OWhen FBI agents seized 11 sets of top-secret and sensitive documents from former President Trump’s Florida residence, Mar-a-Lago, according to a search warrant revealed Friday, it was an unprecedented moment, but one that could be traced to a law that is over a century old.
The warrant shows the agency is investigating whether Trump violated the Espionage Act of 1917. Senator Rand Paul, a Republican from Kentucky, was quick to call for the repeal of the law, dismissing it as obsolete. “The Espionage Act was abused from the start to imprison WW1 dissidents,” he tweeted. “It is high time to repeal this blatant affront to the 1st Amendment.”
But while the law – which was intended to prevent the illegal withholding of national defense information, which a foreign enemy could use to harm the United States – was passed during World War I, to crack down on people who criticized the war, NPR reports that lawmakers repealed the law’s strict censorship sections in 1920.
And it is perhaps not entirely surprising that the law finds a new spotlight today, at another time when fears of US treason are rife.
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As TIME has previously reported, World War I amplified xenophobia and fears that immigrants would inspire an uprising similar to the Russian Revolution, which began in 1917. In 1918, Eugene V. Debs, candidate for the presidency of the Socialist Party, was arrested and sentenced under the spy regime. Facing 10 years in prison after being charged with giving a speech intended to cause ‘disloyalty’ and ‘insubordination’.
“There was a crackdown on dissent, and a simple criticism of the government was enough to land you in jail,” said Christopher M. Finan, author of From the Palmer Raids to the Patriot Act: A History of the Fight for Free Speech in America, said TIME.
After the war, a combination of job losses and high inflation only heightened these fears, and employers were on heightened alert to Communist infiltration when more than 3,600 workers went on strike in 1919.
Prosecutions under the Espionage Act have been relatively rare. Notable uses of the law include the 1957 arrest of Colonel John C. Nickerson Jr., “the first American to be prosecuted for leaking top secret national security information to the press”, according to historian Sam Lebovic. . As Lebovic detailed in an article for Policy, Nickerson oversaw a missile program and agents discovered unsecured classified documents in his home in Huntsville, Alabama. In the 1970s, Daniel Ellsberg was charged under the Espionage Act for leaking Pentagon papers, but a judge dismissed the charges.
In 2017, the Wikileaks document dumps sparked a conversation about the Espionage Act, and the Congressional Research Service outlined the main uses of the law throughout American history, stating, “Historically, the Espionage Act and other relevant statutes have been used almost exclusively to prosecute (1) persons with access to classified information (and a corresponding obligation to protect it) who make it available to foreign agents, and (2) foreign agents who illegally obtain classified information while in the United States.
The Obama administration has used the Espionage Act more than any other presidential administration, with federal criminal charges filed against eight whistleblowers, including Chelsea Manning and Edward Snowden.
The Trump investigation would represent the first time that someone who served as president was investigated on the Espionage Act.
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