This transcript was automatically generated and might contain errors.

[0:00] Dori Berenstain: Welcome to Episode 15, Double Standards, Trump and the Espionage Act.

[0:10] Sally Horchow: On August 8th, 2022, the FBI seized over 300 classified FBI and CIA documents held by Trump at Mar-a-Lago, including many top secret documents compromising national security.

[0:25] Dori Berenstain: We are now hearing that Trump is withholding even more documents. In February 2017, Reality Winner was charged with leaking one government document proving Russian interference in the 2016 election.

[0:41] Sally Horchow: Calling Reality a terrorist and convicting her under the Espionage Act of 1917 was the Trump administration's way of saving face and burying the truth. Reality received the longest prison sentence ever imposed for the unauthorized release of government information, five years and three months. And it's important to remember, Reality did not leak U.S. secrets to a foreign enemy, nor was she seeking any personal benefit whatsoever. Reality had a singular goal to help protect democracy.

[1:14] Dori Berenstain: I'm Dori Berenstain.

[1:16] Sally Horchow: And I'm Sally Horchow, and this is Reality.

[1:20] Dori Berenstain: In our last episode, we spoke to Joe Connison and Marcy Wheeler about the FBI's raid of classified documents at Mar-a-Lago. In today's episode, we speak to Micah Lee, the Director of Information Security for The Intercept, about the implications of that FBI raid. If you recall, The Intercept is the news site that published Reality's document proving Russian interference in the 2016 election.

[1:49] Sally Horchow: Micah Lee is also one of the founders of the Freedom of the Press Foundation, which protects, defends, and empowers public interest journalism.

[1:59] Dori Berenstain: In 2013, when Edward Snowden was preparing to leak documents about NSA surveillance, he wanted to talk to Laura Poitras and he wanted to talk to Glenn Greenwald, and he didn't have a secure way to contact them. And so at the time, we had just founded Freedom of the Press Foundation. It was a group to support whistleblowers and to support journalists that are working with whistleblowers. And this organization was only like a month or two old.

[2:35] Sally Horchow: Micah has a PGP fingerprint on his staff profile, which enables anyone to send him an encrypted message. Edward Snowden used that fingerprint to reach out directly to Micah.

[2:46] Micah Lee: Edward Snowden sent me an encrypted message. He asked for my help, basically, if I could help him securely talk to Laura Poitras. And I had no idea who he was. It was just an anonymous email address and it was encrypted. But I went ahead and helped him. And he just said that it was important. Over the months, I kept talking to him and helping him and helping like Laura and Glenn, but I didn't really know what was going on. After they decided to start The Intercept, they basically hired me on to do security for The Intercept. And so I've been working at The Intercept ever since. But yeah, Freedom of the Press Foundation was, it's a great organization. It does a lot of technical work. I've worked a lot more on the technical side where like they make software called SecureDrop, which is used for sources to securely and anonymously communicate with journalists. You know, it's done a lot of work around the Espionage Act and Obama and then Trump's, you know, war against journalism using the Espionage Act.

[3:49] Micah Lee: So whistleblowers are critical to journalism. It's critical to getting the word out about things that are happening because in a lot of cases, you know, we just would never know about corruption. We would never know about, you know, crimes being committed if there weren't for someone on the inside that knows about this and that decides to share it. You know, so I think that Reality Winner is a good example because she saw solid evidence that, you know, Russia was interfering with the election. And meanwhile, you know, in the whole public discourse, this was being like treated as if, you know, it was controversial, as if it wasn't real. Trump was saying it was fake news. You know, people were saying that this is just a bunch of nonsense. But she had proof that, you know, the U.S. government knew and she kind of exposed the president's lies. And I think that that really moved the conversation forward.

[4:58] Micah Lee: The risks whistleblowers take are enormous. They often don't understand the consequences of their actions.

