The DOJ spent several years toying with the idea of prosecuting Julian Assange for the publication of leaked documents. It finally pulled the trigger earlier this year, utilizing UK police to pick up the ousted Assange from the Ecuadorian embassy. There was only a single charge related to cracking passwords protecting classified documents. It wasn't much of an indictment, but it initially appeared the DOJ might steer clear of the First Amendment… well, at least as well as it's capable of doing.
That all changed last week. The DOJ brought a new indictment, loaded with charges and First Amendment implications. It was no longer limited to some password-cracking attempts that went further than receiving sensitive files from a source. The new indictment basically turns journalism into treason. Things journalists do every day, like cultivating sources, seeking out leakers/whistleblowers, and publishing the results of these efforts are all treated as Espionage Act violations.
The charges are so broad, they cover more than the day-to-day business of journalism. If all it takes is asking someone to hand over sensitive documents, it's likely Donald Trump himself violated the Espionage Act while still on the campaign trail when he informally asked Russia to dig up 30,000 emails from then-State Department head Hillary Clinton's servers.
This prosecution has the potential to do so much damage to First Amendment press protections, even the DOJ wasn't of a single mind when it came to pushing the new indictment.
Two prosecutors involved in the case against WikiLeaks founder Julian Assange argued against the Justice Department’s decision to accuse him of violating the Espionage Act because of fear that such charges posed serious risks for First Amendment protections and other concerns, according to people familiar with the matter.
The Obama Administration began the case against Assange, but ultimately decided to abandon its pursuit of this prosecution because of the very issues we're seeing raised now. Unfortunately, the case was never closed. Incoming Attorney General Jeff Sessions pushed this back into the prosecutorial queue as part of the Trump Administration's efforts to deter whistleblowers and leakers.
That push was met with internal resistance from two DOJ prosecutors who recognized the prosecution being pushed by AG Sessions was highly problematic.
When it came to Assange, [prosecutor] James Trump was concerned about pursuing a prosecution that was so susceptible to First Amendment and other complicated legal and factual challenges, the people familiar with the matter said.
Another prosecutor, Daniel Grooms, also disagreed with charging Assange, according to the people familiar with the matter. At the time, Grooms served as criminal chief in the U.S. Attorney’s office that was handling the case.
By the time the first indictment was issued, James Trump's opinion had been disregarded and Grooms was no longer with the agency. Their protests weren't enough, and now the DOJ is neck deep in Constitutional concerns.
The Assistant AG leading Assange's prosecution said the following during his announcement of the superseding indictment, as if this somehow threaded the needle on the Constitutional side effects of turning journalism into treason:
The Department takes seriously the role of journalists in our democracy and we thank you for it. It is not and has never been the Department’s policy to target them for their reporting.
Julian Assange is no journalist. This made plain by the totality of his conduct as alleged in the indictment—i.e., his conspiring with and assisting a security clearance holder to acquire classified information, and his publishing the names of human sources.
Indeed, no responsible actor—journalist or otherwise—would purposely publish the names of individuals he or she knew to be confidential human sources in war zones, exposing them to the gravest of dangers. And this is just what the superseding indictment charges Julian Assange with doing. The new charges seek to hold him responsible in light of the full breadth of his illegal conduct.
But that is journalism. Journalists encourage sources to acquire classified information. Journalists publish documents that may result in harm to national security. It happens and it's part of the job. It's an integral part of holding the government accountable for its actions. Yes, journalists should take care to prevent foreseeable harm, but they are under no obligation to withhold every bit of information the government feels shouldn't be published.
I supposed we should be happy there was some internal pushback. But the DOJ is engaged in a very dangerous prosecution that, if successful, will lay the groundwork for prosecuting journalists for engaging in journalism.
