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Through the Looking Glass of Trump Espionage Act Indictment
By Thomas Drake
Let me first take a moment to express my heartfelt appreciation for your continuing donations. I remain incredibly grateful for all your support since I announced earlier this year how I ended up dealing with a lymphoma cancer diagnosis last Fall. Health is stabilizing and longer-term prognosis is good. Seems the very expensive targeted capsule pills I take daily are really working! Have additional tests in late August and in September that will provide a progress check.
I’ve also provided a brief postscript at the end of this message regarding the very latest indictment of Trump that I plan on turning into a much longer essay I will share with you all in the September/October timeframe.
About Trump’s Espionage Act documents indictment:
The Espionage Act indictment of Trump looks remarkably similar to mine. As a former National Security Agency (NSA) senior executive turned whistleblower, I am reliving my own indictment by the Department of Justice (DoJ) during the Obama Administration in 2010.
It feels like I am viewing the Trump Mar-a-Lago indictment through the Overton window, but with reverse mirrors as his case brings the obscure, highly controversial, and draconian Espionage Act front and center into the mainstream.
However, a major problem with this strict liability law is that its use and abuse does NOT distinguish government insiders who take and keep classified or National Defense Information (NDI) outside of authorized channels for themselves (or sharing with foreign powers in order to harm the United States) — from those who disclose similar information with the press in the public interest in order to inform people about government wrongdoing, misconduct, criminality and violations of the Constitution or law.
Despite Trump defying and lying about the Presidential Records Act documents (including troves of national defense information packed in many dozens and dozens of boxes stored all over Mar-a-Lago, including some of the highest classified documents from his Administration), he was not charged with actual espionage, nor was I.
Unlike other Espionage Act defendants, Trump had several off ramps to return the remaining documents he was not authorized to keep, but refused. Yet it’s also clear that Trump obsessed over and hoarded all these documents as his precious curated mementos and crown-jewel classified keepsakes from his days as President.
Yet in the reams of documents he retained in all those boxes, their collective secrets hold both real value and the reflected glory of his former status as he literally mined and pilfered the priceless classified tokens of state power during his time in office.
He was not authorized to retain them but claims they are his. He flips the script on the use of the Espionage Act for anyone simply possessing closely held national defense or classified secret information. Yet Trump clearly displays an utter contempt for even the legitimate secrets of state and even a callous disregard for protecting them.
Trump as President had wide purview as the highest public executive official in the U.S. to handle or even mishandle classified/NDI as he saw fit, even when it was obviously reckless. He could also unilaterally and formally declassify (with some exceptions, like atomic/nuclear secrets). However, as a former President and private citizen it is a crime to mishandle classified/NDI — in effect violating what has turned into the U.S.’s de facto Official Secrets Act.
He did not keep those highly sensitive secrets to share in the public interest like a whistleblower, but rather for self-interest and personal pursuits as classified tchotchkes and memorabilia. In other words, he leaked to himself after collecting it all while President.
They are also not his boxes. They are the nation’s, and the custodian is the National Archives and Records Administration (NARA), but he resorts to denying, deflecting and delaying as much as possible as he is increasingly boxed in by existing law and the U.S. criminal code.
The deep irony is that the Espionage Act in its contemporary use since Pentagon Papers whistleblower Daniel Ellsberg — with respect to the unauthorized retention or dissemination of classified/NDI — can’t tell Trump or a whistleblower like me apart, let alone the difference.
I could not just walk out of the NSA with all the classified I held in my former office. Under the purview of a security officer, I separated out personal and unclassified papers from the classified and was authorized to retain the unclassified documents and was approved for removal from NSA.
As a whistleblower, I exposed the pathologies of secret power engaging in violations of the Constitution as eyewitness to the epigenesis of the vast warrantless surveillance regime put in place right after 9/11 while also disclosing massive multibillion-dollar fraud and waste and critical 9/11 intelligence failures. I did eventually disclose to the press unclassified NDI-level exposures.
