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James Fallows's avatar

As an extra discussion point:

Jan Lodal's essay goes into some ways that leaks to journalists might be covered in various subparagraphs of the Espionage Act.

This excellent American Scholar essay from ten years ago, by my friend and colleague Lincoln Caplan, goes in great detail into this "leaks vs espionage" point. Its argument is of course not directly connected to the Donald Trump case, but I highly recommend it on the larger issues. It is here:

https://theamericanscholar.org/leaks-and-consequences/

An overly simple summary: Linc Caplan goes into the tangled history of the Espionage Act itself, and argues that he thinks it would be a major mistake to bring interactions with journalists under its provisions. (In his essay, Jan Lodal mentions some leaks to and interactions with journalists, which he says were damaging in intelligence terms but were never prosecuted.)

Check it out.

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James Fallows's avatar

Thanks to many readers who have already written in with responses. Keep them coming!

I have addressed a few of them that are within the realm of "things I sort of know about." I have invited Jan Lodal to respond on points directly about his Espionage Act arguments.

FOR INSTANCE, here is a reply I received directly from a longtime Congressional staffer, with extensive defense-policy experience. He quotes this part of Jan Lodal's argument:

>>And the final Subparagraph (f) requires proving both “gross negligence,” always difficult, and that the perpetrator not only mishandled documents but also “failed to report” the mishandling to his “superior officer.” No one was “superior” to the President of the United States, so his behavior couldn’t meet this test. <<

And responds this way:

>>Not necessarily. Beginning 20 January 2021 at noon, Trump became a private citizen and superior to no one in the national security structure. All actions after that date would be culpable under subparagraph (f). And based on what we already know about the lax security and comings and goings of foreign nationals at Mar a Lago, gross negligence could be provable.<<

I'm adding this as part of the discussion. Thanks to all.

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