The Espionage Act and Rand Paul’s call to abolish it

Rand Paul (R-Ky) is an immense, reeking pile of excrement, and I say that with all due respect to prickly, eternally aggrieved Doctor Paul. He asked today how we know the FBI isn’t busy planting evidence, adding incriminating evidence to the boxes seized at Mar-a-Lago, how do we know the DOJ isn’t a bunch of liars? That said, his recent attack on the 1917 Espionage Act is not nearly as crazy as, say, his ongoing personal war with Anthony Fauci, or his generally paranoiac worldview.

The Espionage Act, as Paul points out, criminalizes certain forms of dissent in a way that offends the Constitution, the First Amendment specifically. The strict wartime law certainly needs to be looked at carefully and rewritten much better than its current form. The same could be said about Nixon’s 1970 Controlled Substances Act and other laws that are still on the books, laws that were made primarily for political purposes and that we can fairly conclude outlived their ugly origins.

So fine, Rand, let’s not prosecute Mr. Trump pursuant to the Espionage Act. Obstruction of justice fits Trumpie and his gang much better anyway.

The Espionage Act of 1917

The Espionage Act of 1917 (extended by the Sedition Act of 1918), mentioned on the FBI search warrant for Mar-a-lago, is one of the most hastily written and draconian laws in the American federal criminal code. Let’s concede that there are matters of vital national security that every nation keeps top secret and that laws need to be in place to protect deadly state secrets, to avoid nuclear war, for example.  The Espionage Act covers those things, but quite a bit more, and in its present form, is a nightmarish legal quagmire in many respects to anyone charged under it.  For one thing, there is virtually no defense available, the First Amendment, for example, is not a viable defense.

The Espionage Act, (full name: An Act to punish acts of interference with the foreign relations, and the foreign commerce of the United States, to punish espionage and better enforce the criminal laws of the United States, and for other purposes) was passed two months after the US entered World War One against Germany.  It was designed to criminalize dissent against a deliberately promoted war in Europe that over a hundred years later nobody can untangle the reasons for, except that a lot of money belonging to the richest men in the world (and loaned to Britain and France) was riding on the roulette wheel of the outcome of this war of colonial superpowers.  Woodrow Wilson unleashed a massive, modern advertising blitz to sell the “war to end war” and “the war to make the world safe for democracy”  to initially skeptical Americans, who eventually signed up for it in a fervor of calculatedly stirred patriotic passion.  Anyone with any influence who was publicly critical of Wilson’s drive to war became an internal enemy, subject to the harsh justice of the Espionage Act.

The law made it criminal to give “aid and comfort to the enemy” by, for example,  making public statements calling into question the government’s overriding national interest in prosecuting a war, for any reason imaginable. This broadness was included specifically for the purpose of making sure the United States entered and remained in this war on the side of the Allies (who owed the wealthiest Americans an untold fortune by the middle of the war, a fortune that would be lost if Germany won).  The Espionage Act made otherwise First Amendment protected free speech a criminal offense, akin to treason, in time of war.  It prohibits “any disloyal, profane, scurrilous or abusive language about the form of government of the United States… or the flag.” 

The devilish genius of this statute is that intent is not an element of the crime under the Espionage Act, all you have to do is anything that prosecutors can argue gave aid and comfort to the enemy.  That’s why Julian Assange is on the verge of suicide, because he’s facing life imprisonment under this law where his intention in making public what he considered matters of grave public concern, such as video proof of at least one war crime, an aerial attack by a US helicopter crew against unarmed noncombatants in Iraq,  cannot be introduced as part of his defense.   Edward Snowden, same deal, no matter how strong a case he can make for the immense public importance of his disclosure of vast secret government surveillance of American citizens, under the Espionage Act his intentions, even the actual effects of his disclosure, are 100% irrelevant to his guilt or innocence. 

It is a unique and brutal law, which, in its day, put many critics of the “war to end war” in prison.  Popular American Socialist leader and presidential candidate Eugene V. Debs was convicted and sentenced to ten years during World War I for charges under the Espionage Act. It is used periodically (though very rarely) as a power move to chill dissent.  I personally don’t forgive Obama for deploying it many times (he set the post World War One record for Espionage Act prosecutions) against journalists and others who could fairly be called whistleblowers. It should be removed from the books, or dramatically improved, but while it is good law it is the perfect law to prosecute someone who keeps denying he has any intent to ever do anything except be perfect and a persecuted savior of the people who are under threat from so many sick and dangerous enemies, it’s unbelievable!

Beautiful bit of poetic justice

Reported by my sister, Amy Goodman:

If Trump is proven to have mishandled classified documents, he could be guilty of a felony. In 2018, then-President Trump signed a bill upgrading the crime from a misdemeanor to a felony, while increasing punishments for those who mishandle classified information.

