Former President Donald Trump has been charged with a variety of crimes, including violation of the misnamed Espionage Act.
That 1917 statute is misnamed because it covers a great many offenses that don’t involve spying or giving secrets to the enemy.
In fact, over the years it has been used extensively against patriotic Americans who have opposed wars and dissented from other government actions.
In Trump’s case, he is being accused primarily of unlawful possession of allegedly classified material.
But because he has been charged under the Espionage Act, many people have been misled into believing the accusations against him have something to do with espionage, spying or even treason.
The use of the term espionage is extremely prejudicial to Trump in the court of public opinion. It would be even more prejudicial in a court of law if the jury were to hear that word in connection with his case.
Accordingly, Trump’s lawyers should immediately move for what’s called a motion in limine prohibiting the use of the word espionage by prosecutors, either inside the courtroom or outside it, but especially in front of the jury.
“Espionage” has no relevance to the upcoming trial. It associates Trump with some of the worst offenses imaginable.
Julius and Ethel Rosenberg were executed for espionage. Several former government officials have served long terms for espionage.
Those defendants actually provided classified and other secret information to our enemies.
Trump should not be painted with that invidious brush, based on the evidence in his case.
It’s common for judges to prohibit prosecutors from using prejudicial terms in front of the jury.
The judge generally weighs the probative versus the prejudicial impact. In criminal cases, judges should always err on the side of protecting the rights of defendants.
This is not a hard case for barring the use of the term espionage, since it has little or no probative effect and a vast potential for prejudice.
That the name of the statute uses the word is no excuse to let the prosecution use it. Often statutes have broad names that have little or nothing to do with the charges in a particular case.
Imagine this hypothetical: Congress passes a statute and entitles it “The Protection Against Child Molestation and Insider Trading Act.”
Should prosecutors be allowed to mention the first part of that statute in a case that does not involve child molestation? Of course not.
Nor should the prosecution in this case be allowed to mention the word espionage, even though Congress misnamed the statute with that loaded term.
For this case, the law should be referred to only by mentioning the allegedly unlawful possession of classified material.
That is the essence of this prosecution, and the defendant should not be prejudiced by reference to other aspects of the statute that have no direct bearing on this case.
It’s not too early for the defense to file this motion or for the court to grant it. Already, Trump has been prejudiced by media references to the law’s “espionage” title.
The court can’t stop the media from using that word, but by explicitly ruling it out of the trial, it can have an impact on public opinion and thus on the potential jury pool.
Espionage is a word that denotes some of the most evil intentions on the part of those accused of it. The impact could be subtle, even unconscious, but it is real.
The government would suffer no prejudice from a ban on the term in court. It can still argue Trump’s actions may have endangered our national security, but it won’t have the help of a misnamed statute.
True, any improper possession of highly classified material may pose some danger to national security if it gets into the wrong hands.
But that would be true as well of the improper possession and use of classified material by others who have not been charged, such as President Joe Biden, Vice President Mike Pence and former presidential candidate Hillary Clinton.
The American public has the right to judge how serious these dangers were in each case, but its judgment shouldn’t be influenced by prosecutors throwing around the word espionage just because it’s in the statute.
Indeed, the media themselves should be more responsible and explain that the charges are under provisions of the statute that have nothing to do with spying.
In any trial of Donald Trump, there will be prejudice on both sides. He is hated and loved by people who have already chosen sides.
It’ll be hard enough to select jurors who are able to consider the evidence without predispositions and prejudices.
The court should go out of its way to reduce those risks to a fair trial.
Among the ways to do that is to eliminate all reference to the word espionage in the courtroom.
Alan Dershowitz is professor emeritus at Harvard Law School and the author of “Get Trump,” “Guilt by Accusation” and “The Price of Principle.” Andrew Stein, a Democrat, served as New York City Council president, 1986-94.