[5:05] Micah Lee: A lot of whistleblowers don't really realize how much trouble they might get in. They're just like, oh, man, this is like fucked up. I need to do something about that. And that's just how they feel. And so then they just do something about that. And then they don't realize that, like, they could be facing serious criminal penalties. And then also, you know, even when they do, even when they take the steps to try to protect themselves, it's much, much, much easier for, you know, the FBI and for leak investigators than it is for the whistleblower. Because after a story is published with leaked information and an investigation starts, the investigators have so much power. They have so much information that they can pull on. And the reason really is because every single thing that we do is recorded and logged and tracked.

[6:02] Micah Lee: And so it starts with the whistleblowers, like if they're at work, they're using their work computer or their work phone. Like all of the information on the computer and phone is logged. Like they can look through their browser histories. They can look through, you know, their email and their messaging apps and everything. And oftentimes there's restricted databases that whistleblowers use. So like they log into a database, they do some searches, they, you know, maybe download some files from it. Every single little aspect of it is logged. And so the document that Reality Winner leaked was she was one of the six people that had printed it. And they knew exactly who those six people were. And so that was like, you know, where they started their investigation.

And then they started looking through all six of those people. And then, you know, beyond the work devices, then they can get search warrants and get information from Google and Twitter and telecom carriers. And so they sent search warrants to all of these companies and got loads of information back. And then they also, if they have enough evidence, they can raid your house, they can look through all of your stuff. They basically have all of this information. While meanwhile, the whistleblowers, unless they're already basically like trained as a spy, they just don't really have very much hope. Which is very, it's very upsetting.

[7:37] Micah Lee: As we discussed in our previous episode, the government has used the Espionage Act to go after whistleblowers. Currently, Trump could be facing the same charge.

[7:49] Micah Lee: And I mean, I think that the one exception, obviously, is if you were Donald Trump, then you get very special treatment. Because if you misuse classified documents, you get to like, claim that they were your personal documents, even though they're classified government documents, you get to claim that, you know, you have executive privilege, even though you're not the president anymore. And then you get like a judge that you appointed to appoint a special master and all sorts of stuff. So Trump is getting very special treatment in this case.

[8:17] Micah Lee: But for everybody else, there's no way to defend your actions. It's ironic. I wish there wasn't such a double standard. But I think that in Trump's case, all the information hasn't actually come out, there might actually be real national security issues with him having these documents.

[8:40] Micah Lee: Have the ability to declassify, you know, any classified information that he wants, but specifically there was no evidence that he actually took any steps to declassify this. So I think that that doesn't hold very much weight. The Department of Justice seems to be implying that there are, that some of these are like the most highly classified documents, and that there's like severe national security concerns. I don't think that there's much of a, you know, public interest thing there. To go back to the question, like, is there a chance that he might get in real trouble? I think there is a chance. I think that this is one of the several, you know, investigations into Trump. It's a big one, because I think that these charges are very serious.

Yet as we've seen time and time again, the government gives special treatment to those with power, money, and connections. If it were anyone but Trump, it would be a no-brainer. He would be sentenced to years in prison, you know, just for this investigation. But, you know, he already has a huge political movement on his side, and he also already has a judge that's willing to make, like, exceptions just for Trump. And so we'll see if this continues and if he somehow gets off. If the legal system were fair, then yes, he would definitely be getting sentenced to prison just for mishandling classified documents, regardless of his reason, because that's what happens with everyone else who mishandles classified documents.

[10:19] Micah Lee: I believe the Espionage Act of 1917 needs to be reformed so that it can no longer be used against journalists or their sources. The main thing that I would do is reform the Espionage Act to make a public interest defense, to make it so that if you actually can explain why your mishandling of classified documents was for the public good, then it's not illegal. I mean, I think that really it should be reserved just for people who are actually selling out their country, who are actually trying to profit from classified information, or who are actively trying to help an enemy country. But, like, sending classified information to journalists, there are still arguments that this could be hurting national security in some cases, but I think in other cases that that's not the case at all.

