If the U.S. Could Prosecute Assange, It Would Have Already Done So
Trump’s team has gone from cheerleading WikiLeaks to excoriating it in a matter of months, just as the Russiagate investigation heats up.
While the Obama administration prosecuted more leakers of classified information than all previous administrations combined, there was one target they could never quite figure out how to go after without getting ensnared in the First Amendment rights of journalists. From his perch at the Ecuadorean Embassy, the journalist-cum-transparency activist Julian Assange could expose the U.S. government’s mostly closely held secrets — and American prosecutors could do nothing about it.
But now the Trump administration is considering throwing out its predecessor’s conclusion that a prosecution of Assange could open the door to legal attacks on mainstream journalism. According to the Washington Post, the U.S. Justice Department is planning to charge Assange. U.S. Attorney General Jeff Sessions called his arrest “priority.”
The sudden vilification of Assange and WikiLeaks, which candidate Donald Trump cheered endlessly during his presidential campaign for its role in disseminating harmful information about his rival, represents an abrupt change of stance. CIA chief Mike Pompeo just slammed WikiLeaks as a “hostile intelligence service” — the site had released details of CIA hacking tools — which marked a sharp departure from the previous summer, when Pompeo tweeted out WikiLeaks’ publication of hacked DNC emails.
And the change of heart comes as FBI and congressional investigators continue to zero in on the Trump campaign’s possible coordination with WikiLeaks and Russian intelligence to hack political rivals and publish harmful information ahead of the election.
In an email to Foreign Policy, Assange lawyer Barry Pollack said Pompeo’s attack on his client demonstrates that there has “never been a time in our history when independent reporters disseminating truthful information has been more important.”
“My hope is that the Department of Justice will come to the conclusion that no one should be the subject of a criminal investigation for their role in publishing accurate information,” Pollack said. “Such investigations chill free speech and deprive the public of its right to truthful information.”
Ultimately, the administration’s efforts to bring charges against Assange might carry a bigger symbolic and political punch than legal impact. Given the Ecuadorean government’s unchanging support for sheltering Assange in its London embassy — thus preventing extradition to the United States — it’s not clear that presenting formal charges would actually bring him any closer to a U.S. courtroom.
Nonetheless, the Trump administration appears poised to go further than the Obama administration ever would, since it was fearful of opening a legal can of worms that could undermine press freedoms on the United States.
“Bringing charges under the Obama administration wasn’t a problem of a lack of will,” said a former Justice Department official familiar with the case.
Following the public disclosure of a huge trove of U.S. diplomatic cables and military reports in 2010 — at the time considered to be the largest breach of classified information in American history — senior officials across the U.S. government wanted to bring charges against Assange, the former official said.
But the Justice Department could find no way to structure the case to ensure that it would survive a free speech challenge. “DOJ would have brought this case a long time ago if they thought they could win,” the former official said.
How to charge Assange presents some thorny legal questions. Assange describes himself as a journalist, and case law and the U.S. Constitution provides strong protections for outlets that publish classified but sensitive information deemed to be in the public interest. A successful prosecution of Assange, legal scholars argue, could make reporters at mainstream media outlets liable for publishing government secrets, and could set a legal precedent that would seriously undermine the media’s ability to hold government officials to account.
Obama administration lawyers grappled with this problem and could never find a way around the numerous First Amendment questions in prosecuting Assange.
“The problem with the investigation was finding a case that you could bring against Julian Assange that wouldn’t also apply to reporters from every major U.S. media outlet,” the former official said.
That could be just what recommends the move to Trump administration officials. As a candidate, he suggested using the power of the presidency to go after media outlets, and talked of strengthening federal libel laws (there are none) to make it easier to go after adversarial journalists.
Still, slapping Assange with criminal charges would represent a breathtaking about face for President Donald Trump. As a candidate, Trump declared, “I love WikiLeaks” for the role it played in undermining the campaign of his opponent. Trump famously called on Russia to hack into the email account of former Secretary of State Hillary Clinton, and he cited WikiLeaks scores of times at rallies during the final month of his campaign.
According to U.S. intelligence officials, Russian operatives passed documents stolen from computers of the Democratic Party to WikiLeaks, which published them online, exposing and exacerbating serious divisions within the party.
FBI and congressional investigators are currently examining whether Trump lieutenants coordinated with Russian intelligence the publication of documents damaging to Clinton. That sprawling inquiry has burdened the early months of the Trump administration.
The Trump administration’s legal strategy against Assange remains shrouded in mystery. Prosecutors may use communications between Assange and Chelsea Manning, the Army intelligence analyst who passed a huge archive of classified military documents to WikiLeaks in 2010, to argue that the transparency activist incited the soldier to break the law.
In 2011, American prosecutors presented chat logs purportedly documenting conversations between Assange and Manning in which the two men discussed how to crack a password to a an Army database. Assange told Manning that he had tools for doing so, which may serve as the basis of a conspiracy charge against Assange.
Whether American prosecutors possess evidence that Assange provided such help remains unknown.
Regardless, legal experts argue that even if Assange provided such help, his actions could still be defended under journalists’ First Amendment rights. Journalists routinely advise government officials how to pass them information without getting caught by their superiors or investigators.
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Elias Groll is a staff writer at Foreign Policy covering cyberspace, its conflicts, and controversies. @eliasgroll