Julian Assange Espionage Act Charges Escalate Trump’s War on Journalists He Calls the ‘Enemy of the People’

The release of the superseding indictment of WikiLeaks founder Julian Assange sent shock waves across the legal and media communities.

Unlike the initial indictment of Assange, which was limited to issues regarding computer intrusion that implicated criminal provisions of the Computer Fraud and Abuse Act, Thursday’s superseding indictment spans the gamut of charges under the Espionage Act relating to Assange’s efforts to solicit, receive and ultimately publish the enormous amount of classified materials leaked to him by Chelsea Manning back in 2010.

Trump Admin Crosses New Line, Charges Assange for PublishingESCALATION

Betsy Swan, Kevin Poulsen, Justin Miller

I use the term “publisher” broadly here because, in all honesty, I have never viewed Assange as what we would typically refer to as a “journalist” or “member of the media.” I view Assange as simultaneously narcissistic and yet stunningly naïve, willing to engage in actions he alone views as furthering transparency oftentimes without sufficient consideration for the harm it could cause or the extent to which he is being used as a potentially unwitting tool of foreign intelligence services. This was put on display in 2016 in particular, when Assange allegedly allowed WikiLeaks to be used as a conduit for materials stolen by Russian intelligence operatives from the Democratic National Committee and Hillary Clinton campaign chairman, John Podesta, and later funneled to Assange through a cutout that gave him plausible deniability to say Russia was not his source.

My personal disgust for Assange notwithstanding, I nonetheless have to publicly stand in defense of him with respect to the Espionage Act charges. I do this not because I care one bit whether Assange spends the rest of his life in prison. Instead, my defense of him is exclusively about preventing the establishment of a legal precedent by which the Espionage Act (at least in its current statutory form) can be utilized to prosecute third party recipients and/or publishers of leaked classified information.

The obvious question, of course, is why I should care if that precedent is established. Assange is not a traditional journalist (as the Justice Department stressed Thursday) and WikiLeaks is not a traditional media outlet, so why would the precedent worry me? Simple: if Assange can be successfully prosecuted under the Espionage Act based on the current set of facts in the superseding indictment, then every other media outlet is at risk of prosecution.

That risk is being created, purposefully, on the watch of a president who gleeful calls journalists “the enemy of the American people.”

The current set of factual allegations underlying the Espionage Act charges essentially state that Assange communicated with Manning about securing classified documents, encouraged Manning to leak documents to WikiLeaks, published the documents (sometimes without sufficient redactions to avoid harm to third parties), and then continued to encourage Manning to leak more documents for publication.

Here is the problem, though: That is similar to what just about every national security reporter and investigative journalist does on a regular basis. They all from time to time have to communicate with their sources about leaking classified information and materials, and do what they can to encourage their sources to keep leaking to them despite knowing that the source is breaking the law. You see the work product of those classified leaks on a regular basis in media reports.

Do those actions technically meet the legal requirements for charges under the Espionage Act? Yes. However, with the exception of one instance in the midst of World War II when prosecution of a newspaper was briefly considered, the government has always declined to seek criminal charges against media outlets because of an institutional understanding that it was inconsistent with First Amendment protections for the press. Even under Richard Nixon, no friend of the press, the Justice Department did not seek to prosecute The New York Times or The Washington Post for their publication of the Pentagon Papers. Instead, they limited their actions to civil litigation to stop the publication of the leaked materials, and ultimately lost that argument at the U.S. Supreme Court.

If the government succeeds here against Assange, then it will have the leverage going forward to claim that it can decide, for purposes of criminal liability, who is and who is not a journalist. No matter a media outlet’s size, structure or ideological bent, its criminal liability would be subject to nothing more than the political discretion of the Justice Department and, ultimately, the White House.

That way madness lies.