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The concerns that have led civil liberties and press freedom groups to fear and condemn the Espionage Act, including it being used to target journalists like Julian Assange, simply aren’t present here.
The revelation that the Justice Department is investigating former President Donald Trump for violations of the Espionage Act has provoked a new wave of criticism of that century-old law, with some calling on Congress to narrow the law and at least one senator declaring that it should be repealed altogether. There are in fact very good reasons to criticize the Espionage Act — a law that has cast a dark shadow over free speech and press freedom in this country since its passage — and compelling reasons why Congress should overhaul it. That the law is being used against Trump, however, isn’t one of them.
This much the law’s new critics have right: The Espionage Act is wildly overbroad. We know this from experience. Former President Woodrow Wilson signed the measure into law in 1917 and immediately began using it as an instrument of political repression. During and after the First World War, his administration used the Espionage Act to prosecute thousands of people for legitimate political speech. One of those people was the socialist and labor activist Eugene Debs, who was sentenced to a decade in prison for an anti-war speech that allegedly obstructed military recruitment. (It’s perhaps worth noting, given questions about Trump’s future, that Debs later ran for president from his prison cell.)
Congress amended the Espionage Act after the Second World War, but the amended law, like the original, criminalizes a wide range of activity bearing little resemblance to espionage as the term is usually understood.
A major problem with the law is that it fails to distinguish, on one hand, government insiders who share national security information with foreign powers in order to harm the United States, from, on the other hand, those who share information with the press in order to inform the American public about government misconduct and criminality. After 9/11, successive administrations exploited this defect, using the law again and again to prosecute whistleblowers who shared information with reporters. These prosecutions — of Chelsea Manning, Terry Albury, Reality Winner and Daniel Hale, among others — had the effect of discouraging other insiders from sharing information with the press, of limiting the public’s access to vital information about foreign policy, counterterrorism and war, and of consolidating government control over public discourse on those topics.
Another major problem with the law is that, on its face, it criminalizes the publication of national security information not just by government insiders but by others as well. It was this aspect of the law that led two prominent legal scholars to characterize the Espionage Act, 50 years ago, as a “loaded gun” pointed at the press, and that more recently has led press freedom groups (including the Knight Institute, which I direct) to decry the Biden administration’s prosecution of Julian Assange. The truth is that it would be absolutely impossible for the press to do its job if it couldn’t publish government secrets, as the journalist Max Frankel famously observed. (Imagine what the debate about counterterrorism policy after 9/11 would have looked like without the reporting about Abu Ghraib, the CIA’s black sites, the torture memos, the warrantless wiretapping program or the drone campaign.) And whether or not Julian Assange is fairly characterized as “the press,” the government’s effort to prosecute him relies on a legal theory that could as readily support a prosecution of the New York Times or the Wall Street Journal.
So the Espionage Act is overbroad in important respects. In some of its possible applications, the law is probably unconstitutional, too. But what does any of that have to do with Trump? Not much.
Trump isn’t a whistleblower or reporter or publisher. There is no serious argument that he retained top secret records so that he could inform the public about government misconduct. The concerns that have led civil liberties and press freedom groups to fear and condemn the Espionage Act simply aren’t present here. Indeed, if the facts are essentially as the Justice Department asserts them to be — that Trump left the White House with scores of top-secret documents, that he failed to adequately secure them, that he refused to return them even after receiving a request from the National Archives and Records Administration and a subpoena from the Department of Justice — even a substantially narrowed criminal regime that better accounted for the First Amendment interests of whistleblowers, journalists and the public would almost certainly reach the conduct that Trump is said to have engaged in here.
All of this said, the Espionage Act’s new critics are right that the law should be amended, even if they are wrong about why. And perhaps we can hope that the attention they are drawing to the law will inspire legislators to do what they should have done many years ago.
Some promising proposals have already been introduced, backed by the left and right. A bipartisan bill unveiled just a few weeks ago by Rep. Ro Khanna (D-Calif.), Rep. Thomas Massie (R-Ky.) and Sen. Ron Wyden (D-Ore.) would narrow the Espionage Act to protect journalists and publishers. A proposal from Rep. Rashida Tlaib (D-Mich.) would give defendants charged under the law an opportunity to make the case to a court that their actions were justified. (I advocated for something similar here.)
