Donald Trump: Poster Child for the Espionage Act

Will he be treated the same as those so charged before him?

By Jeffrey Sterling

It doesn’t take much to shock me, but that Donald Trump has been charged with violating the Espionage Act has me unequivocally astonished. I can’t say that I have many, if any commonalities with current or former presidents and I certainly take no pride in the shared tribulation I have with Donald.

It’s not so much the fact of someone being charged with violating the Espionage Act (a sad reality that is only increasing), it is that a former president has been so charged. This development has me thinking of the profound shock expressed as “Et tu Brute?” by Shakespeare’s Julius Caesar as he was being assassinated by the Roman Senate conspirators.

Whereas Caesar’s shock was founded upon being betrayed by one he trusted, mine is founded upon the seeming, at least initial, equal application of the Espionage Act rather than any associative sense of brotherhood. That Donald was charged with the same crime I was alleged has me pondering, “Et tu, Donald?”

But, just because there can be the perceived equal application of the Espionage Act with Mr. Trump’s indictment, it doesn’t mean the law and its application are legitimate. First and foremost, the Espionage Act is an unjust law that should be abolished. Its use to target and persecute whistleblowers like Daniel Ellsberg, Reality Winner, and John Kiriakou among others, essentially as spies, is overbroad and clearly beyond its original intent.

I have to agree with Trump’s attorney who said that the Espionage Act charge is “ludicrous.” The Act’s non-specific language creates an overly broad net that the government and the Department of Justice casts, unfettered in any direction it so chooses. How the Espionage Act is being used is ludicrous, but considering the DOJ’s track record in implementing the outdated law, it would have had a hard time NOT indicting Trump under it.

The similarities I and Donald share do not end with being indicted under the Espionage Act. Both his 38-count and my 10-count indictments concern elements of our alleged unauthorized conveyance of national defense information related to Iran. Iran has been an issue of national defense, actual or otherwise since at least 1979, and U.S. government hypersensitivity regarding that nation is as constant as the North Star.

For me, I was accused of leaking information related to Operation Merlin, a flawed CIA operation designed to thwart Iran’s nuclear weapons ambitions. For Donald, part of his indictment details his discussing a “highly classified” U.S. plan of attack against Iran. For comparison sake, the allegations against Trump are absolutely and significantly worse than anything I was alleged to have done. As president, Trump held the highest office of the land with essential authority over all classified information in the government.

I think it can be safely assumed that the documents he mishandled either are or can be labeled as being related to national defense which is usually at the heart of Espionage Act charges. His criminal mishandling of classified information can and should be considered a threat to national security given his former position and continued influence. Regardless, our tribulations are so unique that Donald and I could legitimately form a unique support group of two to lament, share, and grow from our experiences with national defense as it relates to Iran and being indicted under the Espionage Act.

Though there are definite similarities, I have to admit to no illusion that what Donald is experiencing bears any real-world resemblance to mine. Though having federal agents descend upon and search anyone’s home is an abrasive affair, and that was certainly my experience, it wasn’t so for Donald. In what was comparatively a congenial affair, the FBI convened at Donald’s resort club, Mar-a-Lago, and seized 11 sets of documents, some marked as classified/TS/SCI which are obvious indicators for top secret/sensitive compartmented information. No such documents were retrieved from my home.

Our arrests were also completely different. Donald was allowed to surrender himself to law enforcement and was placed under arrest. My experience was not as congenial. I was lured to my place of employment and ambushed by the FBI. I still feel the sting of that first instance of being shackled with handcuffs. Donald was spared that treatment. He was also spared having to spend any time behind bars, separately from his family and loved ones.

Donald is now, or should be, under the supervision of the federal probation office. I don’t know the terms of his supervision, but I do know there is at least one term that I’m quite certain he is fulfilling. Once I was released from confinement, the probation office levied numerous requirements on me for the privilege of not having to stay in jail pending trial. One of those requirements was that I had to look for work. I had, of course been fired by my then employer, but a condition levied by the honorable judge Leonie Brinkema of the Eastern District of Virginia in the 4th Judicial Circuit was that I could not return home, I had to stay in Virginia, a state I hadn’t lived in for more than a decade.

I certainly tried, but of course I couldn’t find a job in a state where I didn’t live and had no permanent residence. As a result, I endured much grief and the threat of being returned to the Alexandria jail. Unlike me, I do believe Donald has been able to fulfill this requirement, if it has been levied upon him. Donald is running for president. I can’t see much argument being put up that he’s not actively seeking employment. If I had only known it would have saved me the constant chastising from the probation office and prosecutors about finding a job.

