How Would U.S. Prosecutors Go After Assange?

Prosecuting the WikiLeaks founder raises hard questions about U.S. press freedom that may not, at present, be answerable.

Foreign PolicyFollowNov 19, 2018

By Elias Groll

For years, American prosecutors have struggled with what has become a fundamental question of 21st century journalism: how to distinguish WikiLeaks and its founder, Julian Assange, from mainstream news outlets, since both regularly publish leaked classified material.

Soon, that question may be tested in a U.S. courtroom. This week, reporters discovered that a federal prosecutor in the Eastern District of Virginia inadvertently revealed in a court filing the existence of criminal charges against Assange. According to the Wall Street Journal, Justice Department officials have grown more confident that they will be able to extradite Assange from the United Kingdom, where has lived in internal exile inside the Ecuadorian Embassy in London after receiving asylum in 2012.

The exact charges against Assange remain unknown, and depending on the shape of the case against him, a criminal prosecution of Assange could test the fundamental principles of American press freedoms, said David Kris, who served as the head of the Justice Department’s National Security Division during the Obama administration.

“It’s an extremely controversial thing to do. Even ardent opponents of leaking have been extremely reluctant to charge publishing entities,” said Kris, who is the founder of Culper Partners, a consulting firm.

Press freedom advocates argue that prosecuting Assange for publishing classified materials — a case that would likely be filed under the Espionage Act — would have devastating consequences for the American media.

Media organizations in the United States publish classified information on a regular basis, either obtained through documents or leaked by knowledgeable officials. Journalist Bob Woodward’s tell-all books are packed with classified material, to take one prominent example. No legal principle currently exists to separate the acts of a whistleblowing website, such as WikiLeaks, and newspapers such as the New York Times, a quandary that led the Obama administration to abandon its efforts to prosecute Assange.

It is possible the Trump administration will ignore those concerns and attempt to use an Assange prosecution to establish an aggressive precedent for prosecuting outlets that publish classified material.

Press freedom advocates have denounced such a move. Ben Wizner, the director of the American Civil Liberties Union’s speech, privacy, and technology project, called a possible prosecution of WikiLeaks publishing activities both “unprecedented” and “unconstitutional,” saying it “would open the door to criminal investigations of other news organizations.”

But prosecutors could conceivably file a more narrowly construed case that attempts to sidestep some of those issues, according to Kris.

One possible case against Assange that has been much debated in legal circles involves charging him for conspiring with Russian hackers — or some other set of unknown hackers — to carry out an act of computer intrusion. In the run-up to the 2016 election, Assange published thousands of emails stolen from the personal accounts of Democratic political operatives. If Assange worked with Russian operatives to obtain those emails, he could conceivably be charged as part of a conspiracy to break into protected computer systems.

Chat logs published this week by the researcher Emma Best show how WikiLeaks has in the past encouraged hackers to break into computers.

Special Counsel Robert Mueller has extensively investigated the hacking activities of Russian operatives and has indicted at least a dozen of them. WikiLeaks published some of the material stolen by Russian hackers, and Mueller may have uncovered evidence as part of his investigation that could implicate Assange in a criminal conspiracy.

The case against Assange could also be entirely unrelated to the 2016 election or the massive leaks of U.S. government documents that brought WikiLeaks to prominence. Federal prosecutors in New York are currently bringing a case against a former CIA contractor, Joshua Schulte, on child porn charges. Schulte is thought to have been involved in providing to WikiLeaks CIA hacking tools that have published as part of what Assange has called “Vault 7.”

A conspiracy case against Assange would avoid the controversy of charging him for publishing classified material, but would do little to calm press freedom concerns. Journalists regularly work with sources to obtain sensitive information, and recent prosecutions of government officials accused of leaking classified material have described journalists as co-conspirators.

A conspiracy case could open a wide avenue of other prosecutions against U.S. journalists. Many media outlets, including Foreign Policy, solicit sensitive information through secure online portals. If a source submits classified material through such a portal, would that amount to a conspiracy between journalist and source? That’s a question without a firm answer at the moment.

The American case against Assange could also turn on an entirely unknown set of facts focusing on Assange’s personal actions, Kris points out. American prosecutors could, for example, have gathered evidence of tax crimes or fraud and plan to indict him on actions unrelated to his publishing activities.

Just as Al Capone was prosecuted on charges of tax evasion, the American case against Assange may focus on a set of actions unrelated to Assange’s main focus — obtaining and publishing government secrets.

How to prosecute Assange lies in the hands of Justice Department officials, and that should provide little comfort to defenders of press freedoms in general, and Assange in particular.

Acting Attorney General Matthew Whitaker has expressed contempt for bedrock principles of American jurisprudence — such as the case of Marbury v. Madison establishing the principle of judicial review — and there is little indicate that the department will exercise restraint in the case of Assange.

“To a certain degree all bets are off,” Kris said.

Elias Groll is a staff writer at Foreign Policy covering cyberspace. @EliasGroll