WikiLeaks founder Julian Assange was charged Thursday with violating the Espionage Act by seeking out classified information, an escalation of the Trump administration’s pursuit of leakers that could have major First Amendment repercussions for news organizations.
An 18-count federal indictment charges Assange worked with a former Army intelligence analyst to obtain and disseminate secret documents – conduct similar to reporting work at many traditional news organizations. The U.S. government, though, sought to distinguish the anti-secrecy advocate from a reporter.
“Julian Assange is no journalist,” said John Demers, the Justice Department’s Assistant Attorney General for National Security. He said Assange engaged in “explicit solicitation of classified information.”
Press freedom advocates said the distinction being drawn by prosecutors offers little protection for journalists. Noted press lawyer Floyd Abrams said Assange may be a “singularly unattractive defendant in a lot of ways,” but added the indictment “does raise deeply threatening First Amendment issues for journalists who cover national defense, intelligence activities, and alike.”
Bruce Brown, executive director of the Reporters Committee for Freedom of the Press, in a statement called the indictment “a dire threat to journalists.”
The new indictment expands on a conspiracy charge previously brought against Assangeover his interactions with Chelsea Manning, the former Army intelligence analyst who shared hundreds of thousands of classified war logs and diplomatic papers with WikiLeaks. Assange, 47, who was arrested last month in London and is fighting extradition to the United States, faces a maximum of five years in prison under that conspiracy charge. Each alleged violation of the Espionage Act carries a potential ten-year prison sentence.
Prosecutors alleged in the new indictment that Assange and WikiLeaks “repeatedly encouraged sources with access to classified information to steal it” and give it to the anti-secrecy organization, posting on its website a “most wanted” list for leaks organized by country and saying the documents must be “likely to have political, diplomatic, ethical or historical impact on release.” The indictment said Manning responded to that clarion call, downloading nearly four completely government databases of war reports, Guantanamo Bay detainee assessments and State Department cables and turned them over to WikiLeaks.
The disclosures contained the names of local Afghans and Iraqis who had given information to the U.S., as well as other confidential sources for the U.S. government, according to the indictment, and that “put innocent people in grave danger simply because they provided information to the United States,” revealing information that “would allow enemy forces in Iraq and elsewhere to anticipate certain actions or responses by U.S. armed forces and to carry out more effective attacks.”
The new indictment carries potential consequences not just for Assange but for others who publish classified information, and could change the delicate balance in U.S. law between press freedom and government secrecy. It also raises fresh questions about whether the British courts will view the new charges as justified and worthy of extradition.
“This just became one of the most important test cases for press freedom even if we all agree that Assange isn’t the press,” said Steve Vladeck, a professor at the University of Texas School of Law. “Factually, there’s a world of difference between what Assange is accused of and what professional journalists do. The tricky part is the theory on which he’s being prosecuted doesn’t draw that much of a legal distinction between them. One does not need to be sympathetic to Assange to be worried about a sort of precedent whereby it is not just unlawful but routinely prosecuted for third-parties to publish classified information.”
Prosecutors attempted to distinguish Assange from a traditional publisher by accusing him of giving Manning “direction” and “explicitly” seeking classified material. They alleged, as they had previously, that Assange agreed to help Manning crack a password that might have helped cover their tracks – though the effort was apparently unsuccessful.
Barry Pollack, a U.S. attorney for Assange, said the hacking charge was a “fig leaf” for a case that endangers press freedom.
“These unprecedented charges demonstrate the gravity of the threat the criminal prosecution of Julian Assange poses to all journalists in their endeavor to inform the public about actions that have been taken by the U.S. government,” he said.
U.S. Attorney Zachary Terwilliger said Assange was “not charged simply because he is a publisher,” but rather, for “publishing a narrow set of classified documents in which Assange also allegedly published the un-redacted names of innocent people who risked their safety and freedom to provide information to the United States and its allies.”
Justice Department officials could not immediately point to a successful prosecution of a case comparable to the charges filed against Assange. The Espionage Act was originally written during World War I to target spies and traitors, and has been used intermittently since, including when the government prosecuted the source of the so-called Pentagon Papers during the Vietnam War.
In the past decade, prosecutors have increasingly used the Espionage Act to pursue government employees or ex-employees who leak classified information to reporters.
The case marks the most aggressive move yet in the Trump administration’s quest to punish leakers. Obama-era officials looked at the Assange evidence years ago and concluded such charges were not worth pursuing.
Matt Miller, a spokesman for the Justice Department when Eric Holder was attorney general and was weighing the WikiLeaks case, said officials in that administration debated intensely whether Assange could be charged for publishing classified information, but ultimately decided doing so would be “dangerous and untenable.”
In their view, Miller said, there was “no way to apply the legal theories in this case to Julian Assange in a way that they could not also be applied to a reporter for the Washington Post or another outlet.” And even if prosecutors felt the case was righteous, officials were concerned it would not survive a First Amendment challenge in court.
“The concerns were really twofold – one was whether it was the right thing to do and whether it would set a dangerous precedent, and then there was also a concern that these charges would be thrown out in court,” Miller said.
Assange is currently in jail in London. The U.S. government has until June 11 to deliver to Britain its case for extradition, a process that could take months or years and be complicated by a rape allegation against Assange in Sweden. Assange has said he plans to fight efforts to bring him to the United States to face the criminal allegations, filed in federal court in Alexandria, Virginia.
Once the formal extradition request is made by the U.S., new charges cannot be filed against him by the Justice Department.
Separately, Special Counsel Robert MuellerIII investigated WikiLeaks and its publication of Democratic National Committee emails stolen by the Russian government in 2016. He charged Trump associate Roger Stone with lying to investigators about his attempts to learn more about Assange’s plans for those emails. But the charges against Assange do not touch on that activity.
Seven years ago, while out on bail after being arrested to answer sexual assault allegations in Sweden, Assange sought asylum in Ecuador’s London embassy. The Ecuadorian embassy expelled him in April, leading to his arrest and the unsealing of the initial U.S. indictment.
He was sentenced to 50 weeks behind bars for absconding while on bail. Swedish authorities have reopened the rape case against him, which could delay any U.S. extradition. Assange denies the allegations.
Manning, who served seven years in prison for her disclosures, is now incarcerated in Virginia for refusing to cooperate with the grand jury investigating Assange. A federal judge last week imposed a fine of $500 per day if Manning does not testify within 30 days, and raised the fine to $1,000 per day if she does not testify within 60 days.
She told the judge she “would rather starve to death” than testify.