by Brian Barrett
On Thursday, the Department of Justice unsealed new charges against WikiLeaks founder Julian Assange. Unlike the previous indictment—which focused narrowly on an apparent offer to help crack a password—the 17 superseding counts focus instead on alleged violations of the Espionage Act. In doing so, the DOJ has aimed a battering ram at the freedom of the press, whether you think Assange is a journalist or not.
The indictment, which you can read in full below, alleges that Assange published classified information over a dozen times, an act expressly forbidden by the Espionage Act, which Congress first passed in 1917. But the Espionage Act has only rarely, and never successfully, been applied to the recipient of a leak. “For the first time in the history of our country, the government has brought criminal charges against a publisher for the publication of truthful information,” says Ben Wizner, director of the American Civil Liberties Union’s Speech, Privacy, and Technology Project. “This is an extraordinary escalation of the Trump administration's attacks on journalism, and a direct assault on the First Amendment.”
The Trump administration’s position that the Espionage Act should apply here would have immediate and broadly-felt repercussions far beyond WikiLeaks. Because however you personally care to classify Assange, the acts at the heart of this latest indictment mirror those made by journalists every day. They’re the reason US citizens know about PRISM, and the Pentagon Papers, and any number of other revelations around abuses of power and governmental impropriety.
“The people leaking it are obviously violating their secrecy agreement and breaking the law, but as long as the journalist doesn’t pay the leaker, or help them hack passwords, this is what investigative journalists in the national security community do on a day-to-day basis,” says Bradley Moss, an attorney at Mark Zaid PC who focuses on national security and intelligence issues. “If they can bring this charge and convict Assange on it, they can bring it against anyone.”
That’s in part because the Espionage Act doesn’t carve out any exemptions for journalists; that protection has come from the First Amendment, and from a recognition among previous administrations that prosecuting publishers of leaks would set a dangerous precedent. In fact, Thursday’s charges deal specifically with incidents that occurred in 2009 and 2010, during the Obama administration. The attorney general at the time, Eric Holder, passed on these same charges for specifically that reason.
“It was absolutely looked at, and the department ultimately made the decision that it wasn’t appropriate to charge Assange for publishing classified information,” says former Obama DOJ spokesperson Matthew Miller. “Not because he’s a journalist—we didn’t believe he was—but that the same legal theories you would apply to him could be used against a reporter for any major media outlet. That was the driving force.”
John Demers, who leads the Justice Department’s National Security Division, attempted to draw a distinction between Assange and traditional media outlets to reporters Thursday. “Some say that Assange is a journalist, and that he should be immune from prosecution for these actions. The department takes serious the role of journalists in our democracy,” Demers said. “It is not and has never been the department’s policy to target them for reporting. But Julian Assange is no journalist.”
Unfortunately, that distinction doesn’t matter in the eyes of the Espionage Act. A successful prosecution of Assange would establish a precedent that publishing sensitive national security materials is a crime, full stop. From there, the Trump administration—and whoever follows—would be emboldened to prosecute similar journalistic acts. Not only that; they’d get to decide who counts as a journalist in the first place.
“If the court concludes that the Espionage Act can apply even to people who are invoking First Amendment protections, that gives DOJ all kinds of leverage going forward,” says Moss, “and a precedent in which they get to decide who is and is not a journalist for the purposes of criminal liability.”
The Justice Department also wouldn’t embark on a case like this unless it was prepared to argue it all the way to the Supreme Court, says Miller. “You’re using the law in a way that it’s never been used before,” he says, noting that the conservative-leaning makeup of the current Supreme Court may have emboldened DOJ to act.
President Trump himself has frequently castigated the press as the “enemy of the people,” and expressed a specific disdain for leaks. But whether or not you read the Assange charges as an end-around to erode the First Amendment, or take Demers’ word that it’s a targeted strike against a longtime agitator, is moot. The end result of a successful conviction will be the same: Journalists at risk of jail time, subject to the whims of an adversarial Justice Department.
“Put simply, these unprecedented charges against Julian Assange and WikiLeaks are the most significant and terrifying threat to the First Amendment in the 21st century,” Trevor Timm, cofounder of the Freedom of the Press Foundation, said in a statement. “The ability of the press to publish facts the government would prefer remain secret is both critical to an informed public and a fundamental right. This decision by the Justice Department is a massive and unprecedented escalation in Trump’s war on journalism, and it’s no exaggeration to say the First Amendment itself is at risk.”
Bringing charges against Assange for alleged hacking at least made sense. Journalists would expect to be—and have been—prosecuted for similar. But the blast radius of an Espionage Act conviction against Assange would include every working national security journalist. Surely the Justice Department is aware of those implications. And that’s what makes its decision to go forward with the charges all the more unnerving.
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