I doubt the judge will prohibit the word espionage. So if I’m the defense I would on cross examination have a govt witness read the dictionary definition of “espionage” and with every prosecution witness I could I would ask every--“ok, so when was it Trump gave or sold classified material to any adversary or terrorist group and how much was he paid? Also, exactly what classified material did Trump share--specifically what language from the documents?” My response to prosecution m’s witness answer is “What, he didn’t sell or give any documents or classified material of any sort at issue here to any adversary, enemy or terrorist group--then why is he charged with Espionage?” What harm did he cause to American or allies safety of its country or people or any field agent assets? “Wait what, you can’t tell me of any harm that resulted. I would do that over and over and cross every witness who reviewed the material or anyone and everyone that the judge would allow. FINALY, the government would be explaining that they are not charging him with committing espionage by selling or giving secrets to a foreign adversary or actually hurting the security of the US or it’s Allies. It would be more powerful to the jury, if the government itself is the one that has to say, “we don’t mean ‘espionage’ in the normal sense, or dictionary definition or common layperson language, what we really means is that he possesses classified documents, the “Espionage” stuff is how Congress named the Law. In response I would some way work in that the title Congress gives to a law is not actually part of the law itself. The name can be made up and that the title can be misleading or even a lie--just like Biden admin naming a spending bill The Inflation Reduction Act and if necessary have an expert to testify that the law made inflation worse and that hundreds of economists said this before the law was passed. I would call the Parlimentarian and clerk of both houses to be witnesses to explain the title of a law is not part of the law itself--you must look at the elements of the conduct the law dictates as criminal. Try to force the Prosecution to have to explain that he didn’t give secrets to an enemy or hurt US security so that the dictionary definition of “espionage” is not even being alleged. I would ask every witness I could. “So are you charging him with merely possessing classified material? They would say yes and they would say obstruction. I would say, I will addressed the supposed “obstruction” and use finger quotes. Then ask “Have there been other Presidents, Senators, Vice Presidents, or Secretaries of State between 2016 and 2023 who have been found to be in possession of classified material improperly.” (That will be objected to so I might not get the answer)“ Tell me what the length of their sentence was? What, they weren’t sentenced, what they weren’t even charged...of anything?” “How can that be?” The prosecution will be objecting to a lot of those questions perhaps, but the jury will still understand what is going on. When they argue obstruction of Justice. I have a bunch of cross X for that. But in closing I would say, “academically in theory it is possible to find obstruction of Justice, even when there is no underlying bad act or crime.” That is what they argued in Trumps two impeachments, yet he was found not guilty--even when Democrats had the majority in the sentence. Make the prosecution explain the 2/3 rule if they want. I would also ask the jury if they think someone should be convicted of obstructing Justice for a “crime” that they did not charge anyone else for when they had same documents in their possession after leaving office. If that is not “enough evidence blah blah-quote Comey--that no REASONABLE prosecutor would every charge anyone with” what was it in the law that changed since that statement? Nothing, not one word of the law has been changed.” Plus I would argue that Trump had been in discussions with Archives about what he had to return and what he could keep. By the way that was only a civil matter, until FBI conducted a late night raid on his home with a search warrant and suddenly now they are accessing you of a crime. When a search warrant is served, you still have 5th Amendment rights, and you are under no obligation to show the police something they missed. The government made this adversarial, not Trump. The FBI had previously checked if his papers were secure. They told him to add an extra lock. Why didn’t they search then? The FBI executed a search warrant with guns drawn and searched high and low. For some reason they did not take all the documents marked classified. The defendant doesn’t have to guess why they didn’t take them. So the fact that he allegedly moved documents doesn’t matter. Defendant does not have an obligation to take all files FBI missed to the FBI and ask them to “look at these documents I had, should you have taken those?” The fact that you moved around storage boxes after a search is not a crime. Lawyer did sign document that he swore everything he knew about was in Govt hands. Oops. He made a mistake, he didn’t lie.” Even the FBI missed them when conducting a surprise search. Ladies and Gentlemen of the jury, moving some boxes around after the FBI is satisfied with their search is not a crime. Tell the jury that this rightly should be worked out with the Archives, which is civil, which is where this matter originally was. Leave the jury with “you duty is to find the facts that are true and use your judgment and apply the law to those facts and determine in your judgment if there really a crime, beyond all reasonable doubt. You use your common sense and judgment and make your determination if defendant committed “espionage” and if it isn’t, look at what is left and whether if there really is a crime. It is up to you bc the FBI and DOJ can’t seem to determine when it is a crime or not for themselves in any consistent manner.
From here, (Australia), it seems America has devolved into mass insanity. Trump /Espionage. How moronic, yet evil.
I much admire Professor Dershowitz, but keep remembering him saying on his podcast early in the Biden Admin., that he though Merrick Garland would be a good Attorney General, & would have been a good Supreme Court appointment. I haven't heard him regret those words. So if the greatest mind in the US can be so wrong, what hope is there for that once great country?