More On The Dangers Of The Espionage Act

I’ve referred several times to the longstanding criticism of the Espionage Act, based on its broad reach and its historical use to suppress political dissent. Professor Jonathan Turley has a new article out that begins with a brief discussion of the danger the Espionage Act presents to free speech—in fact he’ll be publishing a book on the subject:

DOJ Went Overboard With Espionage Act Charges Against Trump

The prosecution of the former president could shed light on the use of a long-troubling statute.

“May God have mercy on them, for they need expect none from an outraged people and an avenging government.”

Those were the words from Attorney General Charles Gregory in November 1917, when Congress enacted the Espionage Act, the very act now being used to prosecute former president Donald Trump.

Many of us in the free speech community have long denounced the Espionage Act, which was passed to crackdown on political dissidents, particularly those opposed to World War I.

In a forthcoming book, I explore the checkered history of this Act where thousands were arrested for political speech. In an age of rage, the Espionage Act is the government's favorite weapon to use against its critics.

The Act often seems like the last refuge of the government when it lacks any other means to punish targeted persons. This includes the continued prosecution of Julian Assange for publishing classified information, an act that newspapers have regularly done throughout history to expose government lies and abuses.

In a curious way, the charges against Trump are welcomed as another opportunity for the courts to look at this insidious law. That need existed long before the raid on Mar-a-Lago.

“...the Trump indictment is historic, but it is also history repeating itself with the government reaching for this dangerously all-purpose statute.”

That’s all fine and good, but in fact the dangers to our republic presented by the Espionage Act go beyond its stifling of speech and dissent among the citizenry. The use of the Act to prosecute a former president strikes at the very heart of our Constitution and the separation of powers—such as remains of that framework. Frank DeVito raises some of these issues today:

The Trump Indictment: What Can a Unitary Executive Do?

The question at the heart of the indictment is the extent of executive power.

As usual, I recommend following the link, because I’ll be focusing on portions of the article.

Professor Turley, in the article linked above but also elsewhere, has stated that he views the use of the Espionage Act against Trump to be a greater threat than any of the other lawfare hit jobs that have been deployed. That observation is the starting point for DeVito’s reflections, but he goes in a different direction from that point than does Turley. We begin with DeVito’s strong theme paragraph:

Should the current indictment be seen as anything more than another baseless attack on Trump’s presidential run? The answer is yes: If the special counsel can provide witnesses to actually prove the allegations made in this indictment, then this case is distinct from the endless politically motivated hit jobs. This case has real important facts, real questions of law, and raises real issues around our understanding of the Constitution, the unitary executive, and the precedent being set by filing criminal charges against a former president of the United States.

The prosecutors have sidestepped the losing issue of whether Trump had “unauthorized access” to the documents in question. Instead, they attempt to get around the Presidential Records Act (PRA) by maintaining that Trump was required to return the documents that he possessed—documents that were created by and during his presidency, under the ultimate authority of Trump as president—at the demand of a subordinate bureaucrat.

As we’ve observed before, none of this has anything to do with classification as such—the Espionage Act came into being over thirty years before the classification system was created and whether or not any of the documents were or were not classified is beside the point of the Espionage Act. It really comes down to who is authorized to possess government documents and who polices that. The problem that arises when the person in question is the President is that, for purposes of the Constitution, the President is the government—that is, the President is the Executive Branch. The President is the only executive officer created by the Constitution with defined powers and duties (which distinguishes him from the Vice President). In the beginning, there were no departments and cabinet secretaries. There was no DoJ and no Attorney General (read Wikipedia for an educational history of the government’s legal structures). Go read Article II if you don’t believe me. It was presumed that the structures of a fully functioning government would be put in place by law to form a fully functioning Executive Branch—one man can’t do it all—but, ab origine, in illo tempore:

The executive Power shall be vested in a President of the United States of America.

The executive power was not vested in The Interagency. It’s true that Congress is given the power to enact laws to “carry[] into Execution” the powers of the government, but the President in his person remains “The executive Power”. The departments and agencies created by legislation are subsumed under the executive power, i.e., the person of the POTUS.

In essence, then, the indictment seeks to somehow reduce the POTUS—who is the Executive Branch—to the level of a mere functionary or employee of the Executive Branch—which has no constitutional existence outside the person of the President. The Executive Branch cannot exist in the absence of POTUS—that’s the point of the succession provisions—so what is this Executive Branch

These reflections lead to the conundrum that led to passage of the PRA:

The outstanding question is whether Trump was unauthorized to possess the national defense documents at issue. If Trump rightfully possessed those documents, if they were his documents, then the whole indictment falls apart.

If Trump had authorized possession, then he wasn’t concealing or misrepresenting his possession of the documents. And the facts show that there was no real subterfuge involved. Well, but how can the President be “above the law”? That’s the wrong way to look at it. The correct way to look at it is, How can Congress pass a law that would alter the constitutional status of the POTUS? It can’t. But then:

By what authority are there rules within the executive branch agencies that can govern the president’s treatment of classified documents?

That’s easily answered. The authority for such rules derives from the President via Executive Order—remember, the President is the Executive Branch, which is precisely why he’s able to issue Executive Orders. That’s what’s meant by the concept of the “unitary executive”. It follows that

Of course Congress can lawfully pass laws related to national defense and the protection of information that could harm the United States. But Congress cannot use that legislative power to restrict the constitutional powers of the president.  

