The Trump Justice Department just drastically raised the stakes in the case against Julian Assange — putting First Amendment rights at risk
WikiLeaks founder Julian Assange was faced 17 new criminal counts under the Espionage Act charged by the U.S. Justice Department, a move that could change the dynamics of press freedom in the United States.
Assange had previously been charged for an attempt to help Chelsea Manning crack a government password when she was sharing classified information with WikiLeaks. But the new charges attempt to criminalize Assange's efforts to solicit and disseminate classified material, a practice that is arguably identical to the work of many legitimate reporters.
Many advocates of press freedom have long worried that the U.S. government could use the Espionage Act in this way, threatening common journalistic practice, and critics of Assange's initial indictment warned that worse was yet to come.
As the Washington Post explained:
[T]he new charges against Assange carry potential consequences not just for him, but for others who publish classified information, and could change the delicate balance in U.S. law between press freedom and government secrecy. They also raises fresh questions about whether the British courts will view the new charges as justified and worthy of extradition.
Assange remains in London, where he had been staying at the Ecuadorian embassy until April. After the U.S. announced its indictment of Assange, he was forcibly removed from the embassy to undergo an extradition proceeding. He may also face charges from the government of Sweden, where he has been accused of rape.
Prosecutors tried to distinguish Assange's work from that of typical reports.
“Julian Assange is no journalist,” said John Demers, who serves as Assistant Attorney General for National Security. "This is made plain by the totality of his conduct as alleged in the indictment. His conspiring with and assisting a security clearance holder to acquire classified information, and his publishing the name 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 greatest of dangers."
The intelligence community has argued for years that WikiLeaks does not function as a press outlet, but rather as a "hostile intelligence service." Special Counsel Robert Mueller found that the Russian government mediated its interference in the 2016 U.S. election by funneling its stolen information through WikiLeaks, with the explicit purpose of hurting Hillary Clinton and helping Donald Trump.
But even if the work of WikiLeaks can be conceptually distinguished from the work of journalists, it's not clear that the charges the Justice Department are bringing can sufficiently thread the needle without criminalizing the actions of many other media figures. And even if similar charges aren't often brought against more credible journalistic institutions, the use of the Espionage Act in this way could have a chilling effect reporters working to expose corruption of public officials.
The New York Times wrote of the charges:
The Justice Department’s decision to pursue Espionage Act charges signals a dramatic escalation under President Trump to crack down on leaks of classified information and aims squarely at First Amendment protections for journalists. Most recently, law enforcement officials charged a former intelligence analyst with giving classified documents to The Intercept, a national security news website.
Legal scholars believe that prosecuting reporters over their work would violate the First Amendment, but the prospect has not yet been tested in court because the government had never charged a journalist under the Espionage Act.
Though he is not a conventional journalist, much of what Mr. Assange does at WikiLeaks is difficult to distinguish in a legally meaningful way from what traditional news organizations like The New York Times do: seek and publish information that officials want to be secret, including classified national security matters, and take steps to protect the confidentiality of sources.
The fact that the charges are coming under President Donald Trump is a peculiar irony. Trump enthusiastically embraced WikiLeaks during the 2016 election, touting its releases as exposing Clinton's duplicity. Since then, though, Trump has put distance between himself and Assange, falsely saying he knew nothing about the organization after the previous indictment was made public.
It has also been reported that the Justice Department under President Barack Obama had considered bringing charges against Assange but declined to do so.