On April 8, the Justice Department announced the arrest and indictment of Courtney Williams, a former member of the Special Military Unit at Fort Bragg in North Carolina on charges of violating the Espionage Act for allegedly leaking “classified national defense information” to a journalist.
Seth Harp, a journalist who published a book about the Special Military Unit called The Fort Bragg Cartel, had — in it — covered Williams’s story of sexual harassment. Politico published an excerpt from the part of the book that focused on Williams in August 2025.
Among the people who noted the new prosecution was Heidi Kitrosser, a law professor at Northwestern University’s Pritzker School of Law. She has written at length about the concerns that prosecutions of media sources under the Espionage Act raise — and raised particular concerns about that happening under the Trump administration.
On Friday, Kitrosser joined Law Dork to talk about the law, its history and uses, and why she was concerned about this week’s news.
Thank you to everyone who tuning in live for my discussion with Heidi Kitrosser! Join me for my next live video in the app.
Here is a lightly edited transcript of our conversation.
LAW DORK: We are lucky to have Heidi Kitrosser here today with us from Northwestern. She’s the William W. Gurley Professor of Law, and we are here today to talk about something that certainly didn’t begin with the Trump administration, and we’ll get a little into that as well. But this idea that there have been an increasing number of efforts by the Trump administration to go after journalist’s sources with criminal criminal prosecutions, and we’ll look a little more broadly at that at some points, but that was sort of our starting place, because earlier this week, separately, Heidi and I both got wind of this announcement that there was a new media source prosecution in North Carolina. And so I guess to start off, Heidi, I mean, first of all, just thanks for being here. But what is this new prosecution?
HEIDI KITROSSER: Yeah, so, and thank you for having me. So this was announced, I think, just two days ago by the Justice Department. And I have, I’ve looked for the indictment, I haven’t seen it yet, so I’m guessing it’s —
LAW DORK: I just saw the information with the affidavit.
KITROSSER: Yeah, exactly. I think it’s probably still sealed, is my guess. But yeah, I just saw the Justice Department’s announcement and did a little bit of reading to try to add a little more context. And it looks like, from what I can kind of pull together, that this is this prosecution originated with — the idea for it originated with a story that was published some months ago by a journalist named Seth Harp, who writes for Rolling Stone and also has a bunch of bylines in other places. And he wrote a book, as well as an excerpt from the book published in Politico, that, among other things, was a bit of an expose about Fort Bragg and about one woman’s experience, one officer’s experience with alleged sexual harassment and various other types of wrongdoing that she, you know, reported to be blowing the whistle about and the Trump administration has indicted her, arguing that the story revealed classified information, and that she therefore revealed classified information to the reporter, and so they’re indicting her under the Espionage Act of 1917 and depending on how you count, it’s either the second or the third such prosecution in the second Trump administration.
LAW DORK: I dropped the link to the Politico story in chat for anybody who wants to look at that. Yeah, and he then published, Seth Harp, published this book that’s the The Fort Bragg Cartel: Drug Trafficking and Murder in the Special Forces. That appears to have been the genesis of this, and the Politico story was a chapter or an excerpt. Obviously, the Justice Department puts out their press release. They say, “Former Army employee and top secret clearance holder, arrested and charged with leaking classified national defense information.” Obviously, sounds pretty bad. They say that she was indicted, as you mentioned, and I mentioned, we haven’t been able to find the indictment, although I admit I did not look today to see if something had been unsealed, but had looked yesterday and it had not been unsealed. We’ve read — there’s an affidavit that was submitted for the criminal complaint that allowed for for her arrest. And I guess, before we go big picture, the one thing that I noted is that she is in jail right now, Courtney Williams, and she won’t even have her detention hearing until the 13th, the government is seeking to keep her detained during trial until this case is resolved. What should people be thinking about when they’re looking at this case over the next week?
KITROSSER: From my perspective, I would say one of the most important things. I mean, there are so many different elements and aspects to think about, because I’ve thought so much over the years about the Espionage Act and its relationship to the media and free speech. From my perspective, I would say it’s important to sort of step back and understand what an Espionage Act prosecution of a media source is about, what the statutory basis is, as well as what the implications are for free speech. And I sort of say that with awareness of the fact that I think to any average person, even your average lawyer, who may not have thought in depth about, if at all, about the Espionage Act. It does, as you said, it sounds just really damning when you say so-and-so might have provided classified information to a reporter, or when you say so-and-so has been indicted for violating the Espionage Act. But I submit it’s much more complicated, and I’ll give the very short, like two-sentence version why, and then can elaborate from there.
