Law professor Heidi Kitrosser, Lawfare, June 13, 2023, writes that a provision of the Espionage Act was used by the Trump administration to charge five individuals for leaking information to the press. This is the same provision used to indict Trump, but several of those indicted by the Trump administration sought to release important information to the public or report abuses in government. “There is no magic formula,” writes Kitrosser, “that will strike a perfect balance between the secrecy that national security requires and the transparency that fuels a healthy democracy. But recent prosecutions and indictments have revealed the 1917 Espionage Act for what it is: a blunt, rusty old instrument. An amended version of the legislation should make the public’s interest in any leaked information a relevant factor, whether by prescribing a balancing test for courts to apply or creating a public interest defense against liability.”
Scholar Ivan Eland, Independent Institute, September 9, 2022, writes that the Obama administration was particularly intent on bring charges against journalists for bringing leaked information to the public. Eland argues that freedom of information is essential to maintaining a free society. “This freedom is so important to the health of a democratic society,” writes Eland, “that it is even more vital than preventing the disclosure of above-top secret information that might compromise intelligence sources and methods, even as critical as that is. However, if the government cannot prevent its officials of one stripe or another from leaking its highly sensitive information for political purposes, then it should not abuse the Espionage Act to go after the press for printing those secrets.”