These kinds of proposals would perhaps not satisfy the Espionage Act’s new critics, at least some of whom seem to be motivated by fealty to Trump rather than actual principle. But by enacting them, or a version of them, Congress could reaffirm press freedom and the public’s right to know at a moment when those things could hardly be more important to our democracy.
As the coronavirus continues to spread, and the United States climbs closer to 1 million cases and nearly 60,000 deaths, we face an unprecedented economic and health care crisis that demands an unprecedented response. While we work toward an economic solution that keeps people on the payroll, Washington is also in the midst of a crucial argument over how to help cover the costs of testing, treatment and all other essential care for the millions of people who are now uninsured or soon will be as the country faces record levels of job loss. This pandemic makes even more clear that we are all only as safe as the least-insured in our country.
Last week, the White House said it would give an unspecified amount of federal aid directly to hospitals to cover the costs of treating uninsured Covid-19 patients, but details have not been released, and the proposal leaves out all non-Covid-19--but still crucial--medical care. The week before, a handful of Democrats proposed spending hundreds of billions of dollars on expanding subsidies for COBRA--the program that allows those who have lost their jobs to continue, on a temporary basis, paying out-of-pocket for the health insurance coverage they received from their previous employer.
Under this proposal, everyone in the United States, regardless of insurance coverage or immigration status, would be able to walk into a doctor's office to receive the care they need without worrying about the cost.
There is no doubt that the health care crisis we are facing right now is an emergency. Already, an estimated 9.2 million workers have lost their employer-sponsored insurance, and as many as 35 million people might lose coverage by the end of the crisis. Meanwhile, the cost of hospital treatment for the coronavirus amounts to tens of thousands of dollars, and patients struggling with the disease are desperately worried that they cannot afford treatment or might go bankrupt if they get it. To make matters worse, some of the communities hit hardest by the coronavirus, such as the undocumented, largely do not have any health insurance coverage at all.
Yet, unbelievably, in the midst of this horrific pandemic, Republicans in Congress have only continued their cruel and single-minded focus on repealing the Affordable Care Act. Further, Republican governors, like Greg Abbott in Texas, continue to fight against Medicaid expansion, leaving many of the most vulnerable people in their states desperate and sick.
While almost all Democrats understand the severity of the crisis and the need to act, too many of them are proposing a totally inadequate response that would simply lock in place the dysfunction and waste of our current health care system.
Expanding COBRA during the pandemic would do nothing to cover those who already lacked insurance. It also won't help the many Americans who continue to receive employer-provided health care but are still prevented from going to the doctor by massive deductibles and co-pays. In fact, the average family with employer-provided insurance faces $4,700 in out-of-pocket costs every year. The deductible alone for the average low-income worker is $2,600 a year. Maintaining the status quo does nothing to address these extraordinary costs, made worse during the pandemic economy.
Further, COBRA subsidies will only cement the inequities of our current health insurance system. Right now, low-wage workers are, on average, enrolled in plans with low premiums but higher deductibles. On the other hand, higher-wage employees, often professionals, have platinum plans with much higher premiums and far superior coverage. Expanding COBRA, which subsidizes only premiums, would treat high-income workers who lose their jobs far better than low-wage workers who do, even though the latter have suffered the brunt of the economic damage wrought by the pandemic.
The Health Care Emergency Guarantee Act would treat all people equally. For the duration of this crisis, under the act, Medicare will cover all medically necessary health care, including prescription drugs, for the uninsured, whether those who have recently lost their jobs or those who have been long without insurance. It is simply irresponsible and dangerous to the public to allow millions of people in this country to go without health coverage as a pandemic rips through our communities.
Medicare, under our plan, would also temporarily cover the copays, deductibles and other out-of-pocket costs for all medically necessary health care for those who are already insured. Here is how this simple and efficient plan would work: When people go to the hospital or doctor, they provide their insurance information. If they have insurance, their provider will bill Medicare for the out-of-pocket costs; if the individual is uninsured, the provider will bill Medicare for the entire cost of care. The patient will not be forced to pay any bills for their treatment.
