793 (e) as a cudgel to punish its political enemies. Take for instance the case of Thomas A. Drake.

Government Cudgels a Political Enemy

Drake Joined the National Security Agency (NSA) as an executive on Sept. 11, 2001. He quickly became concerned about illegal activities, waste, and mismanagement within the agency. Accordingly, he attempted to raise concerns through standard channels and even elevated his concerns to Congress as a whistleblower.

Eventually, after getting nowhere trying to blow the lid off both financial waste and abuse of Americans’ fundamental civil rights via certain NSA surveillance programs, he decided to leak certain controlled information to a media contact. The resulting stories about the Trailblazer program published in The Baltimore Sun in 2006 and 2007 embarrassed Michael Hayden’s NSA.

Our government rewarded his efforts in November 2007 with a raid on his home, initially suspecting him of being the source of the leaks that disclosed the agency’s warrantless wiretapping in a 2005 New York Times expose. He denied having anything to do with those leaks but acknowledged providing unclassified information to The Baltimore Sun.

After the raid of his home, which caused him to lose his job, the government sat on the case for nearly three years before indicting him in April 2010. The indictment levied five counts of willful retention of National Defense Information (the Espionage Act charges), one charge of obstruction of justice, and four counts of false statements, but the case was eventually pleaded to a misdemeanor. At sentencing, the judge excoriated the government, first for wasting the court’s time only to settle the case on the eve of trial for a misdemeanor, and second for jerking around the defendant for as long as they did.

THE COURT: What message is sent by the government, Mr. Welch … when the government dismisses a ten-count indictment a year after indictment, on the eve of trial, after days and days of hearings under the Classified Information and Procedures Act, and in what I find to be an extraordinary position taken by the government, probably unprecedented in this courthouse, for a case of this profile, literally on a Thursday afternoon before a Monday trial, subject to the government to be prepared as you will in a moment to dismiss the entire ten-count indictment and allow the defendant to plead guilty to a misdemeanor?

               …

THE COURT: And as I tell you, as I say to you, Mr. Welch, I find it extraordinary. I even talked to one of my colleagues about it, his career background is similar to mine, I find it extraordinary in this case for an individual’s home to be searched in November of 2007, for the government to have no explanation for a two year delay, not a two and a half year delay, for him to then be indicted in April of 2010, and then over a year later, on the eve of trial, in June of 2011, the government says, whoops, we dropped the whole case.

Judge Rebukes the Government

The government never proved that any leaked information was classified, and the national defense information he did retain was consistent with his initial protected whistleblower activities. Notably, the Espionage Act charges were all dropped. Ultimately, Drake pled guilty to the misdemeanor of exceeding the authorized use of a government computer. The offense did not involve mishandling classified information. According to the judge, the government’s explanation for their delays didn’t “pass the smell test.”

Without a viable case, the government still did everything to break this man and sought $50,000 in fines for the misdemeanor. After actually praising Drake, the judge gave him probation with no fine and called the government’s conduct “unconscionable” — a remarkable defeat for the government, which tried to brand Drake as a traitor to his country.

Judge Richard Bennett also presciently warned: “It is at the very root of what this country was founded on against general warrants of the British. It was one of the most fundamental things in the Bill of Rights that this country was not to be exposed to people knocking on the door with government authority and coming into their homes.”

Apparently unmoved by the judge’s warning was the DOJ’s public integrity section chief overseeing the case: Jack Smith. Smith, who signed off on the government’s embarrassing retreat in the Drake case, was also later responsible for the 2014 indictment and conviction of Virginia Gov. Robert McDonnell, infamously reversed by a unanimous Supreme Court in 2016. Chief Justice John Roberts, writing for the court, criticized the prosecution’s “boundless” interpretation of the statute and called the case “distasteful.”

Smith is now the special counsel prosecuting Donald Trump.

With the entire intelligence apparatus, FBI, and DOJ lined up against him, the former president is in genuine legal peril, and it remains to be seen if he will ultimately prevail. But even if Trump’s lawyers help him “beat the rap” by successfully maneuvering around the DOJ’s partisan weaponization of the Espionage Act led by a zealous Smith, it is not entirely clear if he’ll beat the ride. Drake certainly has not. McDonnell certainly has not. One might be forgiven if they come to the conclusion that maybe that’s the entire point of all of this.