Stephen Kim’s story has no redeeming qualities.

The Intercept recently published a compelling narrative on Stephen Kim, a former State Department policy analyst charged under the Espionage Act for leaking classified information to the media.¹ I won’t seek to reproduce the details of his story here; instead I offer the following two observations:

[1] I couldn’t help but picture Kim as the archetypal tragic hero. Kim’s intelligence is only surpassed by his optimism and naiveté, and despite lacking strong political connections (which ultimately would have shielded him from his fall from grace), Kim fervently believes his solid analyses alone would help shape US foreign policy. This hubris results in his catastrophic partnership with James Rosen. Kim doesn’t go down without a fight, but it leaves him devastated. There’s a scene in the documentary where he’s standing in the beauty shop, blankly looking at the wigs and dyes he’ll be managing when he’s released from jail. He loses his money, his career, his wife and son; all he has left are wigs. Aristotle argued that tragedy should bring catharsis to the observer. I’m not sure I can extract anything positive from this.

[2] The government’s justification for Kim’s Espionage Act prosecution is ridiculous. It boils down to this: we need to look strong against leakers because we don’t like leaks, so let us get some prosecutions to deter future leakers. The problem is, there isn’t anything the Justice Department can use to prosecute Kim except a 100-year old law designed to punish spies acting on behalf of foreign powers.² As a result, Kim can mount virtually no defense³ and faces draconian penalties. To put in perspective how far most administrations wanted to stay from the potent Espionage Act, there’s one line in the Intercept article that’s worth repeating:

The Obama administration has prosecuted more than twice as many leak cases under the Espionage Act as all previous administrations combined.

With the courts fully deferring to the executive on these espionage cases, defendants are subject to the whims of the DOJ.⁴ These trials are pretty much useless: the executive branch controls everything. If we assume that the DOJ is operating rationally, it’s presumably prosecuting on the basis that making an example of one person, like Kim, through disproportionate punishment, while unfair to Kim, results in benefits that outweigh. This cost-benefit framework is overly simple though. Let’s use a more robust framework to consider this, perhaps one drawn from the very judiciary that has exited the picture.

If the DOJ were to reason like a court, they would recognize that deploying the Espionage Act may be out of line, perhaps implicating issues related to the 5th (due process) and 8th Amendments (cruel and unusual punishment). With Kim’s rights at risk, the DOJ-as-court would apply a balancing test and consider whether using the Espionage Act against Kim is justified by a compelling government interest. Yet, even if James Clapper, Director of National Intelligence, were to report to the DOJ that leak deterrence is critical to national security, that rationale alone is insufficient. Prosecuting Kim is not narrowly tailored to achieve the national security interest, since deterrence could be achieved through a lighter punishment or perhaps no punishment at all: given how the State Department apparently doesn’t properly train its officials on PR communication, that might be a more reasonable alternative to deter leaks.

Continuing to prosecute Kim, in spite of the above observations, makes no sense. This is about power, plain and simple, and it just so happens the system has been so utterly distorted that the DOJ can get away with it.