This proposal would prevent insurance companies from decreasing coverage and ban surprise billing so patients don't get unexpected charges later. It would also prevent price gouging by pharmaceutical companies by making sure the government pays the same lower price for prescription drugs as the Veterans Health Administration.
Allowing Medicare to cover out-of-pocket health care expenses during the pandemic isn't just the right thing to do, it's actually less expensive for taxpayers because, unlike COBRA, the government would not be covering the cost of expensive monthly premiums to insurance corporations.
The numbers make this clear. If 35 million Americans lose their employer-provided coverage, as estimated by Health Management Associates, subsidizing premiums to health insurance corporations through COBRA would cost $157 billion over four months, or as much as $472 billion over a year. And even then, these figures don't include the outrageously high deductibles that many people would still have to pay. Meanwhile, the conservative Committee for a Responsible Federal Budget estimates that allowing Medicare to cover out-of-pocket expenses for everyone would cost around $150 billion over four months, or only $400 billion over a year. In other words, the Health Care Emergency Guarantee Act provides comprehensive coverage to far more Americans while saving taxpayers money.
The American people deserve a health care response to the pandemic that's simple, easy to understand and doesn't require them to fill out complicated forms or deal with an already stressed bureaucracy in order to receive care. Under this proposal, everyone in the United States, regardless of insurance coverage or immigration status, would be able to walk into a doctor's office to receive the care they need without worrying about the cost.
At a time when many American families are waiting hours in food lines and are often unable to afford groceries, whatever amount of money is left in their pocket must be saved for the basic needs of their families, not exorbitant health care bills. When so many of our people are struggling economically and are terrified by the possibility of becoming sick with the coronavirus, the government must take the burden of health care costs off the backs of working people. The Health Care Emergency Guarantee Act would do just that.
As the Federal Bureau of Investigation reopens its background check investigation into Brett Kavanaugh, the scope of its review must go beyond the serious allegations of sexual assault made by Christine Blasey Ford and Debbie Ramirez.
For its investigation into Kavanaugh to be comprehensive, the FBI must also get to the bottom of what "boofing" means.
The term was one of several, raunchy references in Kavanaugh's high school yearbook. When questioned at last week's hearing about the exact meaning of these inside jokes, Kavanaugh conveniently had an innocent explanation at the ready for each. None, however, was credible.
"Devil's Triangle"? Kavanaugh said it was a drinking game, not the sexual reference that a simple Google search suggests.
"Ralph Club"? That, Kavanaugh said, referred to how his weak stomach often could not handle spicy food, not vomiting caused by excessive drinking.
And "boofing"? Kavanaugh said it referred to "flatulence." The answer prompted laughter in the hearing room, and Kavanaugh leveraged the moment to try to belittle the entire line of questioning. "You want to talk about flatulence at age 16 on a yearbook page?" he sneered at Sen. Sheldon Whitehouse (D-R.I.). "I'm game."
Under normal circumstances, Kavanaugh might be right to consider it overreach for the world's most deliberative body to be grilling a Supreme Court nominee about crude jokes in his high school yearbook.
But in Kavanaugh's case, the yearbook references are relevant. Since facing sexual assault allegations, Kavanaugh has tried to cast himself as a choir boy during his high school and college years, stressing his time spent attending church and performing service projects. But the yearbook offers a glimpse of the Kavanaugh that Blasey Ford and Ms. Ramirez remember - a young man who drank to excess and found humor in the disrespecting of women.
Kavanaugh's answers to the Senate about the meaning of these yearbook references defy credulity--and directly undermine his credibility. They suggest he is unwilling to admit the truth about even the smallest of matters.
In another such instance that arose during his Senate hearing, Kavanaugh was asked about a reference to a female friend, Renate Dolphin. Kavanaugh called himself a "Renate alumnius" in his yearbook, seeming to imply that he had slept with her. That, at least, is how Dolphin interpreted it. Upon being shown the yearbook in recent days, she declared herself betrayed and hurt by the false inference Kavanaugh was making.
But when quizzed about it, Kavanaugh did not own up to making a cruel joke at Dolphin's expense. Instead, he claimed the reference was entirely innocent. It simply conveyed she was part of his social circle, he said, and he blamed the media for mischaracterizing it as a reference to sex.