Sort of the two-sentence version why is because, despite the name the Espionage Act, the act and the relevant provisions in this case and other cases about media sources actually cover so much more than what we think of as espionage and spying. The language is broad enough. It could cover sources who try to shed light on important events and bring them to the media. It could cover journalists, and so I think that should concern us, and particularly when you combine the breadth of the act with the breadth of the classification system and the breadth of the secrecy system more broadly, because — for reasons I can get into, if you’d like — the Espionage Act actually isn’t necessarily limited to just classified information, it covers any closely held information. So this is why I think it’s all very, very worrying from a free speech perspective.
LAW DORK: I mean, and that’s also important, because that sort of then dovetails with a lot of the disputes that they’re having over the Pentagon Press policy, and the things that they’re trying to get them to agree to that have now been been blocked, sort of multiple iterations of this policy. Most recently, last night, Judge Friedman issued an order essentially, I mean, not essentially, but saying that the Pentagon, with their interim policy, had violated his first order. And one of the big elements of his original ruling and Thursday night’s ruling is this idea that so much of what they’re trying to control the dissemination of is not classified information.
KITROSSER: Yeah, absolutely. And actually, there’s a terrific piece in Just Security co-authored by my friend Dave Schultz, who runs Yale’s Media Freedom Information Access Clinic, and Brian O’Neill, I believe, is his co-author. It’s from a few months ago, but they talked about that Pentagon policy, as well as sort of myriad other ways that the Trump administration is seeking to crack down on conveying information by the press or by the public, including, but well beyond classified information, essentially trying to clamp down so that only communications that they want people to see can be released to the public, even if it doesn’t involve classified information. And they actually talked about how that intersects with the Espionage Act, essentially making the argument that because the Espionage Act is actually not limited to classified information, it covers — essentially the way the courts have interpreted its coverage — they’ve interpreted to include anything that’s closely held. They argue that by clamping down more and more and making more and more things closely held, even if they’re not classified, that they’re broadening the scope of what could be the subject of an Espionage Act prosecution.
LAW DORK: And now I mean, sort of stepping back, you, you, you mentioned David Schultz, your co author of your 2021 article, that that really dives into this. And I mean it right from the start, A House Built on Sand: The Constitutional Infirmity of Espionage Act Prosecutions for Leaking to the Press. You don’t hide your conclusion there. What is this? I had sort of been aware through following it in the Obama administration, sort of how this has developed, but I thought it was so succinctly and clearly described that, like, how did we get here, in terms of this sort of broad understanding that that this is not something that the Trump administration can’t do.
KITROSSER: So let me start with the text of the act, because I’ve sort of alluded to it, but, and to its breadth, but, but I haven’t really talked about the important parts. So the act is, as I mentioned, it’s kind of stunningly broad in terms of what it covers and the relevant parts that usually come up in cases involving media sources are 18 USC Section 793(d) and 793(e). They’re very similar provisions. The difference is that (d) covers leaks by people who had authorized access to the information. So that would be a classic case of someone who is within a department, within an agency, had security clearance and then leaked it; (e) covers could cover anyone, whether you had authorized access or not, and that’s the provision, by the way, that many consider kind of a smoking gun that could be used potentially against the media. But they’re very similar. And essentially what they both say, it’s very, very simple. The main thing they both say is that, and I’m going to look over here, because I always forget the exact wording. I have some of the key wording here, but really the key provision is that the law criminalizes taking information, “relating to the national defense,” and either retaining it in some unauthorized way or conveying it to someone who’s not entitled to receive it, and you must do so willfully, which courts have said, basically means you have to do it knowing that you’re not supposed to do it under the law. That is, I mean, there’s some elaboration on the different ways it may be communicated, the types of documents or information that’s covered, but for the most part, that is really the thrust of it. The operative words are “relating to the national defense.”
That’s really the only statutory requirement in terms of what the information has to convey. There are a few more words that I can talk about if you want, if you’re talking about information that’s conveyed orally, if you’re talking about, although they don’t add much elaboration, if you’re talking about conveying documents, that’s it. All it says is information “relating to the national defense.” The way courts have broadened that over the years is they said, “Okay, well, we’re going to interpret that to mean —” And here I’m looking at the language again, so I get it exactly right. They’re saying, well, we can add two requirements to that. We think information relates to the national defense, if it’s disclosure, would be “potentially damaging to the United States or potentially useful to an enemy of the United States.” And if it’s closely held. In my view, the problem there is, again, the breath. In particular, the kind of damage requirement is that you need nothing more than to show it could be potentially damaging to the US, potentially useful to an enemy. In my view, that could cover virtually anything.
LAW DORK: Yeah.
