While former President Donald Trump is now charged with numerous crimes, including violating the Espionage Act, one of America’s most respected legal minds says prosecutors shouldn’t be allowed to say a single word in court that might hurt the jury.
In a column published this week by Alan Dershowitz, the emeritus professor at Harvard Law School, he says that 1917 is actually “misnamed because it covers a large number of crimes that do not involve espionage or the passing of secrets to the enemy.” . In fact, over the years it has been widely used against patriotic Americans who have opposed wars and dissented from other government actions.”
“In Trump’s case, he is charged primarily with illegal possession of allegedly classified material.
“But because he has been charged under the Espionage Act, many people have been misled into believing that the charges against him have anything to do with spying, espionage, or even treason.”
Dershowitz says that the use of the electronic word is “extremely damaging” to Trump, at least in the court of public opinion.
“It would be even more damaging in a court of law if the jury heard that word in connection with your case.”
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The famous law professor suggests that Trump’s lawyers “immediately act on what is called an in limine motion prohibiting the use of the word espionage by prosecutors, whether inside or outside the courtroom, but especially in front of the jury.”
“’Espionage’ has no relevance to the upcoming trial. He associates Trump with some of the worst offenses imaginable.”
It reminds Americans that Julius and Ethel Rosenberg were executed for espionage and that numerous former government officials have served long sentences for the same charge.
“Those defendants actually provided classified and secret information to our enemies,” he writes. “Trump should not be painted with that envious brush, based on the evidence in his case.”
Dershowitz says it’s not uncommon for judges to bar prosecutors from speaking prejudicial terms in front of jurors.
“The judge generally weighs the probative versus detrimental impact. In criminal cases, judges must always err on the side of protecting the rights of the accused.”
“This is not a hard case for banning the use of the term espionage, as it has little to no evidential effect and great potential for bias. That the name of the statute uses the word is no excuse for letting the prosecution use it. Often statutes have broad names that have little or nothing to do with the charges in a particular case.”
As an illustration, Dershowitz proposed a hypothetical example:
“Congress passes a statute and titles it the ‘Insider Abuse and Insider Trading Protection Act.’
“Should prosecutors be allowed to mention the first part of that statute in a case that doesn’t involve child abuse? Of course not.
“Nor should the prosecution in this case be allowed to mention the word espionage, even though Congress misnamed the statute with that loaded term.”
The professor says that in the Trump case, “reference to the law should only be made by mentioning the alleged illegal possession of classified material. That is the essence of this prosecution, and the defendant should not be prejudiced by reference to other aspects of the statute that are not directly related to this case.”
It adds that it is not too soon for Trump’s lawyers to file this motion, as “Trump has already been hurt by media references to the law’s ‘spying’ title.”
“The court can’t stop the media from using that word, but by explicitly dropping it from the trial, it can have an impact on public opinion and therefore the potential juror pool,” says Dershowitz.
“Espionage is a word that denotes some of the most perverse intentions on the part of the defendants. The impact may be subtle, even unconscious, but it is real.”
He acknowledges that “any mispossession of highly classified material may pose a danger to national security if it falls into the wrong hands. But that would also be true of the misuse and possession of classified material by others who have not been charged, such as President Joe Biden, Vice President Mike Pence, and former presidential candidate Hillary Clinton.”
He concludes by saying that ‘the media themselves should be more responsible and explain that the charges are under provisions of the statute that have nothing to do with espionage.
“In any trial of Donald Trump, there will be bias on both sides. He is hated and loved by people who have already chosen sides.
“It will be quite difficult to select jurors who are able to consider the evidence without bias or prejudice. The court should do everything possible to reduce those risks to a fair trial.”