GOP members of House Intelligence Committee call for transparency and accountability for unfair DOJ raid on their boss

The Republicans on the House Intelligence Committee held a news conference to challenge the Department of Justice for its decision to use “the most extreme measures” to recover evidence of what a federal judge was convinced is probably related to a federal crime. The committee members, speaking in measured tones, are outraged that the DOJ has not given them an urgent National Security reason for the search and is not immediately releasing the search warrant and inventory, (two items already in Trumpie’s hands and that he could have released at any time, but petty to mention [1]) as well as everything else related to the FBI search. They are united in their measured outrage over this outrageous attack on a man who, they say, has willingly and fully cooperated with every illegal partisan witch hunt against him. They are also troubled by the presence of a possible informant, one they say they are entitled to know the identity of.

Fox News has largely swung their influential allegiance in the 2024 presidential election toward Florida strongman Ron DeathSantis (as he’s called by half of the population of Florida) and away from besieged, compromised, damaged Teflon Don Trump. However, Rupert Murdoch is deeply committed to his far-right worldview, fascism is far preferable to majoritarian tyranny disguised as democracy to a billionaire with Murdoch’s extreme beliefs.

So here’s Fox’s live coverage of the Republican membership of the House Intelligence Committee demanding answers from Merrick Garland and the politicized, highly partisan DOJ. Other Congressional Republicans have already made it clear that when they take control of the House Garland’s going to be on the hot seat along with Biden, Harris, Schiff, Nadler, Schumer, Pelosi, Hillary and all the rest of the scoundrels they oppose for not letting them make America great again. Those Benghazi hearings, and the calls to lock her up related to Hillary Clinton’s emails, they’re promising, are going to look like yer proverbial child’s play compared to what they’re threatening against so-called elected Democrats if they take control of Congress in 2023.

In this news conference they demand answers- – why not a subpoena, why this extreme step? What is the specific urgent National Security reason that could legally justify this extreme step? DOJ, part of the (Unitary) Executive branch is riding roughshod over Congressional oversight by a co-equal branch, WTF? They want the identity of the informant, the spy, (the Rat, in Trump- speak) and they are very serious in demanding all of these answers. Serious as a heart attack.

I made it through the first six minutes, noting the obvious reason for no subpoena, that a subpoena for these exact items has already been defied by the former president, months ago, after many months of negotiation with his lawyers. He is the former president who instructed his loyalists to defy all subpoenas and fight them in court. His third AG, Barr, insisted to Congress that it was reasonable to believe Obama had “spies” in place during the transition, which helps explain why Mike Flynn’s lies to Pence and the FBI about illegal contacts with Russia, and his undisclosed paid work for the Turkish strongman, were “immaterial”. Barr also whipped up baseless fears of massive voting fraud in the 2020 election, before things at the White House finally went off the rails and he had to get the hell out of there to avoid facing criminal charges himself.

The long list of GOP grievances and demands presented today in relation to the FBI search is a tissue of the same stuff, nonetheless interesting to hear them set it out with a straight face, and the great moral indignation which is their hallmark. Their presentation will no doubt be very convincing to millions of “low information voters” who are already upset about what appears to be the brutal, baseless crucifixion of their charismatic, persecuted leader, a man of the people millions of Fox viewers faithfully love.

[1] Garland held a rare press conference yesterday during which he called bullshit on Trump. He announced that DOJ has gone to court seeking judicial permission to release copies of the search warrant and property inventory that Trump already has and is already legally free to release to the public. The federal judge in that case has given Mr Trump until 3:00 p.m. today to either oppose the DOJ or agree to it and allow those two documents to be released to the public, by DOJ.

Excellent point about “social media” amplifying a few angry idiots into a scary army spoiling for civil war

Sekhnet cracked me up the other day, it was really the best laugh I’ve had in a long time. She told me she didn’t know what is wrong with her increasingly right-wing friend who was getting weirder and weirder. She told me she’d sent him something and got a very weird response. This is what she sent him.

Cohen makes an excellent point about the right demanding that everybody obey their morality because they are right and those who disagree are evil. Fair enough, the Supreme Court did it to a disgusting extent this term (with more big bombs in waiting for next term), extremists always do this when they have the power.

But Megan McArdle, writing in the Washington Post, makes an even better point. Before the anonymizing anger megaphone of “social media”, a worked up ignorant asshole could be tolerated by his or her family, who would quietly roll their eyes to each other and let hateful views slip by without a fight. On social media every one of these trolls now has a giant megaphone. Get a few thousand of them worked up about something, and it immediately looks like civil war is afoot. In this case, a small army of isolated, angry assholes on Twitter make it seem like there is a nationwide “right-wing boycott” of a restaurant chain for adding an item to its menu that they somehow find offensive, which it clearly is not.

Read McArdle’s great take, “Cracker Barrel leaders understand an often-forgotten truth of the internet.” I found it smart and reassuring.