KITROSSER: And, so that really is the crux of the problem. Effectively, I think the only real limitation here is the fact that it has to be closely held. But given how broad the classification system is and how broad also the scope of unclassified but closely held information — and growing — is that’s very problematic. And if I could just add one more thing, I have noticed. I’m certainly not looking closely at the comments, but I did notice one or two comments that said something to the effect of, you know, that they think in the Courtney Williams case that we were just talking about, that they read some things suggesting that maybe what she released really was damaging. I haven’t gotten enough into that case. I don’t even know that there’s enough publicly out there to really reach an informed judgment about about the particular information she provided. But I would say what I find disturbing in any case, every case that’s brought with respect to a media source, is that under the Espionage Act, you don’t even need particularly compelling facts, right? The only harm requirement is the one I mentioned. There’s no public interest aspect. There’s no potential public interest defense. So that’s what’s troubling. Even if somebody reads about this case, or in other cases as well, you know, “I think that person did the wrong thing.” The problem is, you really don’t need to reach that conclusion in order to be culpable under the act.
LAW DORK: And now, I mean, I thought it was really interesting in the article, like, when you talk about how this was built, and this idea that — and why, even at the start, you talked about, “well, you hear the Espionage Act and you think, ‘Oh, this is, this is espionage. This is, this is bad stuff.’” But then, what happened is that, essentially, you started getting cases here and there, that built one on one, and all of a sudden, then it’s the situation where it’s now precedent. “We we have this, and that makes it a obvious fact that this is going to be something that you can prosecute somebody for, because we have these three cases in the past.”
KITROSSER: Yeah, absolutely. And so let me say a little bit about that. First. I just can’t resist noting that when Donald Trump himself was prosecuted under the Espionage Act for those buckets and buckets or boxes and boxes of classified information that he had in a bathroom in Mar-a-Lago and in other places. I always find it kind of darkly humorous to think back to something he said to disparage his own prosecution under the Espionage Act. He said, “Can you believe it? The Espionage Act? Oh, they’re going after me with this obscure act that nobody’s even heard of from 1917. It’s meant for spies, for traitors, for leakers.” I always like to keep that in mind, but in terms of the history that Chris was referencing, the act, it does go back to 1917. It was passed on the eve of World War One.
There was a pretty exhaustive historical analysis that was published in the early 1970s — prompted, by the way, by the leak of the Pentagon Papers, which was briefly the subject of an espionage prosecution that maybe I’ll get to it a second. But that prompted a couple of scholars to do a pretty in-depth analysis of the legislative history. And what they concluded, basically, was that Congress, both in 1917 and, interestingly, again, in 1950 when they made a few important revisions to the act, but not really to the provisions we’re talking about, that they didn’t really think all that much about these particular provisions. About 793(d) and (e), and to the extent that they did think about it and that it did occur to them, or that the point was raised that, “Gosh, this is kind of broad. It could include people who give information to the media. It might include the press,” that they actually expressed some worry about that, and, in fact, rejected one or two provisions that would have made it more likely that the law could be used that way. For the most part, though, they seemed somewhere between confused to not really focused on these provisions.
You might say, “Well, how could that possibly be?” One reason for it is because at the time, there were much higher profile provisions elsewhere in the act that actually directly attacked the expression of opinion — language that talked about doing things that might deter military recruitment and things like that. So the upshot being, these provisions that we’re talking about didn’t seem to be very much on their mind. I think another very good reason for why they might not have been that focused on it — it’s very easy to imagine that everything at the time was sort of similar to our world, right? And that they had a classification system. They understood that secret information could include millions and millions of documents. But actually the other difference was that there certainly wasn’t anything approaching the modern classification system at the time. There were military secrecy regulations. There was not government-wide classification. A government-wide Executive Order-created classification system didn’t exist until Franklin Roosevelt introduced one during World War Two. We didn’t have a peacetime classification system until 1951. So I think that was another thing that was going on. If you’re going to imagine that the act could only be applied to sort of closely held military information, there just wasn’t a lot that fell into that category at the time. So it really didn’t seem to be on almost anyone’s mind.
So not surprisingly, it wasn’t until about 40 years later that the Justice Department first brought a prosecution to someone for leaking information to the press. The prosecution had mixed success. It resulted in a plea bargain to a lesser charge. It was actually quite a controversial prosecution. Members of the press were alarmed. Ultimately, the person who had leaked information was kind of widely considered to be vindicated in light of subsequent developments. They didn’t try another prosecution like that until the Pentagon Papers, when they prosecuted Daniel Ellsberg, his friend Anthony Russo, for leaking the papers to the New York Times and elsewhere. And that ultimately resulted in a mistrial because of what today seem like the quaint shenanigans of the Nixon administration. My favorite thing they did is they tried to bribe the judge by offering him the directorship of the FBI. They famously bugged Daniel Ellsberg’s psychiatrist’s office.
