For a century after the Espionage Act was passed by Congress and signed into law by Democrat President Woodrow Wilson, our friends on the left have consistently denounced it as antithetical to democracy. They objected when it was used to jail socialist Eugene Debs in 1918 and continued to condemn the statute 55 years later when the Nixon administration deployed it against Daniel Ellsberg pursuant to the Pentagon Papers. As recently as 2013, the Guardian accused the Obama administration of McCarthyism for using this law to “persecute” whistleblower Edward Snowden.
Yet, now that Special Counsel Jack Smith has included 31 violations of the Espionage Act in his indictment of former President Trump, the left has had a “road to Damascus” experience concerning the once-reviled statute. The same Guardian that once denounced the Act as a “legal relic” expresses no qualms about Smith’s heavy-handed use of it against Trump. Indeed, it dismisses charges that President Biden has indicted his most prominent GOP challenger with the risible claim that “the justice department operates independently of the White House.” The Wall Street Journal easily disposes of that nonsense:
Special counsel Jack Smith announced the indictment in a brief statement on Friday. But no one should be fooled: This is Attorney General Merrick Garland’s responsibility. Mr. Garland appointed Mr. Smith to provide political cover, but Mr. Garland, who reports to Mr. Biden, has the authority to overrule a special counsel’s recommendation. Americans will inevitably see this as a Garland-Biden indictment, and they are right to think so.
The Guardian is by no means the only left-leaning publication that has usually adopted a dim view of the Espionage Act — unless it is used against Donald Trump. Politico, in an opinion piece published after the Mar-a-Lago FBI raid that eventually led to the Smith indictment, is all too typical. Its author, human rights and civil liberties attorney Jameel Jaffer, advises his readers that the law is wildly overbroad, but that none of this really matters in the Donald Trump case. Why not? “The concerns that have led civil liberties and press freedom groups to fear and condemn the Espionage Act simply aren’t present here.”
Jaffers expects us to believe that Trump’s civil liberties as an American aren’t relevant. This is the same reasoning that the Wilson administration used to imprison Eugene Debs, Charles Schenck, Elizabeth Baer, and at least two thousand additional critics of Wilson’s policies. That Trump, like Joe Biden, retained possession of classified and unclassified materials after he left office doesn’t justify the selective use of a statute that Jaffers admits has been frequently used “as an instrument of political repression.” Jaffers also ignores the elephant in the room as outlined by Sen. Lindsey Graham (R-SC) on ABC’s This Week:
Hillary Clinton did very similar things and nothing happened to her. President Trump will have his day in court. But espionage charges are absolutely ridiculous. Whether you like Trump or not, he did not commit espionage. He did not disseminate, leak or provide information to a foreign power or to a news organization to damage this country. He is not a spy. He’s overcharged. Did he do things wrong? Yes, he may have. He will be tried about that. But Hillary Clinton wasn’t.
Meanwhile, another left-leaning publication that has been critical of the Espionage Act has had an epiphany. Slate, in a 2010 article by David Greenberg, described its ill-effects as follows: “U.S. attorneys in Thomas Gregory’s Justice Department prosecuted socialists, pacifists, and German-Americans on flimsy grounds. Many people were arrested for crimes of mere speech.” Greenberg laments the failure of the Supreme Court to stop such First Amendment violations: “Liberal icon Oliver Wendell Holmes, coining his famous ‘clear and present danger’ standard, led the court in upholding three dubious Espionage Act verdicts.”
In Trump’s case, however, Slate has no reservations about Special Counsel Jack Smith’s use of this controversial law against a former president. Dennis Aftergut gleefully reports, “Trump’s statements completely undermine the potential defenses he has repeatedly floated in the classified-documents case.” Aftergut goes on to make much of the tape recording that many on the left have glommed onto as damning evidence that Trump somehow violated the Espionage Act. Never mind that the recording doesn’t prove that Trump actually let anyone read any classified documents. He hopes this is the elusive smoking gun:
Trump may have been discussing—probably inaccurately—the contents of a classified document that he gave back to the government six months later. Importantly, for purposes of proving his unlawful intent in retaining documents ultimately retrieved in the court-authorized August 2022 search of Mar-a-Lago, Trump’s recorded statements are powerful proof, whether or not they accurately described the document.
Inevitably, a number of elected Republicans commented on the indictment and its blindingly obvious purpose. Speaker of the House Kevin McCarthy (R-Calif.) tweeted, “It is unconscionable for a President to indict the leading candidate opposing him. Joe Biden kept classified documents for decades.” House Majority Leader Steve Scalise (R-La.) tweeted, “Let’s be clear about what’s happening: Joe Biden is weaponizing his Department of Justice against his own political rival.” Florida’s Republican Gov. Ron DeSantis tweeted, “The weaponization of federal law enforcement represents a mortal threat to a free society.”
Indeed it is. It’s clear, however, that the left is less concerned about the future of the republic than they have led us to believe. Every left-leaning publication listed above has at one time or another lectured us about multifarious threats to “our democracy,” including the danger presented by the Espionage Act. Yet, when given the choice to defend it from clear abuses of power like the Mar-a-Lago raid and Special Counsel Jack Smith’s attempt to convict and jail his boss’s probable opponent in the next presidential election, they are MIA. Eventually, they will discover that there are far worse things than a second Trump term.