Thread by @CareyShenkman

THREAD 1/I've co-authored a forthcoming book on the Espionage Act + free speech, testified as an expert witness on the Act and quoted in Post etc on it - happy to interview on/off record (DM, carey [AT] cshenkman.com).
press.uillinois.edu/books/?id=36gm…

2/The Espionage Act is a convoluted and contentious law. The leading legal article on it is over 100 pages long, so it's okay for journos if it's a head scratcher. That said, Trump warrant *could* be a canary in the coalmine for critical, imminent free speech battles in the US.

3/"Huh? What does Trump getting raided have to do with free speech?"

4/If process vs Trump escalates, we *could* see a possible legal showdown on Esp Act Section 793. We don't get a lot of those. It could have implications for other gov employees AND the press, depending which parts of 793 are implicated (we don't know yet, but can guess).

5/We haven't seen recent, significant federal appellate review of Section 793. Appellate review tends to get denied. There was Morison (4th Cir. 1988), and Chelsea Manning's appeal (2018, army appeal and limited as federal precedent).

6/There was 4th Cir review on evidentiary points in Jeffrey Sterling's case (alleged to be James Risen's source, and implicating reporter's privilege). Individual SCOTUS justices looked at the Act in dicta in the Pentagon Papers case (1971), but that involved prior restraint.

7/If it involves 793(d), could impact gov officials AND the press, as those outside gov have been charged as accessories (AIPAC case, theory in Assange case). Journalist James Rosen's gmail account was searched under 793 as an "aidor/abettor" to alleged source per FBI affidavit.

8/The Act covers way more than "espionage" as commonly considered, and can cover more than gov officials lawfully holding docs/info.

9/Section 793 broadly conflates three categories of individuals that scholars have argued for decades should be separated: 1) classic spies; 2) members of government; 3) journalists/general public. Notably, "espionage" only applies to the first bucket.

10/Some key questions: a) are we just talking about 793(d)/(f) (lawful possession)? b) were docs shared w/ someone not entitled to receive them? c) was a demand made on Trump for return by a US gov employee? d) Trump prob didn't move boxes himself, were other officials involved?

11/Applicability to Trump doesn't turn on classification, but the nature of docs/info, as provisions of Section 793 don't have a classification element (Section 798 does). And "national defense information" has been interpreted by courts to be quite broad.

12/If I've learned anything researching and writing on this over the past decade + examining countless records of past DOJs/administrations, it's that Espionage Act investigations, particularly of gov officials, are heavily selective and politicized at the highest levels.

13/This is because countless "violations" of the Act occur almost every day in Washington, as part and parcel of the way politics and media work (i.e. the source of any scoop by the NYT related to national security).

14/That all said, the political barometer here is more interesting. If this escalates and proceeds to (potential) SCOTUS review, what would this Court have to say about the Act, fifty years after Pentagon Papers?

15/That last point could give insight of tremendous implication for not just gov officials, whistleblowers, but also the media. Unfortunately, we may see the Act apply increasingly to the media, which could be tested to unprecedented effect in the Assange case.

16/So, we may learn how aggressively the DOJ is pursuing Act cases (as a matter of policy) and *maybe* how SCOTUS feels about the Act. Depending how it shakes out, it could be bad. I cheer holding Trump accountable, but don't think the Espionage Act is the hill to do it on.

Coda: There would be a LOT that needs to happen before court review, most of it unprecedented (though to be fair, we are already in unprecedented territory).