Did The Atlantic’s Jeffrey Goldberg Violate the Espionage Act?

By now, virtually anyone who pays attention to the news knows that Jeffrey Goldberg, editor-in-chief of The Atlantic, was accidentally added to a high-level federal groupchat message on the Signal messaging app, and received plans relating to the planned strike on Houthi rebels in Yemen. Goldberg wrote that, the “post contained operational details of forthcoming strikes on Yemen, including information about targets, weapons the U.S. would be deploying, and attack sequencing.”

The White House and federal officials have admitted that placing Goldberg into the groupchat was a mistake. They say the facts will be thoroughly investigated to learn exactly how it happened so that measures can be taken to assure there are no reoccurrences. They also claim that while this error should never have occurred, nothing bad resulted. It was an error without consequences and everyone will, as a result, be more vigilant to prevent any repeat.

But this has turned into a huge story in the press. At the White House press briefing on Wednesday, almost every question asked by the press related to this incident, and many media outlets wanted to know if, and why not, anyone would be fired. They called for the firing of National Security Advisor Mike Waltz and Defense Secretary Pete Hegseth. This is the same press that did not call for anyone to be fired when American soldiers were killed during the disorganized retreat from Afghanistan, or in connection with the Russian Hoax, or the two completely fabricated Trump impeachments in his first term, or the absurd intelligence claims that Hunter Biden’s laptop was a creation of Russian disinformation. But they are out for Republican blood, and the groupchat mistake has given them what they see as an opening. The fact that the strike on the Houti rebels was not compromised, and that the attack was a total success, is of no importance to the media. The only thing that seems to matter to them is that a mistake was made and that heads should roll. Oh, the only heads they want to roll — and this means people to be fired — are Republican officials, as the media works diligently to degrade the Trump Administration’s ability to function.

We believe people are people, and people can make mistakes. What matters, of course, is that mistakes are taken as lessons and the mistakes are not thereafter repeated. Who, among us, has never sent or received an email or text message, intended for someone else, perhaps someone with a very similar phone number or email address?

We’re not going to recount the Goldberg story here. It’s everywhere else in the media, and it’s not worth repeating here.

But the question we are wondering about is, if you, as an ordinary American, suddenly and unexpectedly receive classified documents relating to war plans, is it your right to publicize those plans, or are you violating the federal Espionage Act by reprinting and publicizing what you received. Clearly the government made a mistake in sending this communication to one person who was not entitled to receive it. But he, in turn, distributed it to the entire world. Is that action criminal? Pursuant to 18 U.S.C. § 798

(a) Whoever knowingly and willfully communicates, furnishes, transmits, or otherwise makes available to an unauthorized person, or publishes, or uses in any manner prejudicial to the safety or interest of the United States or for the benefit of any foreign government to the detriment of the United States any classified information–

Shall be fined under this title or imprisoned not more than ten years, or both.

Perhaps this statute reaches the conduct of publishing this secret military information; perhaps not. That is a call for a federal prosecutor, and not for us, to make. One thing we do know is that while the government cannot typically engage in any “prior restraint” of the press (Near vs. Minnesota. SCOTUS, 1931), it can prevent “the publication of the sailing dates of transports or the number and location of troops” (283 U. S. 716). Publishing such information would clearly be unlawful, even if it did not lead to a military loss or failure.

The White House has said that the information Goldberg received was not classified as confidential and that the information did not reveal “war plans.”

Inadvertently, the White House statements may have helped Goldberg avert a charge under the Espionage Act. Goldberg, of course, did absolutely nothing wrong in receiving these messages. The question is whether his publication of the sensitive military information he received is a criminal act. In this analysis, does it matter that the documents are not marked “Confidential”? Well, it certainly helps him because were they marked Confidential, and he knowingly released them, the case would be far stronger. But we ask, “Are not contemporaneous messages sent between the Secretary of Defense and the Director of National Security on an encrypted app relating to planned upcoming secret military action “confidential” even though no one has put a big red rubber stamp “Confidential ” marking on them?”

We will quickly note that Goldberg, in his original story, wisely chose not to release the specific attack details that he said had been sent to him, correctly observing that if the information were disclosed to the enemy, they “could conceivably have been used to harm American military and intelligence personnel.”

But on Wednesday, in response to the White House denials, Goldberg published again, this time releasing the kind of military information we see as problematic: The messages disclosed on Wednesday included a text from Hegseth with specific times and sequencing of planned U.S. strikes against Houthis in Yemen. Specifically, The Atlantic published an update that included information from Secretary of Defense Hegseth providing specific timing for the launch of U.S. warplanes and the sequencing of strikes. Included was the timing of when the “Target Terrorist” would be in his “Known Location” and “when the first bombs will definitely drop.”

Observe that The Atlantic itself called the information it was releasing, “the detailed attack plans that Trump’s advisors shared in the Signal group chat.”

Clearly, there is a disconnect in the classification of the released information between The Atlantic and the White House. We are not here to resolve this issue. But what we can say is that The Atlantic – and its editor and reporter Jeffrey Goldberg — clearly believe that what they were releasing were “the detailed attack plans.” It appears that this is what they believed they had, and they chose to publish them. Whatever harm someone in the Administration, likely Waltz, might have caused by his mistake in sending the information to one unauthorized person, Goldberg, that act alone did not endanger the military mission. It was rather Goldberg’s world-wide publication of the mistakenly sent message, that may have had, or could have led to, dangerous consequences.