The answer, like the others, just didn't pass the laugh test.
Here is where the FBI should come in. As part of its probe this week, the FBI must obviously seek to get to the bottom of the highly credible allegations made by Blasey Ford and Kavanaugh's other accusers.
There is a chance the FBI might uncover additional evidence or testimony that further corroborates these women's claims. But if not--especially as reports suggest that the White House is narrowing the scope of the probe and hamstringing investigators' ability to get to the truth of these allegations--the FBI still must examine Kavanaugh's credibility and candor.
FBI agents will not provide a conclusion or judgment about Kavanaugh's credibility, but they can--and must--look to his Senate testimony and present senators with evidence that refutes or corroborates it.
For example, FBI investigators should ask Kavanaugh's football teammates--many of whom also dubbed themselves "Renate alumni" in their own yearbook entries--exactly what the reference meant. They should ask Kavanaugh's friend Mark Judge, whose yearbook entry also referenced boofing, if he agrees--under oath--that it means what Kavanaugh said it does. They should find the friends who supposedly played "Devil's Triangle" with Kavanaugh.
Regardless of whether such petty lies could ever to amount to perjury, they provide glimpses into Kavanaugh's character and candor. As Kavanaugh well knows, in our legal system, even small lies matter. In jury trials, there is a standard instruction to jurors that if they conclude a witness is lying about any matter, they have the right to dismiss that witness' entire testimony as potentially untruthful.
Kavanaugh's own mother was a judge, and he has described her judicial philosophy as this: "Use your common sense, what rings true, what rings false."
Senators weighing Kavanaugh's fate should apply the same standard. To date, many of them have tried to dismiss Blasey Ford's allegations as a case of "he said, she said." But any proof that Kavanaugh lied under oath should cause senators to err on the side of believing her over him.
Furthermore, anyone prone to such casual lying is not fit to serve a lifetime appointment on the nation's highest court.
After all, if Kavanaugh can't be trusted to tell the truth about even the minor stuff, why should we trust him on anything else?
The FBI issued an extraordinary statement on Wednesday, pushing back on the release of a partisan congressional memo alleging the bureau used improper evidence to obtain legal permission to surveil a Trump campaign adviser. We've never seen anything like it. "[T]he FBI was provided a limited opportunity to review this memo the day before the committee voted to release it," the bureau said. "As expressed during our initial review, we have grave concerns about material omissions of fact that fundamentally impact the memo's accuracy."
The memo, written by Congressman Devin Nunes and barreling toward public circulation at the president's discretion, has already created a firestorm, and it is not even out yet. Nunes fired back at the FBI hours later, claiming, "It's clear that top officials used unverified information in a court document to fuel a counterintelligence investigation during an American political campaign."
Let's be clear about what's happening here: This memo is the latest escalation in an eight-month effort to tarnish the Russia investigation that might be the most significant smear campaign against the executive branch since Joe McCarthy--only here, the effort is being led by the head of that branch himself. As the New York Times reported, the Nunes memo seems like a dagger aimed by President Trump at Deputy Attorney General Rod Rosenstein, who is supervising the Russia probe for the Justice Department.
Republican huzzahs over Special Counsel Robert Mueller's appointment were still echoing when the opening salvo of this shocking campaign was launched: the claim that Mueller had disqualifying "conflicts." Never mind that the Justice Department cleared Mueller of conflicts before he was appointed. Or that ethical standards do not remotely support disqualification over issues like Mueller's professional acquaintance with James Comey, his employment at a firm that represented Trump associates, or even a long-ago dispute over the amount of fees Mueller owed at a Trump golf course. These meritless conflicts claims have continued to resurface like a game of whack-a-mole, popping up elsewhere after they are knocked down.
The next smear targeted the members of Mueller's team. President Trump and his supporters loudly complained of political bias because some of Mueller's lawyers have donated to Democrats. But Mueller is prohibited from asking his hires about their political contributions; applicable laws and regulations bar him from considering such matters in making employment decisions. Moreover, Mueller himself was a registered Republican the last time anyone checked and was appointed by another: Rosenstein.
