It’s come to the attention of some observers that there isn’t much the US can charge Julian Assange with that it can’t charge the New York Times with as well.

After all, the founder of WikiLeaks and the US’s pre-eminent major daily both basically did the same thing: They published confidential State Department cables allegedly stolen by Pfc. Bradley Manning.

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But for Michael Mukasey, President George W. Bush’s last attorney general, the matter is clear cut: The US should prosecute Assange because it’s “easier” than prosecuting a major news outlet.

Pressed by the Wall Street Journal‘s Paul Gigot to explain how the US could prosecute Assange and not the Times — the first US news source to publish the State Department cables — Mukasey said, “The distinction I’m drawing is that it is easier, from a policy standpoint, to prosecute Assange. There’s a clearer case with respect to Assange. With regard to the Times, I think, just as a matter of discretion, I would hold back.”

The argument that only prosecutorial “discretion” stands in the way of journalists being arrested for publishing the WikiLeaks documents will surely add fuel to the fire of critics who say that an Assange prosecution would be an attack on freedom of the press.

Mukasey said he would like to see Assange prosecuted under two clauses of the 1917 Espionage Act, “one of which criminalizes the publication of defense-related information, and the other of which criminalizes the publication of classified information.”

Gigot pointed out that there has never been a prosecution under the 1917 Espionage Act, and that the Supreme Court has never ruled on its constitutional validity. Mukasey, who described the law as “an oldie but goodie,” was confident that the Supreme Court would uphold it as a reasonable limitation on freedom of speech.

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Yet Mukasey agreed that the US government keeps “too many secrets.”

Declassifying lots of government information “would help,” Mukasey said, adding that there should be more safeguards to alert the government to stolen data. “I think that it would also help to put some controls in, the same way that you’re–when you use your credit card, at some point, if charges start being run up that are unusual, you get a call asking whether you’re vacationing in the Bahamas or whether you’ve just bought $10,000 worth of stereo equipment.”

This video is from Fox News’ The Journal Editorial Report, broadcast Dec. 11, 2010.

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