Most mainstream media outlets ran the story for a day, dismissed Trump as being deranged, and moved on to other news. I think there is something more to this.
I want to go on record as saying that I don’t think Huma Abedin should be arrested. She’s already been investigated, and the Justice Department found that she had not committed a crime. Sure, there were classified documents on her husband’s computer, but she did not appear to have had any criminal intent when she put them there. She was sloppy, careless, perhaps lazy. She wanted all of her classified passwords in one place. And that place wasn’t on her classified system; it was at home, on her unclassified system. It’s certainly a fireable offense, but it doesn’t rise to the level of criminal behavior.
Except in the Eastern District of Virginia in the courtroom of Judge Leonie Brinkema.
Judge Brinkema made a ruling in my case that set legal precedent and that was such a dangerous development that virtually anybody with a security clearance could be charged with espionage if the government decided that they didn’t like their politics. (I was charged with three counts of espionage after blowing the whistle on the CIA’s torture program. All of those charges were dropped, and I eventually pleaded guilty to a lesser charge to make the case go away; I was facing 45 years in prison. I served 23 months.)
In United States v. Kiriakou, Brinkema held that in cases involving the Espionage Act, the government need not prove any criminal intent whatsoever. She said that a person could commit espionage “accidentally,” and that intent, or lack thereof, was not a defense. This was in direct contrast to another judge’s ruling in NSA whistleblower Tom Drake’s case, where even if Drake had exposed classified information (which he hadn’t), he lacked any criminal intent. The case against him fell apart and all felony charges were dropped. But Brinkema’s ruling left me with no defense.
Furthermore, Brinkema defined “espionage” as “the provision of any national defense information to any person not entitled to receive it.” “National defense information” is not defined in the federal code. It never has been. The Espionage Act doesn’t refer to “classified” information because the law was written in 1917 to combat German saboteurs during World War I, while the classification system wasn’t invented until 1952. So what is “national defense information?” It’s whatever the prosecutor decides it is.
Let’s look, then, at what Huma Abedin did. As the Washington Post reported on January 2,
“The president’s tweet (calling for Abedin’s arrest) comes just days after the State Department posted online thousands of Abedin’s emails, which were captured on the computer of Anthony Weiner, her estranged husband. Those emails – some of which contained classified information – spurred the FBI in October  to reopen its investigation into Clinton’s use of a private email server while she was secretary of state, although the bureau would ultimately conclude that the messages gave them no reason to change their conclusion not to recommend charges against Clinton or any of her aides.”
Then-FBI director James Comey called Clinton and Abedin “extremely careless” in their handling of classified information. At the very minimum, there’s a possible case against both for misdemeanor “failure to secure classified information.”
That’s all fine and good. But according to Brinkema’s interpretation of the law, Abedin (and Clinton, for that matter) violated the Espionage Act. At its most lenient, this violation calls for up to five years in a federal prison. At worst, it’s life without parole.
That’s preposterous, of course. But so was the Obama administration’s use of the Espionage Act as an iron fist to stamp out dissent within the US intelligence community. Obama’s attorney general, Eric Holder, prosecuted eight people under the Espionage Act for allegedly giving classified information to the press. That’s nearly three times the number of prosecutions under all previous presidents combined. Trump has, at least so far, continued that policy with the arrest, incarceration, and prosecution of Reality Winner. And with Jefferson Beauregard Sessions III at the Justice Department, we should only expect the worst.
In the meantime, two things need to happen. First, Congress must rewrite the Espionage Act. They have to define what “national defense information” is. They have to allow for an affirmative defense. And they have to ensure that no president is able to use the Espionage Act as a political weapon. But there are no votes or special interest money in Espionage Act reform. Nobody on Capitol Hill has the guts to do it.
Second, Leonie Brinkema must go. Appointed to the federal bench by Reagan and elevated by Clinton, she obviously hasn’t read a law book in a long time. There’s no place for her reactionary judicial activism in today’s America.