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Thursday, June 15, 2023
POLITICO Nightly: Miami mayor makes two big bets
RSN: Norman Solomon | Two Very Different Espionage Act Cases: Trump and the Drone Whistleblower
15 June 23
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For Trump, it will be irrelevant that the 106-year-old Espionage Act does not allow defendants to testify about why they handled classified documents the way they did. But, if not for that restriction, Hale might never have gone to prison in the first place.
Any attempt by Trump to present a “public interest” defense would be laughed out of court. Every indication is that his only interest was self. His intent could hardly be exculpatory.
In sharp contrast, a public-interest defense by Hale, if it had been allowed, might have swayed a jury. Such an argument in court — along the lines of what’s known as a “competing harms” defense — is akin to the claim that breaking into a house with a posted “No Trespassing” sign was justified to rescue children from a fire.
Hale’s decision to provide classified documents to an American media outlet was based on the need to inform the American people about what the military drone program was doing with their tax dollars in their names. The classified information from Hale enabled the website The Intercept to publish a series of articles in October 2015 that illuminated a hidden corner of U.S. foreign policy.
“The White House and Pentagon boast that the targeted killing program is precise and that civilian deaths are minimal,” one of the pieces reported. “However, documents detailing a special operations campaign in northeastern Afghanistan, Operation Haymaker, show that between January 2012 and February 2013, U.S. special operations airstrikes killed more than 200 people. Of those, only 35 were the intended targets. During one five-month period of the operation, according to the documents, nearly 90 percent of the people killed in airstrikes were not the intended targets.”
To truly have the informed consent of the governed, providing such information was a vital public service. But with Hale’s actual purpose excluded from his trial, the Justice Department’s prosecution was a slam dunk.
At his sentencing two years ago, Hale gave a handwritten five-page letter to the judge, who was about to sentence him to several years in prison. Hale wrote that he had given documents to the press, “not one more nor one less than necessary, to dispel the demonstrable lie that said drone warfare kept us safe, that our lives are worth more than theirs, and that only more killing would bring about certain victory. Simply put: It is wrong to kill, it is especially wrong to kill the defenseless, and it is an abdication of the Bill of Rights to kill without due process of law.”
Hale, who traces his ancestry to the Revolutionary War hero Nathan Hale (executed by the British in 1776), is now confined to the heavily restrictive Communications Management Unit at the high-security Marion federal prison in Illinois. Rest assured that if Donald Trump is convicted of any of the felony counts in the federal indictment, he will have much less repressive prison accommodations.
As I write in my new book, “War Made Invisible”, which includes profiles of Daniel Hale and other whistleblowers, “My conversations with drone whistleblowers left me thinking about the huge gaps between how war ‘issues’ are commonly discussed in the United States and what they actually mean for actual people.”
It was Daniel Hale’s deep concern about what drone warfare actually means for actual people that impelled him to become a whistleblower. That’s why he’s in prison right now.
While Donald Trump is now facing prosecution on 37 felony counts — 31 of them for alleged Espionage Act violations — the contrast between his motivations and those of Daniel Hale will be excluded from the judicial proceedings. But the contrast should loom large in the court of public opinion.
When I asked a former top National Security Agency official, Thomas Drake, to compare the Trump and Hale cases, he said: “There are so many secrets in government and Trump saw some of the highest that existed. But based on the vast number he purloined, he clearly viewed them as having great material value as keepsakes to hoard, share and use for his own grift.” Drake added that Trump “did not keep those highly sensitive secrets to share in the public interest like a whistleblower, but for self-interest and personal pursuits.”
Drake, who worked at high levels of the NSA in the immediate aftermath of 9/11, is himself a whistleblower. (Full disclosure: A nonprofit that I help lead has supported Drake and distributed his essays.) He was ultimately vindicated following protracted prosecution, after going through government channels to no avail — and then providing information to a Baltimore Sun reporter — to reveal huge waste and mass surveillance by the agency in systematic violation of the Fourth Amendment’s privacy protections.
“Donald Trump did not faithfully defend or execute the laws of the land — instead he held them, and ‘We the People’ of the U.S., in utter contempt,” Drake said. “Daniel Hale held faith to the highest ideals of our country and human rights, as he witnessed so many innocent civilians wiped out in the drone killing fields and shared it via the press in the public interest. The deep irony is that the Espionage Act, in its contemporary use, can’t tell Trump and Hale apart.”
Norman Solomon is cofounder of RootsAction.org and executive director of the Institute for Public Accuracy. His new book is “War Made Invisible: How America Hides the Human Toll of Its Military Machine.”
Reader Supported News is the Publication of Origin for this work. Permission to republish is freely granted with credit and a link back to Reader Supported News.
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FOCUS: Ryan Goodman and Andrew Weissmann | Jack Smith's Backup Option
15 June 23
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Donald Trump was indicted in Florida. Could he also face charges in New Jersey?
