Back in June 2019, the New Yorker wrote an article lambasting the Espionage Act.

The George W. Bush Administration pursued several government insiders for leaking classified information, but it was the Obama Administration that normalized the use of the Espionage Act against journalists’ sources. Among its targets were Jeffrey Sterling, a former C.I.A. officer, who was sentenced to three and a half years for supplying the Times with classified information about U.S. efforts to disrupt Iran’s nuclear program; Donald Sachtleben, a former F.B.I. agent who was sentenced to three and a half years for providing the Associated Press with information about a foiled terrorist plot in Yemen; and Chelsea Manning, a former military-intelligence analyst who was sentenced to thirty-five years for providing Assange’s WikiLeaks with hundreds of thousands of pages of classified government documents…

…(about the Trump admin) Later that year, Sessions told Congress that the Justice Department was engaged in twenty-seven investigations into classified leaks — a dramatic escalation over previous years. In the two and a half years since Trump complained to Comey, the Justice Department has indicted three people under the Espionage Act for providing information of public concern to the press.

Now, the New Yorker is concentrating on people who were prosecuted for supplying information to the press, or in the case of Assange, for publishing information (acting as the press himself.) And one can easily say “This isn’t the same thing — Trump isn’t a whistleblower.”

And I agree. If Trump has taken information and given it to a foreign power, then it’s one of the few semi-legitimate uses of the Espionage Act to go after him.

But if it’s just sat in some boxes, well, the truth is that for senior people, like Clinton (yes, a junior person would have had their career destroyed and likely gone to prison for using their own private server the way she did) and General Petraeus (who avoided indictment under the act), the law is usually an empty letter.

One might then say, well, but these are nuclear secrets and much more serious.

But all of this caviling and caveats brings out the essential point: The Espionage Act is so widely written that it’s a prosecutor’s cudgel, and the choice of whether to use it or not is a political decision, not a matter of whether someone violated the letter of the law. For most of the 20th century, after the original proscriptions (used against communists and people who opposed the draft), it was rarely used, and the choice to use it was clearly a political choice.

It’s a bad law. It shouldn’t be on the books. If it is on the books, it should be applied evenly, and in all cases, for the simple reason that using it against people with power is how it would be repealed and replaced with something much less prone to abuse. If it had actually been used against Clinton, there would have been massive pressure to repeal it.

And that’s the good thing, here. If it’s used against Trump, well, perhaps the Republicans, next time they’re in a position to do so (which could be as early as 2024), will repeal it.

Or, instead, maybe they’ll go tit-for-tat and continue with its weaponization, going after Democrats and left-wingers.

That would be bad, but it would also have the potential for good. You get rules of war and politics when both or all sides have been monsters, and they finally realize that mutual monstrosity is bad.

As for Trump, I have little sympathy. He used the law badly, and for him to be hoist on it amuses. It’s a pity that Obama, who really weaponized it, is smart enough to have not laid himself open. But if I were Clinton, I’d be concerned after 2025.