Many Americans would just love to throw the book at Donald Trump, perhaps the most polarizing person in American history. Any book would do. Preferably, a heavy one—but what most have in mind is a law book that comes with prison time and a lifetime ban from public life.
His presidency started with a Justice Department inquiry into his possible involvement with Russian meddling in the 2016 election that catapulted him into the White House. Another investigation has commenced regarding the January 6 insurrection and an alleged plot to overturn the 2020 election, keeping him in the Oval Office.
After two Senate impeachment trials, a criminal prosecution against the Trump Organization still ongoing in Manhattan, a civil case brought by the New York Attorney General into Trump’s business practices, and a criminal probe in Georgia that involves alleged election tampering, one wonders how Trump has managed to accomplish anything while being so relentlessly preoccupied with legal matters.
So far, not a single one of those legal actions have yielded a criminal conviction or civil penalty against the former president.
Yet, Trump might end up being better known as an American defendant than president. His post-presidency continues to be mired in legal entanglements. There’s never a dull moment on the Trump docket sheet.
We now have an FBI search of his very own Shangri-La, called Mar-a-Lago, to retrieve classified, top secret, special-access-only documents that should have been left with the National Archives and Records Administration and might pose a national security risk while in his possession. No former president has ever had his personal residence raided, or searched, and possibly subject to criminal charges of any kind.
Naturally, the president’s many supporters—at least half the country—are wondering about the double standard. Hillary Clinton’s private server, used to send and receive thousands of classified emails while she ran the State Department, apparently presented no threat to the nation and warranted no prosecution. The Hunter Biden laptop, and what it might reveal about influence peddling with foreign entities and associated benefits to his father, has sparked little interest from the Justice Department.
Entering the president’s home without his permission. Rifling through his personal effects. Removing documents that may be personal or subject to executive or attorney-client privilege. Trump and his lawyers maintain that they were in continuous contact with the National Archives and had already returned 15 boxes, containing 100 classified documents, back in January.
A heavily redacted affidavit in support of the search, which was publicly disclosed last week, answered no real questions about this unprecedented action.
The Attorney General has intimated that the mishandling of these sensitive materials didn’t just overstep the Presidential Records Act, which is not a crime, but possibly violated the Espionage Act of 1917. This would be the most severe crime of all—a singular act of disloyalty possibly causing irreversible damage to America’s national security.
Criminal charges of this nature would reduce all other legal challenges to mere misdemeanors. After all, if the Espionage Act had been passed by the Continental Congress, Benedict Arnold would have been convicted and received the death penalty, had he not absconded to England during the Revolutionary War.
In more recent times, the leaking of state secrets is the reason why Chelsea Manning, Edward Snowden and Julian Assange were charged with violating the Espionage Act.
The Act was created shortly after the start of World War I to prosecute those who interfered with military operations and recruitment. The law has since been applied to punish insubordination, disloyalty and, most crucially, providing material support to America’s enemies.
Along the way, the Espionage Act clashed with the First Amendment. The freedom to express an opinion might be judged to interfere with the national defense. Supreme Court Justice Oliver Wendell Holmes’ “clear and present danger” test arises from just such a case, one in which the Espionage Act prevailed over the First Amendment.
Avowed socialists such as Eugene V. Debs and the Soviet-sympathizing magazine, The Masses, ran afoul of the Espionage Act. The Red Scare put a good many allegedly subversive Americans either in jail, or had them deported, under the law.
Discussions about “subversives” have been an especially delicate subject for American Jews. From the earliest days of the Espionage Act, Jews found themselves implicated. In addition to Emma Goldman, who was deported to the Soviet Union, Julius and Ethel Rosenberg were executed for passing atomic secrets to the Soviets (it appears that Ethel was completely innocent of the crime); Morton Sobell and David Greenglass (Ethel’s brother) were imprisoned on similar charges; two lobbyists from AIPAC and Jonathan Pollard, in separate incidents, were indicted and imprisoned for disclosing national defense information to Israel; and, most recently, an FBI translator, Shamai Leibowitz, faced legal jeopardy under the Espionage Act.
Some possessed special military information and wished to provide Israel with a qualitative edge in its own national defense. That, of course, raises the specter of “dual loyalty.” The earlier cases evoke the Jewish flirtation with socialism. For those who wonder what possible appeal the Squad and Bernie Sanders could have to American Jews, it’s worth recalling the long history of radical politics among Jews on the hard left.
Sometimes the cause was worthy of democratic ideals. For instance, many Jews tested the limits of the First Amendment—six of the 10 blacklisted McCarthy-era scriptwriters known as the Hollywood 10, and scores of TV and film actors, writers and directors suffered the consequences of their beliefs and were professionally ruined, with some landing in jail.
In an early and pivotal Espionage Act case that went before the Supreme Court, Abrams v. United States, all six defendants were Jews who distributed leaflets in Yiddish supporting the Russian Revolution and opposing America’s entry into WWI.
There’s a big difference between lawful political association and assembly—activities protected under the Constitution—and clandestinely serving as an agent of a foreign government.
No charges have yet been filed against Trump. Is he simply in possession of top-secret documents—without evidence that he either attempted to destroy or disseminate them? All throughout his sordid life, Trump has shown himself to be impulsive, reckless, irresponsible and implacably defiant of rules and protocols. That’s not the same as being a spy or spilling secrets, which is usually how the Espionage Act has been deployed.
American Jews surely should know the difference.
Thane Rosenbaum is a novelist, essayist, law professor and Distinguished University Professor at Touro College, where he directs the Forum on Life, Culture & Society. His latest work, “Saving Free Speech … from Itself,” was just published. He can be reached via his website.
This article was first published by the Jewish Journal.