Top Legal Takeaways on the Implications of the Julian Assange Superseding Indictment

WikiLeaks founder Julian Assange, currently serving a 50-week jail sentence in Britain for bail-skipping, was hit with an 18-count superseding indictment in the United States on Thursday, alleging that he had done far more than conspiring with former U.S. Army intelligence analyst Chelsea Manning to commit computer intrusion back in 2010. Assange has been charged with violating the Espionage Act; Manning was convicted for that offense in 2013 after the leaking of thousands of highly sensitive government documents to WikiLeaks.

Here are the main reactions to this major development in the legal arena.

How to get the press on your side?

Conversation and commentary immediately centered on the First Amendment implications of the charges. Since it is true that there has “never previously been a successful prosecution of a third party (as opposed to the leaker)” under the Espionage Act, the case is shaping up to be a “major test case of whether the First Amendment protects the right to publish,” University of Texas Law Prof. Steve Vladeck explained.

As Vladeck noted, the issue here–and this is why there are plenty of journalists sounding the alarm–is that the Espionage Act “doesn’t distinguish between what Assange allegedly did and what mainstream outlets sometimes do, even if the underlying facts/motives are radically different.”

Assange’s lawyer Barry Pollack is echoing these thoughts.

“Today the government charged Julian Assange under the Espionage Act for encouraging sources to provide him truthful information and for publishing that information. The fig leaf that this is merely about alleged computer hacking has been removed,” Pollack said in a statement. “These unprecedented charges demonstrate the gravity of the threat the criminal prosecution of Julian Assange poses to all journalists to inform the public about actions that have been taken by the U.S. government.”

National security lawyer Bradley P. Moss told Law&Crime that if the DOJ actually prosecutes Assange and gets a conviction the chilling effect on media outlets will be very real.

“If DOJ is ultimately able to successfully pursue this case, beat back any First Amendment defenses Assange might raise regarding the Espionage Act charges and get a conviction, it puts every single media outlet at risk going forward,” Moss said. “No matter their size, ideological bent or intent, any media outlet that publishes leaked classified information in the future would be at legitimate risk of criminal prosecution. No previous administration was willing to jeopardize the foundation of a free press like this: Donald Trump apparently is willing to do so.”

Is it a “political offense” or a national security offense? Can Assange be extradited?

Prof. Vladeck also pointed out that a UK-U.S. treaty currently in place could complicate things significantly when it comes to actually getting Assange to the United States.

Former State Department legal adviser John Bellinger explained to NPR back in April that the treaty prevents an individual from being extradited from the UK for a “political offense.”

“There’s a extradition treaty that entered into force during the Bush administration. It’s been in effect for about 10 years. And it defines the crimes for which individuals can be extradited from the U.S. or from the U.K.,” Bellinger said. “And it says that an individual may not be extradited for a political offense, but that’s not defined.”

Then the caveat: “But historically, under international law, a political offense is an offense against the state such as espionage or sedition or treason.”

Again, Assange is being charged for violating the Espionage Act. Bellinger anticipated that Assange’s lawyers would use the “political offense” argument as “one of their chief defenses.”

Bellinger went so far as to suggest that the DOJ didn’t charge Assange with violating the Espionage Act precisely because of potential extradition complications.

“And that’s one of the reasons I suspect that the charges by the Justice Department were very carefully tailored not to charge him under our espionage laws but instead to charge him with conspiracy to hack into a computer so that he’s not being charged with a political offense,” he said.

Prosecutors, however, were quite clear about what they think happened here.

“Assange and WikiLeaks have repeatedly sought, obtained, and disseminated information that the United States classified due to the serious risk that unauthorized disclosure could harm the national security of the United States,” the indictment said.

John Demers, the head of the Justice Department’s National Security Division, declared Thursday that Assange was “no journalist.”

“The department takes seriously the role of journalists in our democracy and we thank you for it,” he said. “It has not and never has been the department’s policy to target them for reporting. But Julian Assange is no journalist.”

Another potential extradition issue is that the U.S. isn’t the only nation seeking Assange’s extradition.

Both the United States and Sweden have criminal cases at the ready against Assange, and it will be up to Britain to decide who gets the first crack. Deputy Director of Public Prosecution in Sweden Eva-Marie Persson recently issued a detention order on Monday to have Assange extradited to Sweden after he is released from the Belmarsh prison in London.

“If the court decides to detain him, I will issue a European Arrest Warrant concerning surrender to Sweden,” Persson said. Swedish prosecutors are seeking to prosecute Assange over a rape allegation dating back to 2010. Sweden reopened that case after Assange was hauled out of the Ecuadorian embassy.

As the New York Post reported, two women in Sweden previously accused Assange of sex crimes. One case disappeared because of the statute of limitations, but the rape case can still be prosecuted. The statute of limitations runs out in 2020. Assange has denied the allegations, but did not deny sexual activity. He called the allegations political and the sex consensual, per the Post. Assange was accused of raping a woman while she slept — without a condom.

This is why the Obama Administration didn’t go there (sort of)

Former members of the Obama Administration (such as Matthew Miller below) were quick to say that this is why that administration ultimately didn’t charge anyone according to this theory.

“As I’ve been saying for several years, there are very good reasons we didn’t charge this theory in the Obama admin. And it’s not like we had a record reporters loved on these issues,” Miller noted.

The story of former Fox News correspondent James Rosen immediately came to mind. Former President Barack Obama‘s DOJ once labeled Rosen “an aider, abettor and/or co-conspirator” under the Espionage Act.

This case was just one of the examples the Baltimore Sun‘s media critic David Zurawik mentioned in a provocatively headlined piece from 2017. The headline: “Trump’s war on press no match for Obama’s.” Perhaps Zurawik might feel differently in light of the latest news, but that is not for us to say.

In any event, here’s what Zurawik wrote on the Rosen case:

And, in fairness to Trump, his administration has not escalated the conflict with the press to a new level. It has not yet come close to doing what President Obama’s administration did in making the act of reporting itself criminal behavior in a case that started in 2009 under the Espionage Act of 1917.

At the heart of the case is James Rosen, chief Washington correspondent for Fox News, publishing information about North Korea that he received from a State Department employee.

In obtaining a subpoena to access Rosen’s phone and computer records, the Justice Department labeled him “an aider, abettor and/or co-conspirator.” It also described him as a flight risk. Branding a reporter that way in court documents had never been done by the government. Since the case was widely reported, I am surprised an act that really was unprecedented was overlooked by so many pundits in making their worst-ever analyses.

Rosen was not charged, but there was still plenty of outrage over the Obama DOJ’s investigation and surveillance of him.

“This is the first time that the federal government has moved to this level of taking ordinary, reasonable, traditional, lawful reporter skills and claiming they constitute criminal behavior,” Fox News Senior Judicial Analyst Andrew Napolitano opined at the time.

What is the DOJ driving at here? 

One takeaway on the news is that the DOJ could be attempting to amp up the “leverage” so as to box Assange into pleading guilty.

But, given the possible pitfalls we’ve described, it’s also been suggested that the DOJ decision is meant to “send a signal.”

[Image via Jack Taylor/Getty Images]

Matt Naham is managing editor of Law&Crime. He formerly worked as news editor and weekend editor at Rare.

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