Oh, and I certainly have to wonder if Donald is being drug tested. The honorable Brinkema in my case stated that she always requires drug testing, despite the fact that there were no indications of drug use in my past. The judge in Donald’s case should make the same requirement to match the other indignities I and anyone else who has been charged with violating the Espionage Act has had to endure.

This is all to say that I don’t really recognize the criminal justice system that Donald is currently dealing with. We were both indicted under the same law, but that is where the similarities end. I have not been able to say You too, Donald? with regard to his actual treatment after being indicted under the Espionage Act.

Given how Donald has been treated, the similarities between he and I after being indicted under the Espionage Act are really quite minimal, his criminal justice system is actually respectful to him as a human being. However, there is one aspect of the criminal justice system I faced that Donald should, if not must face, and that is prison. My experience and that of many others is that you cannot and in fact are not allowed to defend yourself against the Espionage Act. Donald should also face the same impossible task.

From its inception, the Espionage Act has become, through years of judicial deference and political indifference, a strict liability law. Black’s Law Dictionary defines a strict liability law as:

…a legal concept that holds a defendant responsible for their actions regardless of their intent at the time of the action. Strict liability is based on a duty to compensate for harms caused by an activity or behavior, rather than proof of negligence or intent to do harm.

The Espionage Act is a law that assumes guilt without proof. No whistleblower who has been charged under the Espionage Act has been able to defend their action with disclosures about why they disclosed alleged classified information. There is no such affirmative defense available to the accused. In addition, and even more effective against whistleblowers, the government is not required to prove the defendant acted with any intent to harm the U.S. national security or aid a foreign power.

Whistleblower or not, the Espionage Act is a law that no one can defend against. There have been few instances of an actual trial when the Espionage Act has been charged. For example, the Rosenbergs in 1950 were convicted, Daniel Ellsberg’s case was dismissed due to government misconduct, and Thomas Drake was allowed to plead to lesser charges after similar misconduct.

Indeed, most, if not all others result in a guilty plea and that in itself should be a testament to the unfettered power the government has when charging anyone with violating the Espionage Act. This is most likely the reason why the typical result in Espionage Act indictments is a plea and prison.

Most individuals charged with violating the Espionage Act have been whistleblowers trying to serve the country by revealing government illegalities (i.e. John Kiriakou and the torture program); Trump cannot claim any such motivation, not that it would matter. His mishandling of classified documents was completely self-serving and with a very real potential for those documents to wind up in the hands of purported enemies of the state. The overriding question has to be how Donald will defend himself against the Espionage Act when clearly it is not possible.

True, my experience is and has been an exception to the unfortunate rules of pleas or government misconduct, but exercising my right to a trial to defend myself against wrongful charges was no match against the Espionage Act. I faced a vengeful government with a free hand to try me without having to prove anything other than the fact that I was charged.

Evidence, a fair process, a fair and unbiased investigation and prosecution, and most importantly truth were of no concern, I was found guilty and sentenced to prison. Even a public trial, which is supposed to be the forum of innocence until proven guilty and where guilt is supposed to be proven beyond a reasonable doubt, is but a mere inconsequential nuisance to the Espionage Act.

If my Et tu Donald Brute? shock is to be validated, that is also the only real question left when it comes to Donald and his indictment. There really is no reason for the government to seek anything other than prison time for Donald. If Donald is going to face the same criminal justice system under the Espionage Act is yet to be seen despite the indications that his status does not place him above the law.

If Donald is to face the same legal system as I was persecuted under, the only remaining Et tu, Donald? for me will be when he is sentenced to prison. He has been charged with violating the Espionage Act. The end result must be a prison sentence for him as it was for me and the others who have been similarly charged.

The government could have taken the easy way out and not charged him with violating the Espionage Act as it did with General David Petraeus (among other honorable men) who also should have been a shining example of an equal application of the law, but at this point, it cannot.

The dogs of war have been unleashed and all that is left is for Donald to be carved like a dish fit for the gods, much as Caesar was.

Jeffrey Sterling is a former CIA case officer who was at the Agency, including the Iran Task Force, for nearly a decade. He filed an employment discrimination suit against the CIA, but the case was dismissed as a threat to national security. He served two and a half years in prison after being convicted of violating the Espionage Act. No incriminating evidence was produced at trial and Sterling continues to profess his innocence. His memoir, “Unwanted Spy: The Persecution of an American Whistleblower,” was published in late 2019. This essay, written for the RootsAction Education Fund, was distributed by the ExposeFacts program of the Institute for Public Accuracy.