When that assault didn't stick, then came the allegation that the investigation had improperly obtained emails from Trump transition email accounts. The initial flurry of attention--including mention by the president himself--soon faded when the General Services Administration said the transition had been told its emails would not be protected, and experts nearly unanimously dismissed any impropriety. Indeed, the claims turned out to be so weak that President Trump's transition legal team didn't even press them in court, instead settling for a complaining letter to Congress. When faced with resounding pushback, the reply was to slink away--but not before filling the airwaves with days of unfounded insinuations.
That was when the president and his supporters upped the ante. For a time, there was a focus on sensational claims about the conduct of two DOJ employees as evidence of anti-Trump bias. One was Peter Strzok, an FBI specialist in Russia matters who sent negative texts about Trump to a colleague. The other is Bruce Ohr, a career attorney at DOJ who was never assigned to Mueller's team and whose wife worked for Fusion GPS--the firm behind the dossier compiled by former British intelligence officer Christopher Steele (more on that in a second). Here too, the facts proved inconvenient: It turned out Mueller axed Strzok from the investigation when the texts came to light, and Ohr was reassigned after DOJ learned that he had failed to disclose contacts with individuals at the firm. (Then there is today's news that Strzok co-authored the pre-election FBI letter that many believe sunk the Clinton campaign--hardly proof of pro-Clinton bias.) The fact that Strzok and Ohr were reassigned and are now the subjects of internal DOJ investigations is a sign that the system is working, not that it is broken.
Nevertheless, the escalation continued even after the reassignments. The Trump spotlight turned to the Steele dossier, commissioned by an opposition research firm funded first by Republican opponents of Trump and then by representatives of the Clinton campaign. We haven't read the Nunes memo, but Republicans have been whispering for weeks that the dossier served as the basis for the FBI's Russia investigation and therefore tarnishes it.
Once again, the facts get in the way. Fusion GPS founder Glenn Simpson, who hired Steele, testified to Congress that the FBI believed the dossier to be credible "because they had other intelligence that indicated the same thing and one of those pieces of intelligence was a human source from inside the Trump Organization." News reports indicate that the FBI had many other leads when it launched the investigation. These included a tip from Australian intelligence and the hacking and publishing of emails from the Democratic National Committee.
That brings us at last to Representative Nunes. His contribution to all of this is a memo that claims the FBI improperly obtained authorization to conduct surveillance on Trump campaign advisor Carter Page. Democrats on the committee unanimously opposed its release, asserting its claims of wrongdoing are unfounded and out of context and its release endangers our national security. Indeed, Trump's own Justice Department objected to its release as "extraordinarily reckless," and his handpicked FBI director reportedly trudged to the White House to voice his firm objections--before his bureau's formal objections were made public on Wednesday. Just like the other smears that preceded it, this latest one completely lacks credibility.
All this has built steadily toward a crisis for American democracy--a Saturday Night Massacre in slow motion. Press reports suggest the president may be contemplating using the memo to dismiss Rosenstein. That matters: If the president were to use his powers to insert someone lacking independence, that person could throttle the special counsel.
That move would, however, risk deepening the president's obstruction of justice liability, and that of those around him who are involved in the decision. After all, firing Comey on dubious grounds with the alleged intent to hamper the Russia investigation led to an obstruction investigation. Cashiering Rosenstein would offer a matching bookend. That is particularly so in light of another startling report today: that the president sought details about the Russia investigation from Rosenstein, then asked him, "Are you on my team?" This echoes Trump's demand for loyalty from Comey that helped kick off the obstruction investigation.
Rosenstein's failure to provide sufficient answers has put his head on the chopping block, with the president reportedly preparing to use the memo as a pretext. This targeting of the deputy attorney general also makes clear the larger motivations of the smear campaign. It is plainly obstructive of the Russia investigation. From Trump on down, the hope seems to be that the best defense will prove to be a good offense. This is exactly the playbook Trump used to run when he was a slick up-and-coming Manhattan developer taking advice from the late Roy Cohn: attack, attack attack. But this is the presidency, and Trump has failed to learn the lesson of Cohn's previous client and patron, Joe McCarthy. It's not going to go the way he thinks.