Briefly Noted: Dersh Weighs In On Espionage Act

I’m doing family stuff today, but this brief post may be informative for readers who aren’t familiar with this area of the law. Alan Dershowitz, noted criminal law expert, weighed in on the Trump indictment. He covers a lot of ground in the brief 4 minute or so interview embedded at Breitbart:

Dershowitz: Dems Who Opposed ‘Dangerous’ and ‘Unconstitutional’ Espionage Act Now ‘Rooting for it to Be Applied Broadly’

His broad, initial bottom line can be summarized in two points:

1. The Presidential Records Act probably covers virtually all counts in the indictment, however

2. Trump may need to explain the Bedminster tape, but there are perfectly plausible explanations available.

Readers may recall that yesterday I referred to criticisms of the Espionage Act stemming from constitutional issues. I briefly mentioned the vague and broad language of the Act, as well as the fact that—contrary to popular misconceptions—the Act doesn’t necessarily have anything to do with “classified” information—the classification system wasn’t put in place until 1951, decades after the Espionage Act was passed. Dershowitz, who in addition to his expertise in criminal law also approaches many legal issues from an oldtime liberal “civil liberties” angle, weighs in on the Espionage Act in the concluding portion of the brief interview. It’s important to understand that Dershowitz isn’t denigrating national security concerns as such. Rather, he goes back to the historical origins of the Act and the intent behind it. That intent, as most scholars agree, was not so much with national security as it was with suppressing dissent:

The Espionage Act is one of the most dangerous and unconstitutional statutes ever passed. [It was] passed by Woodrow Wilson in 1917 in order to imprison dissidents who were opposed to the war. Every civil libertarian, every liberal, every progressive, every Democrat I know was against this statute for the last 100 years. Now, they’re all rooting for it to be applied broadly to conduct that has nothing to do with espionage. There’s no allegation that he ever endangered national security or showed material to enemies or sold it to [enemies]. So the word "Espionage" is totally misleading. ... This is a "possession" statute, and even the count [in the indictment] involving showing [the referenced document] to other people was essentially brought under provisions of the Act that talks about "willfully possessing” classified material."

I think it’s safe to say that when you hear talking heads referring portentously to the Espionage Act in connection with this indictment, more likely than not they’re trying to smear Trump by conflating him with people like Aldrich Ames and Robert Hanssen—as mentioned in the interview. These concerns, as Dershowitz points out, are not new. But liberals are rediscovering the profoundly anti-free speech roots of their Progressivism these days, and this is just one more example of that.