By prosecuting WikiLeaks, Trump could stifle reporting on Russian interference

December 20, 2018

It’s been one month since the Justice Department accidentally let slip that the Trump administration has secret charges filed against WikiLeaks founder Julian Assange. The specific charges remain under seal, as a federal judge has delayed ruling on a motion by Reporters Committee for Freedom of the Press to make them public. At least for now, Assange remains legally free, ensconced in the Ecuadorian Embassy in London.

If the charges focus on WikiLeaks publishing activities or interacting with sources, the case could have disastrous implications for on press freedom. Ironically, charging WikiLeaks—which has been accused of “helping” Trump by publishing DNC and Clinton campaign emails allegedly hacked by Russia during the lead up to the 2016 election—could be just the precedent Trump craves for stifling much of the journalism that has enraged him about the media’s coverage of the Russia investigation.

Of course, Assange has been intensely criticized by much of the media for years. But even the most ardent Assange critics should have ample reason to fear how the Trump administration is wielding its power and the potential impact on journalists around the United States.

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Here’s how it might negatively impact journalism if the Trump admin successfully prosecutes Assange.

At this point, there are clues that the charges were filed by Assistant US Attorney Kellen S. Dwyer, who has been in charge of the Justice Department’s general investigation of WikiLeaks for a long time. There’s no indication the charges filed were by Robert Mueller, since the presiding Justice Department prosecutor named in legal documents is not part of Mueller’s team. This suggests the charges relate to one of the many document tranches WikiLeaks has published that relates to leaked classified information. There was also speculation earlier this year that prosecutors were probing whether Assange could be charged for WikiLeaks’s publications about classified CIA hacking tools, which a former government contractor was arrested in 2017 for allegedly leaking.

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First, it’s important to remember that newspapers publish classified information all the time, and that this has been especially true during the Trump administration. CJR has documented how leaks of classified information have changed and delayed controversial Trump administration proposals. Critically, many of the major stories detailing the Trump circle’s relationship with the Russian government have also hinged on information the government considers secret.

How do we know this? Beyond a cursory look at front page stories on The New York Times virtually every week, a Senate committee actually quantified how often leaks of classified information show up in the press in the first six months of the Trump era. The study’s underlying premise was fundamentally flawed—the Senate committee was criticizing stories based on leaks of classified information, not praising their undeniable value to the public to understand the machinations of secret government. And the study’s ultimate conclusions, as the Committee to Protect Journalists noted in its analysis, were also suspect.

Still, the report does serve the purpose of reminding Americans just how much our free press relies on the ability and right to report on information that the government considers classified to inform the American public.

As the study documented, in Trump’s first 126 days in office, there were at least 125 stories that contained leaked classified information: “Leaked stories appeared in 18 news outlets, sourced to virtually every possible permutation of anonymous current and former US officials, some clearly from the intelligence community. One story cited more than two dozen anonymous sources.”

The stories ranged from foreign policy to the US’s many Middle East wars, to intelligence agencies’ surveillance capabilities and more. But one issue was reported on using classified information more than any other: the Trump administration’s relationship with Russia and the burgeoning investigation into those potentially nefarious ties.

As the report stated, “The majority of leaks during the Trump administration, 78, concerned the Russia probes, with many revealing closely-held information such as intelligence community intercepts, FBI interviews and intelligence, grand jury subpoenas, and even the workings of a secret surveillance court.”

If the Justice Department were to prosecute Assange for publishing classified information, or soliciting it from sources and then publishing it, the danger is that this precedent could then be directly applied to The New York Times and The Washington Post. While stylistically they could not be more different, legally speaking, there’s virtually nothing that would separate Assange from other publishers like the Times.

There is no “journalist’s exception” to the Espionage Act—the law that would most likely be used in such a prosecution—where judges determine who is a journalist or not, or who gets the privilege to publish information others can’t. (The Espionage Act is the law most often used to go after journalist’s sources, but is written in a way that would allow for the prosecution of publishers of “national defense information.” It’s never been successfully used up until this point against a non-government employee because of the constitutional concerns). If the Justice Department does go down such a road, does anyone doubt that Trump would hesitate to use such precedent to then go after the Times and the Post?

This is not a fringe opinion, it’s the opinion of the Times itself. In little-noticed public comments from July 2018, longtime deputy general counsel of the paper, David McCraw, told a conference of judges that he feared any prosecution of Julian Assange. Here’s how Courthouse News described it at the time:

“I think the prosecution of him would be a very, very bad precedent for publishers,” McCraw said. “From that incident, from everything I know, he’s sort of in a classic publisher’s position and I think the law would have a very hard time drawing a distinction between The New York Times and WikiLeaks.”

McCraw went on to clarify that while Assange employs certain methods that he finds discomfiting and irresponsible, such as dumping unredacted documents revealing the personal information of ordinary people, Assange should be afforded the same protections as a traditional journalist.

“Do I wish journalism was practiced in a certain way, like it is with The New York Times, The Washington Post, or The Wall Street Journal? Of course. But I also think new ways of publishing have their value. Our colleagues who are not only challenging us financially but journalistically have raised an awareness that there are different ways to report,” McCraw said.

“But if someone is in the business of publishing information, I think that whatever privilege happens to apply—whatever extension of the law that would apply—should be there. Because the question isn’t whether he’s a journalist. It’s in that instance was he committing an act of journalism.”

Former Trump Attorney General Jeff Sessions seemed to confirm this in April 2017 when he indicated the Justice Department would make arresting Assange a priority. He refused to rule out using any precedent the Justice Department gets in a WikiLeaks prosecution to then go after other journalists at the Times and Post.

So, hate Assange all you want. Criticize his tactics and protest his political views. But prosecuting him could be incredibly dangerous to the most cherished rights journalists rely on every single day.

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Trevor Timm is the executive director of Freedom of the Press Foundation, a non-profit organization that supports and defends journalism dedicated to transparency and accountability. He is also a twice-weekly columnist for the Guardian, where he writes about privacy, national security, and the media.