However, most of the American public isn't familiar with the Espionage Act, so there isn't a public interest in reforming it. I mean, I think that really, like, the times where the Espionage Act has been the most abused, which was really starting under Obama and then kind of, like, expanded quite a bit under Trump, that's when there was the most, like, news around the Espionage Act and, you know, how it's being abused, basically, to go after journalists. And I think that that's when probably there would have been the most appetite to do some reform of it. And in some ways, the fact that the Biden administration just isn't going that route, I think, is making people, like, you know, not really feel like it's a problem.

But, you know, it is still a problem, but also there's future administrations. What happens if Trump gets elected again, right? Like, in the next decades and decades and decades of this country, like, this is just a tool that the federal government has to go against people that, in many cases, really try and just, like, explain things that are completely hidden to the American public that are very wrong.

[12:39] Micah Lee: Daniel Hill is a whistleblower who was charged with espionage under the Espionage Act for leaking a bunch of documents related to the drone program and the fact that, like, you know, the U.S. has this massive targeted killing program where they have this giant list of people to assassinate, and then they have these robots flying through the skies assassinating them. And nobody really knew any details about it because it's all classified until he leaks these to journalists. A small number of people are willing to risk it for the greater good. But, you know, sometimes people feel like they really need to because of the terrible things that they're witnessing. And it's a very hard choice. If you suddenly realize that the organization that you work for is doing some, like, very despicable things, you know, you just know that there's this, like, massive, you know, program that is, you know, has a list of people to kill and that, like, part of the whole drone documents showed that everyone that died from a U.S. drone strike that wasn't the target but that was, like, male and older than 16, they just, like, classified them as an enemy, as, like, a military age male.

[14:01] Micah Lee: I don't know. I don't really think they are. I think that the Biden administration has not been focusing on going after journalism and going after whistleblowers the same way that the Trump administration and the Obama administration were. But the laws are the same. Like, if the Biden Department of Justice decided that they really didn't like something that came out, they can still use the Espionage Act against the people that they don't like that are publishing stories against them. Yeah, I think that it's very rare that, like, if law enforcement gets new powers that they're willing to give them up. I don't think this problem is going away. I think that, you know, there will continue to be whistleblowers.

I think that it is getting harder and harder and harder for whistleblowers to blow the whistle and not get caught. It's an entirely different situation than it was with Daniel Ellsberg, where he could just take paper documents from a safe and spend a few weeks photocopying them. But, you know, on the other hand, it doesn't take a few weeks at, like, in a basement photocopier. It takes like 10 minutes and a USB hard drive. So it also is in some ways easier for whistleblowers to get lots of information and move it around. But I think it's kind of unrealistic to think that unless they are very, very, very sophisticated that they can do this without getting caught.

[15:30] Micah Lee: In our next episode, we will speak with Reality herself and with Billie Winter Davis, Reality's mother, about Reality's petition for clemency and how the family is dealing with current events. We're incredibly grateful to our special guest, Micah Lee. Reality's interrogation by the FBI was captured in the critically acclaimed Broadway play Is This a Room, conceived and directed by Tina Satter. This podcast is created, written, and produced by Dori Berenstein, Sally Horchow, and Rebecca Aparicio and the Broadway Podcast Network. Sound engineers are Alan Seals and Kimberly Garris. Editor is Alan Seals. Executive producer is Liz Armstrong. And a giant thank you to the team at the Broadway Podcast Network for their tremendous work on This Is Reality.

Kimberly Garris, Bea Westby, Michaela Brewster, Mattie Page, Ethan Nienaber, Alison Arnes, Andrew DeWolf, and Eli Tokash. This Is Reality is part of the Gotham's fiscal sponsorship program under the Sound and Light Project. You can take action to help pardon Reality by signing the petition at standwithreality.org. For more information, visit bpn.fm/thisisreality. And make sure to check out all the podcasts on the Broadway Podcast Network. And please join us for the next episode as the story unfolds on This Is Reality.