They didn’t try again until the late 80s, and then they kind of struck gold. They got a prosecution of a guy for leaking some photos to a kind of military-oriented magazine about military ships and things of that nature, called Jane’s Fighting Ships. And the really important thing that came out of it was they got this precedent that still remains the only federal appellate court decision weighing in on the constitutionality of the Espionage Act as it’s applied to media sources. If you want, I can sort of get into the three different opinions, but for now, I’ll just say that the majority in the case was extremely dismissive of First Amendment considerations. And then that’s kind of snowballed.
Despite this success, there was not actually another prosecution under the Act until the post 9/11, years. There was one arguably related prosecution in the George W. Bush administration, but it really wasn’t until the Obama administration, in part because a bunch of these prosecutions that began to be investigated in the George W. Bush administration kind of grew up and matured by the Obama administration. I think there are other reasons for why we saw this huge wave of cases in Obama, but suffice it to say, the Obama administration really did break sort of unfortunate ground. They prosecuted, I believe it was eight media sources under the Act, and that really got the ball rolling. And subsequent district court cases where people have challenged these prosecutions have just cited the Fourth Circuit case, the case I mentioned, it’s called Morrison. And the one other thing I’ll add, and then I’ll stop, is that the other thing that I think helps to explain the Fourth Circuit’s decision in the Morrison case in the late 1980s that I mentioned —
LAW DORK: And I should say, the Fourth Circuit — for people who aren’t focused on this — the Fourth Circuit of the 80s was how we think about the Fifth Circuit today.
KITROSSER: Yeah.
LAW DORK: It was where the most far right opinions sort of were evolved and sort of manufactured.
KITROSSER: Yeah, that’s a great point. And then the one other thing I would add to what might have sort of aided the Fourth Circuit in drawing the conclusion they did, is that this gets us back to the fact that the Act had a bunch of different components, and also even the provisions that we’re talking about, they have another more obvious application, which is you can also apply these provisions to spies. And so even though you didn’t have a media leak prosecution until 1957, you had a couple of earlier uses of these provisions to go after spies. So there had been a couple of cases, including one Supreme Court case, actually the only one on this issue to this day, called U.S. versus Gorin. I believe it’s called from, I think the early 1940s, I’m forgetting the exact date. But in that case, and in a couple of appellate court cases, courts had looked at the provisions we’re talking about, but only as applied to spies, and they had basically said, yeah, these are fine. They’re not too vague, they’re not too broad. I think that’s — for various reasons we can talk about, if you’d like — I think that’s an easier conclusion to reach when you’re talking about a spying prosecution. And so that also led to a snowball effect, I think, where the the Fourth Circuit then, when we’re talking about a press source, borrowed from those and said, “Well, there wasn’t a problem there. We’re talking about similar language, or the same language. So, we don’t see a constitutional problem.”
LAW DORK: And so some of what you talked about the that I noticed on on Bluesky, and what you are working on with an article that you let me look at is this idea of how this — specifically, this precedent, this sort of building on sand, this snowball effect — how this is particularly concerning in this second Trump era and administration. I mean, I was on the train home from New York on Tuesday, writing about, whether he was going to destroy a civilization that night. Everything is amped up and to a degree that powers of the executive haven’t been used before. In one sense, I think it’s obvious why it’s concerning, but you’ve actually thought about how this works with the Espionage Act, and why it’s so concerning. And so I’d really love to hear what you’re thinking about on that front.
KITROSSER: I guess you could say there are sort of multiple historical stages of like level and type of concern, ever since the Espionage Act was created. So for a long time, I think the best way to put the basis for concern, starting in 1917, would be the potential for harm — sort of the Chekhov’s Gun thing that, “Oh, my god, they’ve, like, introduced this gun, and at some point it’s going to go off.” But it was just potential, for many years. Once we started seeing a slow trickle of prosecutions, obviously we saw the potential realized to some degree.
So the 1957, the prosecution of someone named Nickerson that I mentioned, the first prosecution. I mentioned that was controversial. Nickerson was largely understood to have been vindicated. That’s because Nickerson was basically spilling the beans about sort of cost overruns and possible corruption — I think today we might consider it very light corruption — in terms of choosing government contractors. He was arguing for a particular program that they were making a bad choice because they wanted to award it to a company that had friends in the administration. And he was largely seen as sort of having been vindicated in his thoughts. I think that sort of was the beginning of seeing the potential of the Act’s breadth realized.
