Under DOJ's Own Theory For Prosecuting Julian Assange, Donald Trump Probably Violated The Espionage Act

from the no,-this-is-not-a-good-reason-to-support-it dept

Yesterday, I wrote about the new, superseding indictment of Julian Assange and noted how the theories behind it were absolutely insane and a blatant attack on the 1st Amendment. The Obama administration went after leakers using the Espionage Act, which already was really terrible (the law itself should be deemed unconstitutional, but to use it against whistleblowers, rather than actual espionage was horrific). Here, the Trump administration has taken it up a notch by trying to use it against a publisher. I've seen a lot of people defending this move by arguing that either (a) Julian Assange is a terrible human being, or (b) that Wikileaks is not a "real" or "legitimate" news organization.

Neither of those things matter. And if you think they should you are missing the point in an incredibly dangerous way.

The activities described in the indictment are things that many journalists do all the time. For example, in the first count, the government calls the following an offense against the United States under the Espionage Act:

To willfully communicate documents relating to the national defense—^namely, detainee assessment briefs related to detainees who were held at Guantanamo Bay, U.S. State Department cables, Iraq rules of engagement files, and documents containing the names of individuals in Afghanistan, Iraq, and elsewhere around the world, who risked their safety and freedom by providing information to the United States and our allies, which were classified up to the SECRET level—^from persons having lawful possession of or access to such documents, to persons not entitled to receive them, in violation of Title 18, United States Code, Section 793(d);

But, as the NY Times' Charlie Savage notes in his article on the indictment this is indistinguishable from what the NY Times did with those very same documents.

Notably, The New York Times, among many other news organizations, obtained precisely the same archives of documents from WikiLeaks, without authorization from the government — the act that most of the charges addressed.

Some keep saying that this is somehow different because the NY Times is a "legitimate news organization" while Wikileaks is not, but that distinction is both ridiculous and legally meaningless. It is legally meaningless because there is nothing in the 1st Amendment that reserves any of the rights -- including the rights associated with "freedom of the press" -- to "legitimate news organizations." Indeed, having the government declare who is and who is not a "legitimate news organization" would be a fundamental violation of the 1st Amendment itself.

It's also stupid, because remember who our President is? He's been talking about "the failing NY Times" and insisting that it publishes "fake news."

Do you really want Trump's government determining who is and who is not a "legitimate news organization." No. You do not.

And speaking of President Trump, as lawyer Kurt Opsahl points out, the charges are so ridiculous and so broad, it would appear that Donald Trump himself violated the Espionage Act under the standard used:

So, for example, if a journalist said "Russia, if you’re listening, I hope you’re able to find the [classified] emails that are missing. I think you will probably be rewarded mightily by our press," would that be a chargeable crime? — Kurt Opsahl (@kurtopsahl) May 23, 2019

Count 2 in the indictment is the following:

Between in or about November 2009 and in or about May 2010, in an offense begun and committed outside of the jurisdiction of any particular state or district of the United States, the defendant, JULIAN PAUL ASSANGE, who will be first brought to the Eastern District of Virginia, and others unknown to the Grand Jury, knowingly and unlawfully obtained and aided, abetted, counseled, induced, procured and willfully caused Manning to obtain documents, writings, and notes connected with the national defense, for the purpose of obtaining information respecting the national defense—^namely, detainee assessment briefs classified up to the SECRET level related to detainees who were held at Guantanamo Bay—^and with reason to believe that the information was to be used to the injury of the United States or the advantage of any foreign nation.

As Opsahl points out, if that's an Espionage Act violation, it seems that that saying "Russia, if you're listening, I hope you're able to find the 30,000 emails that are missing. I think you will probably be rewarded mightily by our press" would violate that same law.

And while I'm sure there are some people who would like to see the President charged under the Espionage Act, this is not a good reason to support this incredibly broad interpretation of the law.

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community. Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis. While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: 1st amendment, data gathering, doj, donald trump, espionage act, journalism, julian assange, sources

Companies: wikileaks