But Trump hoarded the privileges of power and the classified currencies of secret power for his own personal ends. All he had to do was give back what wasn’t his to keep. So he obstructed what he still kept from the government and hid it. I was accused of obstructing justice by virtue of having a shredder and a trashcan on my computer’s desktop.
Unlike me, Trump did not sign a Non-Disclosure Agreement (NDA) but the government alleged I was an “insider threat” — worse than a spy and one who put the national security of the U.S. in grave danger.
Yet in July 2018, Trump issued a statement saying that “as the head of the executive branch and Commander-in-Chief, he had a unique constitutional responsibility to protect the nation’s classified information, including by controlling access to it.” So he exempted himself.
Trump gives “insider threat” a whole new meaning as he gilds the classified lily in his diehard determination to retain and defiantly hoard all those classified documents. And yet unauthorized possession or dissemination to someone not authorized to receive it under the Espionage Act is a felony-level offense whether retained, disclosed to the press, or shared with foreign powers.
And yet the crime of mishandling classified information was a misdemeanor-level offense until 2018, when Trump signed a law increasing the punishment to a felony and punishable with up to five years in prison. Trump now faces a multitude of felony counts under the Espionage Act. Government also argued I had stolen allegedly classified government property because I had retained and not returned it, and did so for the purpose of disclosure.
I worked out a deal with the government as their case against me collapsed and pled out to a minor misdemeanor for exceeding authorized use of a government computer involving unclassified information in exchange for the government dropping all 10 felony counts against me, including five under the Espionage Act. I remained free with one year of probation and 240 hours of community service.
Trump was also offered a deal. All he had to do was return all the “missing” NARA-controlled documents that he took while President in his possession as a private citizen (including NDI and classified). Instead he chose to lie, obstruct and commit treachery against the United States.
Trump has received extraordinary preferential treatment, too. I was placed on a number of restrictions after arraignment (that included a mugshot and being fingerprinted). I could not travel outside the local area without permission from the court and government and my passport was confiscated. The U.S. government actually argued I was a flight risk and wanted to place an ankle bracelet on me, but the judge did not approve.
But Trump can’t handle the truth about retaining NDI in a blatantly unauthorized manner. In effect, Trump ordered the Code Red on himself and made his own brazen bed of classified lies and obstruction filled with his bright and shining secret toys to satisfy his extreme pathological narcissistic need for attention and validation. As a whistleblower I faced upwards of 35 years in prison as the government made it an Espionage Act national security crime to disclose and expose government state crimes and wrongdoing.
Trump had the power to disclose just about ANYTHING as President. But he didn’t — because sharing state secrets in public takes away their power, while keeping it secretly hoarded out of personal interest gives it power and largely explains why he wanted to keep them as glorified reflections of his former power when President.
Speaking of the Espionage Act — click here to see a recent interview of me by fellow whistleblower Jeffrey Sterling on the Progressive Hub Show.
Postscript: The very latest indictment of former president Trump highlights the real and present danger that Trump and his confederates present to the American form of democracy that remains in this country. His egregious actions after the 2020 election led to this four count indictment by the DoJ Special Counsel Jack Smith because it credibly accuses Trump of literally plotting through multiple schemes (including outright attempting to preclude the vote counting of non-whites) to undermine and subvert the peaceful transfer of power as part of a concerted coup plot to remain in power fraudulently and unlawfully, in direct violation of the Constitution and the special oath he faithlessly cast aside while he was still President of the United States. He makes Nixon look like a piker.
The stakes are that high as a direct existential threat to the Grand Experiment and the fate of the nation in his attempts to overturn the 2020 election leading up to his incitement of the violent 6 January 2021 attack on the US Capitol. We are fortunate that he did not succeed. He wanted to cling to power by hook or by crook despite losing the election in a mad rush to essentially overthrow constituted government and replace with a strong man fascistic autocratic form of retribution-driven government operating under his personal rule.
Given how much is at stake going into the 2024 election, I plan on expanding upon the very dark and brooding threat that Trump, his minions and personality cult-like followers represent to the future of the U.S. in my next message. Please stay informed and always remain ever vigilant!