Donald Trump is accused of violating the Espionage Act — so were the Rosenbergs
Donald Trump speaking in Greensboro, North Carolina, in June 2023. Photo by Getty Images
By Benjamin Ivry June 12, 2023
The Espionage Act of 1917, under which former president Trump is currently being prosecuted, was enacted soon after the United States entered World War I, to block interference with military recruitment, prevent insubordination and discourage support of the enemy. More recently employed to target national security leakers and whistleblowers, the Espionage Act has a long history of use against Jews (as well as non-Jews), and occasionally even of defending them.
Among the most notorious violators of the Espionage Act were American Jewish atomic spies Ethel and Julius Rosenberg, prosecuted by the Jewish U.S. Department of Justice attorney Roy Cohn, arch-villain of Tony Kushner’s play Angels in America. And of course Cohn was a mentor and crony decades ago to Trump.
This historical irony appears to validate the text from the “Pirkei Avot” (Ethics of the Fathers 4:2) that “one transgression (Averah) brings on another” just as “one mitzvah leads to another.”
Among Jews sanctioned by the Espionage Act for what might seem like mitzvot were the Austrian-born newspaper editor Victor Berger of Wisconsin, the first Socialist ever elected to Congress, and anarchists Emma Goldman and Alexander Berkman.
As a Socialist, Berger opposed U.S. intervention in the First World War, which led to his indictment in 1918. The following year, Berger was convicted and sentenced to 20 years in federal prison.
Emma Goldman was editor of Mother Earth, an anarchist publication that was shut down in 1917 under the Espionage Act, which made it illegal to oppose the government. Goldman was among the defendants in a 1919 case where the Supreme Court upheld the conviction of activists for distributing leaflets advocating their political viewpoints.
In addition to these celebrated convictions, the Espionage Act was also wielded against obscure Jews who never recovered from the experience.
One such was Robert Goldstein, a Los Angeles costume supplier of German Jewish origin. Goldstein provided the costumes for D. W. Griffith’s 1915 film The Birth of a Nation and decided to write and direct his own silent epic about the American Revolution.
The resulting 1917 film, Spirit of ’76, is now lost but descriptions show that it focused on atrocities. British troops in the 18th century behaved, perhaps not coincidentally, like Cossacks during contemporary antisemitic pogroms in Russia, bayoneting babies and raping women.
A number of Jews transcended origins in the schmatte trade to become famous producers, like Germany’s Carl Laemmle, Hungary’s Adolph Zukor and Poland’s Samuel Goldwyn.
Unfortunately, Robert Goldstein was not destined to be counted among these success stories. His film was seized by the police in Chicago, on the grounds that it was anti-British. As sociologist James Loewen has observed, President Woodrow Wilson made a point of suppressing any potential hostility to the UK. Offending a future combat ally was seen like helping the adversary, Germany.
Although Slate Magazine has dubbed Goldstein the “Unluckiest Man in Movie History,” luck really played no role in his trajectory. Goldstein was charged in federal court with violating the Espionage Act and sentenced to 10 years in prison, of which he served three.
A later attempt to work as a director in Europe failed, and one biographer even presumed that he was likely murdered in a Nazi concentration camp.
However, later researchers uncovered documents suggesting that instead, Goldstein was deported back to the U.S. from Germany in 1935. He might have been incarcerated at Rikers Island in New York and Willard Asylum for the Chronic Insane in the Finger Lakes region of New York.
The archives of the Academy of Motion Picture Arts and Sciences preserve letters from Goldstein, pleading for rachmonis, apparently to no avail: “I am merely a lone man suffering a great wrong for no reason whatever, can you refuse to help me obtain justice? I have never done the slightest thing to warrant this persecution and prejudice against me, which denies the very right to exist.”
Yet although Goldstein’s laments went unheard, the Espionage Act was also used to combat American antisemitism. In 1942, Father Charles Coughlin’s weekly publication Social Justice was denied a postal permit. Its circulation was halted as part of Attorney General Francis Biddle’s endeavor to shut down what he considered “vermin publications.”
Coughlin, a once-omnipresent Catholic priest based near Detroit, became a radio celebrity with broadcasts such as one in 1938, defending Kristallnacht, the Nazi assault on German and Austrian Jewish synagogues and businesses. Coughlin asserted: “Jewish persecution only followed after Christians first were persecuted.”
Believing that Jews were guilty of advancing communism in Russia, Coughlin reprinted in Social Justice texts from the notorious antisemitic forgery The Protocols of the Elders of Zion and put his byline on lightly rewritten speeches by Nazi Propaganda Minister Joseph Goebbels attacking Jews.
By contrast, in a 1944 case, the Supreme Court overturned the conviction of O. M. Hartzel, who had been indicted under the Espionage Act for sending propaganda to members of the military, accusing President Franklin Roosevelt of “allying with Jews” by going to war with Nazi Germany. The court decided that there was no proof that Hartzel intended to cause insubordination, although Felix Frankfurter, an Austrian Jewish associate justice of the U.S. Supreme Court, was among those who dissented.
Less than 20 years after Julius and Ethel Rosenberg were electrocuted at Sing Sing Correctional Facility, the Chicago-born American Jewish activist Daniel Ellsberg was charged with a felony under the Espionage Act for publishing classified documents eventually known as the Pentagon Papers to oppose the Vietnam War. After a mistrial was declared, Ellsberg and a codefendant would be freed.
And just over a dozen years later, U.S. Navy civilian Jonathan Pollard was charged with violating the Espionage Act for selling classified information to Israel. Although given a life sentence, Pollard was paroled in 2015; in 2020 he relocated to Jerusalem.
Among other prosecutions that led to convictions and jail sentences was one meted out to Shamai Leibowitz, an American lawyer and blogger who pled guilty to one count of disclosure of classified information for sharing FBI information with another blogger.
Grandson of the Israeli Orthodox Jewish public intellectual Yeshayahu Leibowitz, Shamai Leibowitz was sentenced to 20 months in prison.
Sometimes the mere threat of prosecution under the Espionage Act has sufficed, as when the American Jewish attorney Sandy Berger, who served as national security adviser during the Clinton administration, pled guilty to a misdemeanor for allegedly removing classified documents in 2003 from a National Archives reading room before testifying to the 9/11 Commission.
The documents, dealing with foiled plots to attack the United States in 2000, were reportedly hidden by Berger in his socks and pants.
This inexplicable lapse did not prevent President Barack Obama from lauding Berger, when he died a decade later, for having “devoted himself to strengthening American leadership in an uncertain world.” Obama added that Berger was a “humanitarian who helped the world respond to crises and feed the hungry.”
Berger was a rare example of an American Jew who achieved reputational redemption after having the Espionage Act wielded against him. More often, others have found it a crushing experience, as ex-president Trump may one day discover.
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