One big fear of the Act is that it’s so broad and there’s so much classified and closely held information, especially over time that’s been true, that a prosecutor, that the government just sort of has their pick of targets. And so one fear is that they’re going to go after people who say things they don’t like — not necessarily because it’s the most dangerous thing for someone to say, but because it embarrasses them or somehow makes the government look bad. I think that’s the judgment of history. I think most would suggest that’s very much what was going on with the Ellsberg prosecution as well. In the Obama administration, I think we saw a couple of examples of that as well, where people who I think could fairly be considered whistleblowers, and who actually had, in a couple of cases, revelations that resulted in really important journalism, who were prosecuted.
I think the Trump administration just ratcheted up to just like crazy, high levels. So my anxiety is off the charts, if we’re talking about different levels of concern. Now, it’s just unprecedented. I always like to point out that Trump loves the turn of phrase, “It’s like no one has ever seen before.” I feel like the reason for anxiety is “it’s like no one has ever seen before now.” And the reason for that is because you take all the old issues with the act right, which is the potential for abuse; some bases to think that, in fact, government might really be targeting people who are not necessarily saying the most dangerous or irresponsible things, but who are embarrassing government or revealing incompetence, abuse, etc.; and then you add to it the personal vindictiveness of this administration, and there’s reason to fear this is an administration that is going to start using the act to go after just people that Trump doesn’t like.
Maybe the most obvious example of that — so far, there have been three Espionage Act prosecutions I mentioned in this administration. There’s some quibbling about whether one of them would count as a media leak prosecution, and that’s the John Bolton prosecution. The reason for that is because the nature of the charges are that he emailed documents to family members who were helping him compile his book, but not that the information actually ended up in the book. I actually think it’s fair to consider that a media leak prosecution for reasons I explained in the paper that I’m working on. But in any event, I think that, more than anything else, just exemplifies the risk that this statute will become just another tool that gives the president huge discretion to go after people that he just doesn’t like because he considers some political enemies.
LAW DORK: You’re essentially saying this is a blunt tool that can be used in virtually any way, and it has very, ultimately very low thresholds for being used. The one thing that I was thinking about this when reading your piece is that he can use it as “They are harming America.” It gives him that rhetorical, like just the prosecution itself gives him a rhetorical weapon that he can use on Truth social and in speeches and stuff like that.
KITROSSER: I think that’s exactly right. The very title that he mocked when he was prosecuted under it — the Espionage Act, right? It enables you to say, “I’m going after people who are conducting espionage, people who are leakers and traitors and hate our country, and they’re sharing our darkest secrets.” All of that said, the flip side, if you have to look for a silver lining here — and there’s something wrong with me, where I always try to do that and try to look for “Is there a ray of hope?” — and I do think one is that the obvious vindictiveness of this administration and the weaponization of the Justice Department under this administration might open people’s eyes to the need for reform of this act, that it’s a very dangerous tool to place in the hands of the government. And we have seen, by the way, Representative Tlaib, I’m not sure I’m pronouncing her name correctly, about four weeks ago, I think, she introduced an act, the name is the Daniel Ellsberg Act, that would make some really important reforms to the Espionage Act. It’s not going to happen with the current Congress, but maybe it’s the beginning of an important conversation.
LAW DORK: Is there any sort of last — we’ve noted in chat, I don’t know if you had seen it, that the indictment was placed on the docket. There is now a criminal docket today. It’s four counts and a forfeiture count, and they’re all Section D. I’ll certainly be watching that. I know you’ll be reading it. Is there any sort of last comment that you want people to leave this conversation thinking about?
KITROSSER: I guess I would say two things real quickly. One is, I’m largely reiterating something I said earlier, but to the extent that you’re looking at particular cases and saying, “Oh, but what they did seems really bad.” I would say that might, in any given case, well, be true, right? I’m not weighing in on the facts of any particular prosecutions right now, certainly not the latest one, that just we haven’t seen a lot of information yet come to light. But I think what’s really important is to keep in mind the breadth of the Act, and the fact that it doesn’t have to be a dangerous leak. It could be a leak that any danger is far outweighed by public interest, and, under the Act, those factors are irrelevant. Second, I would say, if this is something that concerns you, maybe look up the Daniel Ellsberg Act that I just mentioned. Think about contacting your congresspeople and telling them that you support it.
LAW DORK: Thank you so much. Thank you to everybody for joining us. Thank you for all of your expertise that you shared with me and all of our fellow listeners here on this Friday afternoon. And have a great weekend.
KITROSSER: Yeah, thanks. Thanks everyone. Thank you so much, Chris. I love your show. Big fan. So thank you for including me. Bye, everybody.
