Opinion | Is Assange’s Arrest a Threat to the Free Press?

Last November, federal prosecutors accidentally revealed, in an unrelated court document, that a sealed indictment had been filed against WikiLeaks founder Julian Assange. Many people concerned with civil liberties, including some who despise Assange, were alarmed by the idea that he could be punished for his role in exposing American government secrets. “If Assange can be prosecuted merely for publishing leaked classified documents, every single media outlet is at risk of prosecution for doing the exact same thing,” the lawyer Bradley P. Moss wrote in The Atlantic.

At the time, the public didn’t know what the actual charges were. Now that Assange has been dragged from the Ecuadorean Embassy in London, where he’s lived for almost seven years, and is facing extradition to the United States, we do. He’s been indicted for conspiracy to commit computer intrusion, a result of his alleged attempts nearly a decade ago to help former Army intelligence analyst Chelsea Manning crack a password to a government computer.

These charges do not pose quite the threat to a free press that some feared, because hacking is not standard journalistic practice. “The indictment does not charge Assange for the act of publishing, which would have been a serious Rubicon crossed,” Ben Wizner, director of the American Civil Liberties Union’s project on speech, privacy and technology, told me. But, as Wizner emphasizes, that doesn’t mean we shouldn’t be worried about what Donald Trump’s Justice Department is up to. Elements of the Assange indictment could still set a dangerous precedent.

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I don’t say that out of any sympathy for Assange, an odious person who initially sought refuge in the embassy to dodge charges stemming from an alleged sexual assault in Sweden. In the 2016 election, Assange acted as a conduit for Russian intelligence services that had hacked emails from top Democrats. He helped spread the conspiracy theory that the leaked Democratic emails were actually released by Seth Rich, who worked for the Democratic National Committee and who was murdered in 2016. Surely Assange knew this wasn’t true. There is ample evidence of his misogyny and anti-Semitism. He might be known as an information anarchist, but by helping Trump become president, he became a handmaiden to authoritarianism.

So Assange may well deserve to go to prison. What’s troubling, however, is that his indictment treats ordinary news gathering processes as elements of a criminal conspiracy.

The Obama administration made a decision that it couldn’t prosecute Assange for disseminating classified information without threatening the First Amendment. “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,” Matthew Miller, a former Justice Department spokesman, told The Washington Post in 2013.

When Miller said that, the facts underlying the current hacking charge were already known. During Manning’s trial in 2011, military prosecutors revealed chat logs in which Manning asked Assange for help cracking the password. There was no indication, then or now, that Assange succeeded; the Assange indictment says only that the password “would have allowed” Manning to access government computers without entering her own user name.

On Thursday, Miller told me there could be several reasons the Obama Justice Department didn’t pursue a hacking indictment. At the time, Ecuador was less willing to turn Assange over. “There’s no reason to bring a case against him when you can’t actually put your hands on him,” said Miller. And while he believes that the hacking charge is justified, he said, “This is not the world’s strongest case.”

But the Justice Department’s desire to nail Assange for publishing information leaked by Manning never went away. Miller said that both former Attorney General Jeff Sessions and Deputy Attorney General Rod Rosenstein wanted to take a new look at the case. It’s a relief that they found a way to make the case without a frontal assault on journalistic prerogatives. Still, if you read the indictment, a lot of things that journalists do routinely are part of Assange’s alleged crime.

“It was part of the conspiracy that Assange and Manning took measures to conceal Manning as the source of the disclosure of classified records to WikiLeaks,” says the indictment. Most if not all investigative journalists take such measures to protect their sources. The indictment says, “It was part of the conspiracy that Assange encouraged Manning to provide information and records from departments and agencies of the United States.” Journalists often do this when they urge whistle-blowers to come forward. “It was part of the conspiracy that Assange and Manning used a special folder on a cloud drop box of WikiLeaks” to transmit classified information, the indictment continues. Like many news organizations, The New York Times does something similar, soliciting tips through an encrypted submission system called SecureDrop.

For any of these actions to become part of a criminal conspiracy, there has to be a crime. But as Georgetown law professor David Super points out, “We have right now a criminal code that is bursting at the seams with offenses,” making it easy to break laws without realizing it.

A prosecutor, then, might be able to find a pretext for a similar conspiracy case if, for example, someone decides to leak the Mueller report, or Trump’s tax returns. “This pattern of behavior has already been turned against journalists in many parts of the world,” Super said. Journalists “get prosecuted for pretty mundane stuff, some of which they probably did, but they wouldn’t have been charged for if they didn’t make the regime unhappy.”

Assange seems to have thought that, by helping elect Trump, he would improve his own situation. As Julia Ioffe reported in The Atlantic, in 2016 WikiLeaks suggested to Donald Trump Jr. that Trump should lean on Australia to have Assange, an Australian citizen, appointed ambassador to the United States. Roger Stone, a Trump adviser who was indicted in part for lying about his communications with WikiLeaks, reportedly told an associate that he was trying to get Assange a pre-emptive presidential pardon. Now Assange has discovered, as so many others have before him, that betting on Trump can ruin your life. There’s a certain dark satisfaction in that. But any legal theory that Trump’s Justice Department uses against Assange can also be used against the rest of us.