Sen. Rand Paul Proposes Dumping Entire Espionage Act

The law has been abused to prosecute citizens for reasons other than spying. But there are better examples than Trump to highlight problems.

In the midst of the raging political bonfire over the FBI search of Mar-a-Lago to find classified documents former President Donald Trump allegedly took with him when he left office, Sen. Rand Paul (R–Ky.) proposed on Twitter Saturday the complete repeal of federal espionage laws.

"The espionage act was abused from the beginning to jail dissenters of WWI. It is long past time to repeal this egregious affront to the 1st Amendment," Paul wrote.

Paul's tweet links to a 2019 piece by libertarian Jacob G. Hornberger, founder and president of The Future of Freedom Foundation, noting the checkered and politicized past of the Espionage Act of 1917. Hornberger's piece is not directly about Trump but rather a response to the continued U.S. prosecution of WikiLeaks founder Julian Assange.

Nevertheless, while Paul didn't explicitly mention Trump, his tweet can easily be linked to the debate over whether Trump could or should be subjected to prosecution for violating federal espionage law for mishandling classified documents.

Paul was traveling in Kentucky today and was unable to reply to a request from Reason for a comment.* However, he was asked about his tweet during a stop, and his office emailed Reason a partial audio clip of his response. He explained that for a good chunk of history the Espionage Act was used to arrest and jail anti-war advocates and socialists during World War I, and even though he was no fan of socialists, he supported their right to free speech.

"We have had people who have been whistleblowers," Paul continued. "Probably the most well-known whistleblower we've had is Edward Snowden.… He showed people that the American government was breaking the law, that they were retrieving all of our information. And so for a long time, I thought the Espionage Act is something that could be used to stifle dissent and freedom of speech."

Paul has been a longtime critic of how federal surveillance and espionage laws are misused to target American citizens for inappropriate purposes. Still, calling for the entire repeal of the Espionage Act seems to be new ground for Paul. When Snowden fled to Russia to avoid potential arrest and prosecution for leaking classified evidence showing that the National Security Agency was secretly collecting the communications metadata of U.S. citizens, Paul stopped short of praising Snowden as a big hero, though he appreciated the information that Snowden brought to light. In an interview with Reason in 2015, Paul said that Snowden should face some sort of punishment for breaking the Espionage Act, stopping far short of fellow Republicans (and Trump) who accused the whistleblower of treason.

Both Paul's and Trump's opinions on Snowden changed in 2020 after the president's own experiences with federal surveillance. Trump flirted with the idea of pardoning Snowden, and Paul openly supported it, reversing his former position. Ultimately, Trump would leave office without extending the pardon, leaving Snowden to become a Russian citizen rather than return home.

Under Trump, whistleblower Reality Winner was prosecuted and sentenced to prison under the Espionage Act for passing along to the press classified documents detailing how Russian hackers attempted to break into U.S. election systems in 2016 to potentially manipulate the outcome. The documents did not implicate Trump or his campaign in any way. Regardless, there isn't an exception in the Espionage Act for leaks that are in the public interest.

Whistleblower Daniel Hale was also arrested and prosecuted during the Trump administration for leaking documents showing how the U.S was killing innocent civilians overseas with drone strikes. He is currently serving a 45-month sentence. We may believe that the purpose of the Espionage Act is to fight foreign spies, but its scope is much broader and thus deserving of criticism.

The Washington Post noted last week that Trump signed into law in 2018 a bill that increased the potential sentence for the absconding of classified material from a maximum of one year to five years. The Winner prosecution and Trump's approval of harsher penalties under the Espionage Act perhaps can be seen as evidence that Trump wants more special treatment for himself than the presidency actually allows.

While Paul hasn't spoken much about the prosecution of Winner and Hale (his official website comes up blank with any reference to their names), he did vote against the above bill that Trump signed. His opposition to harsher Espionage Act penalties shows that there's some consistency in his positions.

Consistency aside, though, there's absolutely zero chance that the Espionage Act will be repealed as a whole. It's very likely that most Americans want the federal government to be able to prosecute spies that provide or sell state secrets to foreign governments.

But the bill can be reformed to restrain some of the awful excesses. In fact, a small group of lawmakers is attempting to do so right now, adjusting it so that it does not apply to journalists and will allow whistleblowers to turn to government officials to point out abuses without risking prosecution.

The bill has been introduced in the Senate by Sen. Ron Wyden (D–Ore.), who has worked with Paul before in attempting to rein in the government's surveillance authorities. Paul is not currently listed as a co-sponsor of the Espionage Act Reform Act of 2022, nor did he co-sponsor the version of the bill Wyden introduced in 2020.

*This post has been updated with comments from Paul on the road in Kentucky explaining further why he believes the Espionage Act should be repealed.