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Trump is right about Mar-a-Lago Espionage Act case exposing ‘two-tiered justice system,’ but not for the reason he thinks

Donald Trump

FILE – Former President Donald Trump speaks at Trump National Golf Club in Bedminster, N.J., June 13, 2023. (AP Photo/Andrew Harnik, File)

Former President Donald Trump and his staunchest allies will tell you his indictment under the Espionage Act for willfully retaining national defense documents is evidence of a “two-tiered justice system,” where Republicans are purportedly being singled out for persecution by the FBI and Department of Justice. The truth is that the DOJ, doubtless cognizant of issues with jailing a presidential candidate during his campaign, has actually afforded Trump special treatment of the kind that similarly charged defendants have never received.

On Tuesday, Trump appeared in federal court as a defendant for the first time and granted a personal recognizance bond in the Mar-a-Lago prosecution with no restrictions on his freedom of movement. He was also permitted to keep his passport, even though the indictment alleged that the classified documents stored in boxes at Mar-a-Lago “included information regarding defense and weapons capabilities of both the United States and foreign countries; United States nuclear programs; potential vulnerabilities of the United States and its allies to military attack; and plans for possible retaliation in response to a foreign attack,” potentially placing “at risk the national security of the United States, foreign relations, the safety of the United States military, and human sources and the continued viability of sensitive intelligence collection methods.”

Trump’s freedom to walk out of court did not go unnoticed:

There were only three conditions for Trump: Appear in court when you’re supposed to; don’t break any laws, and if you have a run-in with the law, report that to the U.S. Probation Office within 72 hours; don’t communicate about the facts of the Mar-a-Lago case with any fact witnesses on the list provided by the government.

Donald Trump

After Trump left court, he went right to the Versailles restaurant in Miami, flanked by his accused co-conspirator Walt Nauta, to bask in support of the very followers who would say he’s being treated worse than anyone else.

After the Versailles cafe trip was completed, Trump flew back to his golf club and residence in Bedminster, New Jersey, where he was able to give a speech and fundraise millions off of the indictment — even as the government alleged that Bedminster was the location where, on at least two occasions, he showed classified materials to a “writer, a publisher, and two members of his staff,” and to a “representative of his political action committee.”

It may surprise you to learn as well that other accused Espionage Act defendants have not been permitted to grab Cuban food following their arraignments. Nor were they given more than a calendar year to return the classified materials in question before charges were brought.

Jack Teixeira

Jack Teixeira is a 21-year-old Air National Guardsman with a top secret security clearance who was arrested on April 13 and is currently detained pretrial for the alleged “unauthorized removal, retention, and transmission of classified national defense information” in online leaks on the status of Russia’s invasion of Ukraine, secret information on Ukraine’s military capabilities, and U.S. “intelligence-gathering” on allies. Like Trump, Teixeira is charged with violating 18 U.S. Code § 793. The main difference in the charges is in a letter: § 793(e) for Trump (31 counts) and § 793(d) for Teixeira (Trump allegedly willfully retained and showed off the documents in question without lawfully possessing them vs. Teixeira had lawful possession of the documents he allegedly disclosed in violation of the law). Teixeira is also accused of violating § 793(b).

Teixeira appeared in court the day after he was arrested and the government moved for his detention. He was returned to the custody of the U.S. Marshal and, after multiple moved court dates, finally got his detention hearing on May 19 — more than a month after his arrest. The government argued that Teixeira should be detained “on grounds that he is a serious risk of flight and a serious risk of obstructing justice,” and the judge granted the motion to detain.

Trump, a wealthy businessman with a private jet who is accused of a conspiracy to obstruct among 36 other felony charges (in the Mar-a-Lago criminal case), wasn’t accused of being a flight risk or a risk to obstruct justice, as there was no DOJ motion to detain him.

Reality Winner

Reality Winner, now 31, is an Air Force veteran and former National Security Agency contractor with a top secret clearance who was arrested and sentenced while Trump was president for admittedly violating 18 U.S. Code § 793(e), the same statute cited in the Mar-a-Lago indictment, by unlawfully printing and mailing classified intelligence reporting on Russian interference in the 2016 election to The Intercept, an online news publication.

Unlike Trump, who was arrested at the federal courthouse days after being issued a criminal summons, Winner was arrested by the FBI at her Georgia home on June 3, 2017. Two days later, the government moved for her detention; on June 8, 2017, Winner was ordered detained. Also unlike Trump, Winner was housed in a local jail after her arrest, which is why her mugshot exists.

reality winner mugshot

Reality Winner via Lincoln County Sheriff’s Office

Winner’s second bid for pretrial release (which proposed conditions that Trump does not have to abide by) also went nowhere, as she reached a plea agreement in September 2017. The agreement was accepted in August 2018, and Winner was sentenced to 63 months in federal prison and three years of supervised release.

