The Unprecedented Danger Of Prosecuting Julian Assange

The U.S. is planning to seek criminal charges against WikiLeaks founder Julian Assange, according to a CNN report citing anonymous U.S. officials on Thursday. If this occurs, it will represent a radical change in how the government treats dissident speech, one that will endanger the media and empower the Trump administration to silence critics.

Trump’s not the first president to loathe the press. Richard Nixon had a good run as media-despiser-in-chief, although he often came up on the losing end of challenges to the Fourth Estate, most notably in 1971, when the Supreme Court ruled on the legality of publishing the Pentagon Papers. The court allowed The New York Times and The Washington Post to publish classified documents about the Vietnam War, which had been leaked by a government whistle-blower, without the threat of prosecution.

The Obama administration was notoriously aggressive in investigating leakers, and more successful than Nixon at punishing them. It pursued government whistle-blowers like Chelsea Manning and Edward Snowden, and obtained a ruling to require journalists to testify about confidential sources during criminal cases. During the Obama presidency, the Department of Justice investigated WikiLeaks for its role in disseminating information leaked by Manning in 2010. Despite its antagonism toward WikiLeaks, the Obama administration decided not to file charges against Assange.

“The problem the department has always had in investigating Julian Assange is there is no way to prosecute him for publishing information without the same theory being applied to journalists,” former Justice Department spokesman Matthew Miller told The Washington Post in a 2013 article about why the Obama administration chose not to target WikiLeaks. “And if you are not going to prosecute journalists for publishing classified information, which the department is not, then there is no way to prosecute Assange.”

WikiLeaks has published documents without redacting personal information of ordinary people. As an organization, it has frequently behaved irresponsibly and, some have argued, despicably. It has also exposed corruption and criminality by state powers. The quality, morality, necessity, and overall prudence of its editorial choices are beside the point. What matters is that it appears that the Trump administration has decided that it is going to prosecute journalists for publishing classified information.

There were warning signs that this was coming. CIA Director Mike Pompeo called WikiLeaks a “non-state hostile intelligence service often abetted by state actors like Russia,” during a speech last week, and bizarrely insisted that Assange does not have First Amendment protection as a non-U.S. citizen. (That is not how the First Amendment works; if Assange were to be prosecuted on U.S. soil, he would enjoy the same Constitutional protections as a citizen. To insist otherwise is a radical reinterpretation deeply at odds with how the Bill of Rights has been applied.) Attorney General Jeff Sessions called Assange’s arrest a “priority” at a press conference Thursday. However, seeking his arrest would demonstrate a remarkable about-face from President Trump, as he repeatedly and effusively praised WikiLeaks during his campaign. “WikiLeaks! I love WikiLeaks!” he told a crowd at an October rally.

“WikiLeaks is amazing,” he told Bill O’Reilly the next day, doubling down on his approval. As the election approached, WikiLeaks focused on releasing information damaging to the Clinton campaign, and Trump’s thumbs-ups ramped up as the leaking organization continued to damage his competitor’s reputation.

Trump’s recent public affection for WikiLeaks is all the more notable because of how outwardly hostile he has been toward other media organizations. Insulting information-gathering groups is one of Trump’s favorite rhetorical flourishes, and he has criticized The New York Times, CNN, NBC, ABC, and CBS. WikiLeaks was the one he liked! If he brings charges against Assange, there is no reason he would stop there.

“Any prosecution of WikiLeaks for publishing information the government considers classified would be incredibly dangerous to press freedom and all news organizations — many of whom publish classified information themselves all the time,” Freedom of the Press Foundation executive director Trevor Timm told The Ringer. “I hope even WikiLeaks’ harshest critics in the media will denounce this potential move as a grave threat to the First Amendment. After all, Trump has called The New York Times and other mainstream organizations ‘the enemy of the American people.’ Don’t think for a moment that they wouldn’t immediately turn around and use this precedent on any news organization they don’t like.”

“Never in the history of this country has a publisher been prosecuted for presenting truthful information to the public,” Ben Wizner, who directs the American Civil Liberties Union’s Speech, Privacy, and Technology Project, told The Ringer. “Any prosecution of WikiLeaks for publishing government secrets would set a dangerous precedent that the Trump administration would surely use to target other news organizations.”

In January, a breathless viral Medium post about a potential Trump administration coup brought the concept of a “trial balloon” into the cultural conversation. The post suggested that the executive order temporarily banning refugees and blocking travel from seven majority-Muslim countries and other early actions taken by Trump administration officials were tentative steps toward unconstitutionally seizing power in the U.S. The post was wildly speculative and, in retrospect, popular only as a symptom of the paranoid national mood and not because it made sense. However, the concept of a “trial balloon” applies to Assange’s potential arrest. WikiLeaks, as an antagonistic foreign news outlet with unconventional and often bombastically reckless editorial judgment, is perhaps the least sympathetic target for the Trump administration’s first concentrated attacks against the Fourth and Fifth estates. However, other outlets published much of the same information as WikiLeaks, judging it newsworthy and in the public interest. An Assange arrest wouldn’t be a trial balloon as much as it’d be a grenade.