The Trump Justice Department inadvertently revealed in a court filing that it has charged Julian Assange in a sealed indictment. The disclosure occurred through a remarkably amateurish cutting-and-pasting error in which prosecutors unintentionally used secret language from Assange’s sealed charges in a document filed in an unrelated case. Although the document does not specify which charges have been filed against Assange, the Wall Street Journal reported that “they may involve the Espionage Act, which criminalizes the disclosure of national defense-related information.”
Over the last two years, journalists and others have melodramatically claimed that press freedoms were being assaulted by the Trump administration due to trivial acts such as the President spouting adolescent insults on Twitter at Chuck Todd and Wolf Blitzer or banning Jim Acosta from White House press conferences due to his refusal to stop preening for a few minutes so as to allow other journalists to ask questions. Meanwhile, actual and real threats to press freedoms that began with the Obama DOJ and have escalated with the Trump DOJ – such as aggressive attempts to unearth and prosecute sources – have gone largely ignored if not applauded.
But prosecuting Assange and/or WikiLeaks for publishing classified documents would be in an entirely different universe of press freedom threats. Reporting on the secret acts of government officials or powerful financial actors – including by publishing documents taken without authorization – is at the core of investigative journalism. From the Pentagon Papers to the Panama Papers to the Snowden disclosures to publication of Trump’s tax returns to the Iraq and Afghanistan war logs, some of the most important journalism over the last several decades has occurred because it is legal and constitutional to publish secret documents even if the sources of those documents obtained them through illicit or even illegal means.
The Obama DOJ – despite launching notoriously aggressive attacks on press freedoms – recognized this critical principle when it came to WikiLeaks. It spent years exploring whether it could criminally charge Assange and WikiLeaks for publishing classified information. It ultimately decided it would not do so, and could not do so, consistent with the press freedom guarantee of the First Amendment. After all, the Obama DOJ concluded, such a prosecution would pose a severe threat to press freedom because there would be no way to prosecute Assange for publishing classified documents without also prosecuting the New York Times, the Washington Post, the Guardian and others for doing exactly the same thing.
As the Washington Post put it in 2013 when it explained the Obama DOJ’s decision not to prosecute Assange:
Justice officials said they looked hard at Assange but realized that they have what they described as a “New York Times problem.” If the Justice Department indicted Assange, it would also have to prosecute the New York Times and other news organizations and writers who published classified material, including The Washington Post and Britain’s Guardian newspaper.
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Last year, the Trump DOJ under Jeff Sessions, and the CIA under Mike Pompeo, began aggressively vowing to do what the Obama DOJ refused to do – namely, prosecute Assange for publishing classified documents. Pompeo, as CIA Director, delivered one of the creepiest and most anti-press-freedom speeches heard in years, vowing that “we have to recognize that we can no longer allow Assange and his colleagues the latitude to use free speech values against us,” adding that WikiLeaks has “pretended that America’s First Amendment freedoms shield them from justice,” but: “they may have believed that, but they are wrong.”
Remarkably, the speech by Donald Trump’s hand-picked CIA chief and long-time right-wing Congressman sounded like (and still sounds like) the standard Democratic view when they urge the Trump administration to prosecute Assange. But at the time of Pompeo’s speech, Obama DOJ spokesman Matt Miller insisted to me that such promises to prosecute Assange were “hollow,” because the First Amendment would bar such prosecutions:
But the grand irony is that many Democrats will side with the Trump DOJ over the Obama DOJ. Their emotional, personal contempt for Assange – due to their belief that he helped defeat Hillary Clinton: the gravest crime – easily outweighs any concerns about the threats posed to press freedoms by the Trump administration’s attempts to criminalize the publication of documents.
This reflects the broader irony of the Trump era for Democrats. While they claim out of one side of their mouth to find the Trump administration’s authoritarianism and press freedom attacks so repellent, they use the other side of their mouth to parrot the authoritarian mentality of Jeff Sessions and Mike Pompeo that anyone who published documents harmful to Hillary or which have been deemed “classified” by the U.S. Government ought to go to prison.
During the Obama years, the notion that Assange could be prosecuted for publishing documents was regarded as so extreme and dangerous that even centrist media outlets that despised him sounded the alarm for how dangerous such a prosecution would be. The pro-national-security-state Washington Post editorial page in 2010, writing under the headline “Don’t Charge WikiLeaks,” warned:
Such prosecutions are a bad idea. The government has no business indicting someone who is not a spy and who is not legally bound to keep its secrets. Doing so would criminalize the exchange of information and put at risk responsible media organizations that vet and verify material and take seriously the protection of sources and methods when lives or national security are endangered.
In contrast to Democrats, Republicans have been quite consistent about their desire to see WikiLeaks prosecuted. As Newsweek noted in 2011: “Sarah Palin urged that Assange be ‘pursued with the same urgency we pursue Al Qaeda and Taliban leaders,’ and The Weekly Standard’s William Kristol wants the U.S. to ‘use our various assets to harass, snatch or neutralize Julian Assange and his collaborators.’” Some Democratic hawks, such as Joe Lieberman and Dianne Feinstein, joined the likes of Palin and Kristol in urging WikiLeaks prosecution, but the broad consensus in Democratica and liberal circles was that doing so was far too dangerous for press freedoms.
In the wake of the 2010 disclosures of the Iraq and Afghanistan war logs, Donald Trump himself told Fox and Friends’ Brian Kilmade that he believed Assange deserved “the death penalty” for having published those documents (a punishment Trump also advocated for Edward Snowden in 2013):
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