According to the Justice Department and a taped recording of the former president, Trump took classified records from Mar-a-Lago to Bedminster, where he showed off the contents of such records to others. The indictment alleges that Trump showed a map to a political ally and also showed a writer and a publisher a secret military plan to attack Iran. These two episodes were arguably the most egregious allegations of criminal wrongdoing mentioned in the indictment; they allege not just the improper retention of our nation’s most highly classified information, but the intentional communication of such information.
But these two allegations raise a question: Why did Special Counsel Jack Smith charge Trump with illegal retention of classified documents but not with dissemination of such materials? And is that decision final, or could dissemination charges still be in the works?
Trump’s Bedminster conduct, as described in the indictment, appears to fit the description of two federal offenses designed to keep America’s national-security secrets safe. One makes it a crime to intentionally communicate national-defense information to people not authorized to receive it, and the other makes it a crime to intentionally disclose classified information to the same. These are more serious crimes than willful retention of such documents, which is done to prevent possible leakage. Deliberate dissemination is the leakage itself.
The Justice Manual, the Department of Justice’s guidebook on criminal procedure, as well as guidance from the attorney general’s office, advises prosecutors to give strong consideration to charges of dissemination before making them. According to the manual, once a determination is made that an indictment is warranted, “the prosecutor must select the most appropriate charges,” and “ordinarily, those charges will include the most serious offense that is encompassed by the defendant’s conduct and that is likely to result in a sustainable conviction.” Attorney General Merrick Garland has indicated that the prosecutor can consider a number of factors in deciding whether to bring the most serious charges.
Smith appears to have taken a cautious, narrow approach. Even though the indictment describes alleged dissemination and disclosure of national-security secrets, the indictment did not charge Trump with those offenses.
One possible explanation for his decision: venue. The Constitution requires prosecutors to bring charges in the location—or venue—where the alleged criminal conduct took place. Justice Department prosecutors could not necessarily bring charges against Trump in Miami for alleged criminal conduct that occurred in another state, in this case New Jersey. But the absence of such charges in the indictment raises the intriguing possibility of another indictment to come, in a jurisdiction, no less, with a pool of jurors and judges more favorable to the government’s case against Trump.
The government could make a solid argument that Florida is, in fact, an appropriate location to bring the charges for dissemination at Bedminster. “Any offense against the United States begun in one district and completed in another,” according to a congressional statute, may be “prosecuted in any district in which such offense was begun, continued, or completed.” Just last year, the Court of Appeals with jurisdiction over Florida applied that statute in an analogous situation, holding that a defendant charged with storing drugs in Alabama and transporting them to Tennessee for distribution could be prosecuted in Alabama for drug distribution.
But perhaps Smith did not want to count on the Supreme Court to recognize Florida as an appropriate venue. Judges have not issued definitive rulings on how the law of venue applies to the national-security statutes under which Trump has been charged. Plus, any creative law student—or judicial clerk fresh out of law school—could find ways to distinguish the conspiracy to possess and sell drugs in another state from the crime of disclosure of classified information. Smith might have reasoned that the government could lose on the issue of venue for any dissemination charges it tried in a Florida court. And that could potentially be fatal to ever bringing those charges even in the place that’s an obvious venue option: New Jersey.
For example, with regard to Trump’s alleged disclosure of U.S. attack plans against Iran, it is possible, based on the publicly available facts, that Trump shared the number of U.S. troops required to attack Iran, but not the actual document outlining the attack plans. That would not make his conduct any less criminal—the law specifically prohibits verbal disclosure of such information, not just documents. But if the alleged crime was verbal communication, that crime arguably did not “commence” in Florida with the physical transportation of boxes to New Jersey.
Another possible explanation for why Smith didn’t charge Trump for the more serious offenses has to do with the range of prison time the defendant could be subject to. A conviction for any of the 31 counts Trump faces under the Espionage Act for retention of national-defense information would already yield the maximum penalty available under the federal sentencing guidelines. That is regardless of whether additional counts for dissemination are included. In evaluating a proper sentence, the judge could still take into account the two alleged instances of dissemination—there is no need for the prosecutors to obtain separate convictions on those counts for that conduct to be considered in the sentencing.
The legal uncertainties that surround bringing charges in Florida for dissemination of national-security secrets in Bedminster leaves open the possibility that charges might yet be brought in New Jersey—a backup plan of sorts for Smith. If Aileen Cannon, the Florida judge assigned to the case, were to seek to pocket-veto the charges before her by, say, scheduling the trial for after the 2024 presidential election, the special counsel would be able to sidestep her tactic by proceeding with charges in New Jersey.
In fact, the Miami indictment conspicuously excludes many facts surrounding Trump’s actions in Bedminster: what boxes were taken there, what they contained, how they were kept at the golf club. This silence suggests that there might be more to come from the famously hard-charging Smith and his team of prosecutors, who put together an otherwise highly detailed 49-page indictment.
Smith might still decide against bringing a separate indictment for dissemination, because such a move could be painted as overcharging. The government usually tries to avoid being seen as piling on, at least in such a high-profile matter. But if Cannon acts consistently with her prior Trump-friendly rulings, which were twice found by unanimous panels of conservative appellate judges to be both factually and legally flawed, Smith might go looking for another way to ensure accountability—and another venue where he could do so.
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