Gazpacho thugs attack innocent man’s home!

There are at least two sides to every story, as we know. And, in fairness, the search warrant executed at Mar-a-Lago yesterday has no known connection to any attempt by anyone to overturn any election anywhere. If you think all of this completely coincidental “destruction of crucial evidence,” by Secret Service, by the never confirmed acting heads of the Department of Homeland Security, by the winking slightly partisan Inspector General of DHS, by the Department of Defense, by White House log keepers, in any way justifies government agents searching an ex-president’s home, and even his safe, you need to hear a complete defense for why that FBI raid on Mar-a-Lago was, to some, much worse than the so-called riot on January 6th and all the alleged plans appurtenant thereto. Here we go, my best attempt to distill the story as told in defense of the man whose home was searched:

In an unprecedented attack, not seen since Nazi Germany, the private home of an innocent man was overrun by agents of a hostile political party! It was a private home. There was no justification for a partisan storming of the man’s house. The man had already been completely acquitted and exonerated of all charges at two previous trials, which were brought only to hurt him because his enemies knew he was actually right. He was totally exonerated both times. There was never any evidence against him, certainly not at either purely political “trial” and there is no evidence now, and no evidence was ever destroyed and nobody ever lied on his behalf in a court of law or anywhere else (and Stone and Manafort were both pardoned and whatever they were accused of or convicted for never happened, smart ass). He himself also never lied, in the true harmful sense of the word, but those who hate him, and by extension all good legacy Americans, constantly lie, in the most evil and destructive way!

There will be revenge for this deplorable gazpacho attack, we’re taking names and kicking asses because we are not idiots and we’re justifiably angry as hell. Long live our holy party and our righteous cause! Fuck communism!

Here’s a much more intellectual version, for your consideration.

An op ed in today’s Washington Bezos, entitled  “Trump should make the search warrant public”  ( begins:

There is little doubt that the residence and offices of a former president can be subjected to lawful searches and seizures. Anyone doubting this should read the opinion of Chief Justice John G. Roberts Jr. in 2020’s Trump v. Vance as well as the concurrence by Justices Neil M. Gorsuch and Brett M. Kavanaugh.

In that case, a New York state grand jury subpoena had been served on the president’s longtime accounting firm for the president’s papers. The Vance opinions review all the relevant precedents involving Thomas Jefferson, Richard M. Nixon and Bill Clinton. The justices, including the dissenters, agreed that not all criminal subpoenas of a sitting president were barred. “On that point the Court is unanimous,” the chief justice concluded.

If a sitting president is in some circumstances subject to criminal subpoenas from state officials, a former president can most certainly be subjected to criminal process by federal agents. This has never happened before, but as with all things Trump, the past is no guide to the present.

shortly afterwards, the legal analysis takes a sudden turn, with an announcement of what one side

rightly believes:

Most Republicans rightly believe that Trump has been unfairly targeted by civil servants motivated by partisanship going back years, long before his stunning election in 2016 and certainly thereafter. The “Steele dossier,” now thoroughly discredited, the charges of collusion with Russia debunked by special counsel Robert S. Mueller III, and the allegations of obstruction of justice dismissed as insubstantial by Attorney General William P. Barr all helped create an automatic suspicion on the right of this latest search.


Opinion by Hugh Hewit

Hugh Hewitt is a nationally syndicated radio host on the Salem Radio Network. He is also a professor at Chapman University School of Law, where he has taught constitutional law since 1996. 

Aha! Colleague (former) of onetime dean of Chapman, John Eastman, Esq. (dismissed by Chapman after his central role in January 6 plan became public.)

Now go back and read the news reports, you’ll have a better perspective, having heard another side of the story.

Filibuster again protects democracy

Yesterday, after the Senate parliamentarian did her thing, it was put to a vote whether private insurance companies would also be required to cap insulin payments at $35 a month (and presumably lose a mountain of money). 43 Republicans voted no, effectively a filibuster.

When the entire Inflation Reduction Act, the skinny, almost unrecognizable, reconciliation-ready version of Build Back Better ( filibustered quite effectively with the assistance of two rogue Democrats), came up for a vote, those same seven bipartisan Republican senators voted with the other 43 against the entire bill. That’s called party discipline and loyalty to an angry base.

So we wound up with a fraction of what the vast majority of Americans actually want, but it is much better than zilch. Until we can fix it, that’s democracy in the age of Koch, Trump, Barr and the likes of Ginni Thomas and friends like Mark Meadows and fervent midievalist [1] Snarlin’ Sam Alito.

That said, congratulations to us all and to this poor, magnificent earth we have long been such negligent stewards of.

[1] To save you a click on Google: One who sympathizes with the spirit and principles of the middle ages: often with the sense of one who is antiquated or behind the times.