Daniel Leal-Olivas/AFP/Getty Images fourth estate The Feds May Come to Regret Charging Assange with Espionage By prosecuting Julian Assange, the Department of Justice risks weakening its ability to go after spies and rogue employees.

Jack Shafer is Politico’s senior media writer.

The indictment of WikiLeaks founder Julian Assange under the Espionage Act, announced Thursday, has the potential to trigger a First Amendment brawl the Department of Justice may soon come to regret starting.

The Espionage Act, first passed in 1917, has proved essential in prosecuting spies and employees with classified clearances who violated their oath by leaking to the press, but federal prosecutors have long avoided using it to punish journalists for possessing or publishing those same leaks. They weren’t being generous, nor was their inaction a product of their love of the news media. Rather, legal showdowns that tested the act under the light of the First Amendment—showdowns that might weaken or gut the law—were considered imprudent and unnecessary.


No legal scholar would argue that the government exceeded its constitutional powers by charging and convicting Chelsea Manning, a former Army intelligence analyst, for leaking hundreds of thousands of pages of classified documents to Assange’s WikiLeaks, which posted them and shared them with newspapers like the New York Times. But charging Assange for obtaining and disseminating the documents marks a new legal frontier. As journalists and free speech advocates are shouting at full throat, reporters ask sources for classified documents and information all the time. If the government can successfully prosecute Assange for doing something similar, their logic goes, then New York Times, Washington Post, and Wall Street Journal reporters will be next.

Trump’s DOJ has not yet explained the logic of its novel prosecution, but it appears that it is prepared to argue that Assange isn’t a journalist, which a spokesman already said in a news briefing. WikiLeaks and Assange aren’t deserving of the usual First Amendment deference, this argument goes, because they don’t quack and walk like the conventional press. Most media organizations receive classified information orally or in small batches of documents. WikiLeaks, as the indictment points out, literally advertised for leaks by posting a wish list on its site: “The Most Wanted Leaks of 2009,” “Bulk Databases,” classified “Military and Intelligence” documents, etc. If I’m reading the indictment’s intentions correctly, the Trump prosecutors think Assange made himself legally vulnerable by going beyond what journalists ordinarily do. He fashioned himself a broker of leaks, collecting them wholesale and distributing them unlike the mainstream press, which obtains them retail.

But if soliciting leakers and helping them submit information is the new standard for Espionage Act prosecutions, then the Associated Press, Forbes, the Guardian, the New York Times, POLITICO, the Washington Post, and other publications that publicize their SecureDrop address to collect whistleblower information must be in trouble, too.

As Charlie Savage reports in the New York Times, the closest prosecutors have come to charging a reporter under the Espionage Act came in 2005, when two lobbyists were charged with obtaining classified information about America’s Iran policy and then passing it on. That case, he writes, “fell apart after several skeptical pretrial rulings by a judge.”

Congress has the power to authorize a classification system for information that needs to remain secret, and it can punish those who violate the system. But Congress cannot extend its powers of criminalized classification so far that it abuses the First Amendment. As legal scholar Alan M. Katz wrote in 1976, “The First Amendment limits Congress’ ability to punish the press criminally for publication of leaked government information.” In other words, the government could not lawfully classify all information under its purview, or even half, or even a third. The First Amendment rejects the censorship state.

As part of the Constitution, the First Amendment stands as the supreme law of the land. In any tussle between it and the Espionage Act, it must win. Ruling the Espionage Act as overbroad under the First Amendment would, of course, be up to the Supreme Court. But legal consensus on where the Supremes would go on this one is hard to come by. In April, law professor Steve Vladeck said he doubted whether Assange—or the New York Times—could win a clear-cut First Amendment victory if charged under the Espionage Act. But he also noted that the act is legally rickety, and wasn’t “drafted with the kind of specificity that usually characterizes speech-restricting statutes that survive constitutional challenge.”

Could a smart legal defense team punch a hole in the Espionage Act and spring Assange? First, prosecutors would have to persuade a British court to extradite him from his British jail cell, and that’s no cinch. Assange may not have to rely on a First Amendment defense if former assistant U.S. Attorney Andrew C. McCarthy is right. He argues in National Review that the Justice Department extended the statute of limitations covering Assange’s alleged crimes to eight years under Section 2332b of the penal code, which makes an exception for “acts of terrorism transcending boundaries.” McCarthy, no friend to Assange, says this could complicate his extradition if the British courts think it unjust.

What emboldened the Trump administration to charge Assange under the Espionage Act when the Obama administration, which wasn’t shy about punishing leakers, wouldn’t? That prosecutors have previously refrained from charging journalists under the Espionage Act and have waited this late in the game with the statute of limitations clock ticking to file their case may be the strongest predictor that Trump’s DOJ will be sorry it ever brought this case. At least that’s my hope.

******

The one time I met Assange he was stuffing food from a reception buffet into his jacket pockets. Send your best reception story to [email protected]. My email alerts are waging terror on my Twitter feed. My RSS feed is fighting extradition.