In a Rolling Stone interview from 2021, Winner elaborated on what life after prison looked like:

‘Perfect’ is a relative term coming from someone who has spent the last four years in federal prison. For the next three years, Winner, who had her court-mandated ankle monitor removed on Tuesday, will still be on probation, which means mandatory drug tests every two weeks, a 10 p.m. curfew, and securing permission from her probation officer for any overnight trip she’d like to take. (Getting that permission is not a given, either — Winner’s P.O. already turned down her request to run a half marathon in San Antonio next month because it would mean traveling outside the federal district where her case is located.)

“It enrages me,” Winner says, comparing the terms of her parole to those of friends she made inside the system. One was serving time for a gun charge she got while trafficking drugs for an Aryan gang, the other did 11 years for armed robbery. “She’s not going to have these conditions,” Winner says. “He does overnight trips, he goes across state lines, he’s moved three times over the summer. He doesn’t have a curfew.”

Winner was denied compassionate release from prison on April 24, 2020; she was released from the Bureau of Prisons on Nov. 23, 2021.

Julian Assange and Chelsea Manning

The U.S. government has been engaged in a years-long battle to haul WikiLeaks founder Julian Assange from the U.K. to the U.S., so he can be prosecuted for committing alleged violations of 18 U.S. Code § 793 with Chelsea Manning, a former U.S. Army intelligence analyst who was convicted of violating the Espionage Act by leaking hundreds of thousands of Iraq and Afghanistan documents collectively dubbed the “war diaries.” Manning served roughly one-fifth of a 35-year sentence before former Barack Obama, in one of his last acts as president, commuted most of the remaining years.

But Manning’s legal problems did not end there.

As the federal government pursued Assange — who was holed up in the Ecuadorian Embassy in London for seven years — Manning was held in contempt for refusing to testify before a grand jury in the Eastern District of Virginia that was investigating Assange. As a result, Manning spent nearly an uninterrupted year in jail from March 2019 to 2020 and racked up hundreds of thousands of dollars in fines. Manning was finally released from jail in March 2020 — but only after a suicide attempt — as the court found her “appearance before the Grand Jury is no longer needed, in light of which her detention no longer serves any coercive purpose.”

Assange, indicted in the U.S. under seal in March 2018, was hit with superseding indictments in May 2019 and June 2020, alleging that the WikiLeaks head conspired to break into a U.S. military database and published classified information leaked by Manning in violation of § 793(b), (c), (d), (e), and (g).

Although a judge blocked Assange’s extradition in January 2021 based on his deteriorating mental health and suicidal ideations behind bars, a ruling issued as recently as June 6 denied Assange’s renewed appeal of approved extradition.

Assange’s supporters have warned that he’s now “dangerously close” to extradition and could spend the “rest of his life in a maximum security prison for publishing true information that revealed war crimes committed by the US government.” Assange has been held in Belmarsh prison in London since April 2019.

Edward Snowden

Edward Snowden, formerly a CIA employee and National Security Agency contractor, famously fled to Russia, where he remains to this day, after the U.S. government charged him in June 2013 with theft of government property and violating § 793(a)(3) and (d) of the Espionage Act.

Because he did not use proper channels to blow the whistle and instead leaked classified documents to a group of journalists, Snowden’s exposure of unconstitutional surveillance of Americans and the NSA’s bulk collection of phone records led to Espionage Act charges — and his exile from the country.

The long arm of U.S. law was still able to reach Snowden in another way years later, however.

Edward Snowden

FILE – In this image made from video and released by WikiLeaks, former National Security Agency systems analyst Edward Snowden speaks in Moscow, Oct. 11, 2013. President Vladimir Putin has granted Russian citizenship to former U.S. security contractor Edward Snowden, according to a decree signed by the Russian leader on Monday Sept. 26, 2022. (AP Photo, File)

When Snowden penned his autobiography “Permanent Record” without submitting it for prepublication review — in violation of nondisclosure agreements he signed as part of his work for U.S. intelligence agencies — the government pursued and obtained a court order permanently blocking Snowden from profiting off the book.

The judgment in the government’s favor was in an “amount exceeding $5.2 million,” and it imposed a “constructive trust for the benefit of the United States over those sums and any further monies, royalties, or other financial advantages derived by Snowden from Permanent Record and 56 specific speeches.”

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Matt Naham is the Senior A.M. Editor of Law&Crime.