The “unitive executive theory” periodically becomes a trendy topic during newsworthy uses of presidential power, but the theory itself is simple and based in the Constitution. Because Article II of the Constitution vests the executive power of the United States in the president, then, according to the Yale Law Journal, “The executive [branch] is headed by a single person, not a collegial body, and that single person is the ultimate policy maker, with all others subordinate to him.” This theory often gets disparaged as promoting tyranny or a monarch-like president, but it is actually quite reasonable. The president of the United States is the executive, and every other member of the executive branch (from the heads of the CIA and the State Department to the janitors in the Pentagon) is subject to the president and serves at his pleasure. 

Ask yourself, Could Congress pass a law limiting the ability of the President to dismiss his executive officers? The answer is: No. The President may well be limited in that regard by political considerations, but not by Congress. By the same token, the President cannot dismiss, say, the Speaker of the House—much as he might like to do. He may exert political pressure that leads to such a result, but he can’t issue an Executive Order to accomplish it. This is called Separation of Powers.

Now, at this point, DeVito addresses Bluto’s campaign against Trump. Remember—no matter what Bluto and Vindman may say, the Executive Branch—what Bluton call’s “the government”—doesn’t actually exist separately from the President. What he calls “the government” are simply subordinates of the President.

Former Attorney General Bill Barr recently stated that “Battle plans for an attack on another country or Defense Department documents about our capabilities are in no universe Donald J. Trump’s personal documents. They are the government’s documents.” Now, from the perspective of a humble lawyer who has not a fraction of the experience or legal knowledge of Bill Barr, this is a strange statement. If Article II vests executive power in the president, then from January 2017 to January 2021, Donald Trump was head of the executive branch. Even documents as sensitive as battle plans or military capability explanations were created by members of the executive branch, subordinates of the president. Those documents were created for the executive. If that is the case, it is hard to understand how there could be “no universe” in which those documents are Trump’s documents. 

On one hand, such sensitive national defense documents are created for the executive to do his job as president, not for his personal pleasure. But on the other hand, it is difficult to justify allowing the executive branch … to have any kind of right to the treatment of documents distinct from that of the president, for whom and under whom the documents were created. 

Now we see why the President is able to declassify anything he wants. It’s because the classification rules exist only by his action as The Executive Power. He doesn’t need to write a memo. Those classification rules are put in place to rule the actions of his subordinates. He can declassify documents simply by taking them from the Oval Office to his living quarters in the White House—Obama did that all the time, and no doubt other Presidents did, as well. If Trump, before his term expired, walked out of the White House with cartons of documents, those were all declassified by his action.

I know that sounds weird, but consider: The United States of America existed for a long time before 1951, when the classification system was put in place by Executive Order.

Admittedly, this question of how far the power of a president over these documents, especially once he leaves office, is not an easy question. But it is likely the question on which this whole federal indictment hinges. If our Constitution and our laws vest all executive power in the president, and if all documents created by his subordinate officers are properly his, then it is inappropriate to apply 18 U.S.C. 793(e) to documents created for a president during the time he was president. If the president is properly bound by this statute once he leaves office, if he only possesses these documents as executive with no authority to bring them home in his personal capacity when his term ends, then Bill Barr is probably right that “if even half of [the indictment] is true then he’s toast.” 

Is this really such a difficult question? Would the nation crumble and fall if “national defense” information were made known to the citizens of this country? The PRA was passed in order to smooth over some of these issues. But note two things: 1) Congress could have said, Hey, we’ve got the Espionage Act already, so what do we need the PRA for? 2) They didn’t do that, because the PRA—up until the unique case of Trump—accepted the received view that envisioned that the President retained a proprietary interest in documents created by his tenure as the Executive Power. Until Trump these issues were resolved by negotiation and, if necessary, by civil lawsuits. When it came to Trump everything changed.

But the core issue is one of separation of powers. If Congress can pass a law like the Espionage Act that, retroactively, is interpreted to restrict a President’s constitutional powers as the Executive Power, then the President is no longer the Executive Power. Who, then, will be “the government” that Bluto speaks of?

I would suggest that “the government” would, in effect, become officially what it has already to a great extent devolved into: Government by cabal, government by an oligarchy of the Deep State bureaucrats and the key congressional committees. The Interagency, as enabled by Congress.

Why would that be so bad, you ask? This is why. Because if the President no longer has full control—in theory—of the Executive Branch then Vindman is right: He no longer even makes policy. Worse, since we know that we have the best government money can buy, the true rulers will be the special interests, the groups with ideological axes to grind, like the Neocons, who do not answer to We the People. But who do have the money to suborn the members of the Legislative Branch. Yes, they already do, but if the principle is accepted in law that Congress can control and restrict the Executive Power’s constitutional authorities, then the sky becomes the limit. It will not be possible, even theoretically, to cleanse the Swamp. The Swamp will rule.

This is precisely what was at stake in the fake impeachments of Trump. Congress thought better of going down that road—at that time. Now, apparently, with the specter of a Trump Redux looming, the DC establishment may be ready to trash the Constitution and go for full power. In the service of Big Money, of course. We already know that nothing Trump did caused any harm to the national defense. No, this reckless course of prosecution is about who controls policy. The Deep State, the permanent government, is saying: Never Again. Never again will a president be allowed to act as the Unitary Executive. We are government.

I watched this video this morning. The entire video is very interesting, especially regarding the Cuban Missile Crisis and the U-2 shootdown. However, I’ve cued the video toward the end because that’s where the discussion of money in American politics comes in: