Under DOJ's Own Theory For Prosecuting Julian Assange, Donald Trump Probably Violated The Espionage Act

from the no,-this-is-not-a-good-reason-to-support-it dept

Yesterday, I wrote about the new, superseding indictment of Julian Assange and noted how the theories behind it were absolutely insane and a blatant attack on the 1st Amendment. The Obama administration went after leakers using the Espionage Act, which already was really terrible (the law itself should be deemed unconstitutional, but to use it against whistleblowers, rather than actual espionage was horrific). Here, the Trump administration has taken it up a notch by trying to use it against a publisher. I’ve seen a lot of people defending this move by arguing that either (a) Julian Assange is a terrible human being, or (b) that Wikileaks is not a “real” or “legitimate” news organization.

Neither of those things matter. And if you think they should you are missing the point in an incredibly dangerous way.

The activities described in the indictment are things that many journalists do all the time. For example, in the first count, the government calls the following an offense against the United States under the Espionage Act:

To willfully communicate documents relating to the national defense?^namely, detainee assessment briefs related to detainees who were held at Guantanamo Bay, U.S. State Department cables, Iraq rules of engagement files, and documents containing the names of individuals in Afghanistan, Iraq, and elsewhere around the world, who risked their safety and freedom by providing information to the United States and our allies, which were classified up to the SECRET level?^from persons having lawful possession of or access to such documents, to persons not entitled to receive them, in violation of Title 18, United States Code, Section 793(d);

But, as the NY Times’ Charlie Savage notes in his article on the indictment this is indistinguishable from what the NY Times did with those very same documents.

Notably, The New York Times, among many other news organizations, obtained precisely the same archives of documents from WikiLeaks, without authorization from the government ? the act that most of the charges addressed.

Some keep saying that this is somehow different because the NY Times is a “legitimate news organization” while Wikileaks is not, but that distinction is both ridiculous and legally meaningless. It is legally meaningless because there is nothing in the 1st Amendment that reserves any of the rights — including the rights associated with “freedom of the press” — to “legitimate news organizations.” Indeed, having the government declare who is and who is not a “legitimate news organization” would be a fundamental violation of the 1st Amendment itself.

It’s also stupid, because remember who our President is? He’s been talking about “the failing NY Times” and insisting that it publishes “fake news.”

Do you really want Trump’s government determining who is and who is not a “legitimate news organization.” No. You do not.

And speaking of President Trump, as lawyer Kurt Opsahl points out, the charges are so ridiculous and so broad, it would appear that Donald Trump himself violated the Espionage Act under the standard used:

Count 2 in the indictment is the following:

Between in or about November 2009 and in or about May 2010, in an offense begun and committed outside of the jurisdiction of any particular state or district of the United States, the defendant, JULIAN PAUL ASSANGE, who will be first brought to the Eastern District of Virginia, and others unknown to the Grand Jury, knowingly and unlawfully obtained and aided, abetted, counseled, induced, procured and willfully caused Manning to obtain documents, writings, and notes connected with the national defense, for the purpose of obtaining information respecting the national defense?^namely, detainee assessment briefs classified up to the SECRET level related to detainees who were held at Guantanamo Bay?^and with reason to believe that the information was to be used to the injury of the United States or the advantage of any foreign nation.

As Opsahl points out, if that’s an Espionage Act violation, it seems that that saying “Russia, if you’re listening, I hope you’re able to find the 30,000 emails that are missing. I think you will probably be rewarded mightily by our press” would violate that same law.

And while I’m sure there are some people who would like to see the President charged under the Espionage Act, this is not a good reason to support this incredibly broad interpretation of the law.

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Comments on “Under DOJ's Own Theory For Prosecuting Julian Assange, Donald Trump Probably Violated The Espionage Act”

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Uriel-238 (profile) says:

Can we admit that the rule-of-law is no longer respected?

This is once again another case were laws are selectively enforced, in this case on enemies of the administration and resources of whistleblowers.

Once we recognize that the law is meaningless without equal enforcement we can look toward changing it.

Until then, it wouldn’t surprise me if espionage becomes a means to lock up every enemy of the Trump Administration. Clinton may end up behind bars, yet.

Thad (profile) says:

Re: Can we admit that the rule-of-law is no longer respected?

I already said this in the other thread, but it seems pretty friggin’ weird to frame this as Trump going after his political enemies. He’s certainly not above such a thing, but Assange is not his political enemy.

Repeating what I said earlier today:

Again, weird as it feels to defend Trump, I think it’s silly to pin this on him.

He doesn’t care about prosecuting Assange or punishing Wikileaks; indeed, they’ve acted in his interest, repeatedly. (He said "I love Wikileaks" frequently on the campaign trail; since Assange’s arrest, he’s switched to "I don’t know Wikileaks; it’s not really my thing.") He’s not doing anything to stop this prosecution, but he’s not steering it, either.

He doesn’t care. It’s one more case where someone he used to consider an ally has gotten in trouble with the law and now he’s pretending he never said any of those things.

While Trump would certainly love to see more prosecutions against the press, I don’t think he’s looking at this in those terms. He is not a man who thinks more than one step ahead. There may very well be a long-term plan here to crack down on the press, but that plan isn’t Trump’s. He’s not a planner.

Samuel Abram (profile) says:

Re: Re: Can we admit that the rule-of-law is no longer respected

I already said this in the other thread, but it seems pretty friggin’ weird to frame this as Trump going after his political enemies. He’s certainly not above such a thing, but Assange is not his political enemy.

I don’t see this as Trump going after his political enemies but Trump getting legal purview to go after his political enemies (i.e. The Press). That is truly frightening, and this is only the start of something much bigger and darker.

Uriel-238 (profile) says:

Re: Re: Re: Steps towards dictatorship

I think that’s my point, not that Trump specifically has anything against Assange, but that now he’s watched the espionage act in action, he’ll move the sights to target his own enemies.

He doesn’t need a budget if he can declare all his projects national emergencies.

And anyone he wants to lock up or any institution he wants to disband can be accused of conspiracy and espionage (not to mention violation of the CFAA).

The new authoritarianism is about turning our crap laws into tools to justify force.

Thad (profile) says:

Re: Re: Re:2 Steps towards dictatorship

I think that’s my point, not that Trump specifically has anything against Assange, but that now he’s watched the espionage act in action, he’ll move the sights to target his own enemies.

I guess it depends on whether they explain it to him on Fox and Friends.

He doesn’t need a budget if he can declare all his projects national emergencies.

But he can’t, though. I responded to that in the other thread too: his national emergency declaration is still tied up in court, with little chance of being upheld. Just because Trump says he can do something doesn’t make it true.

And anyone he wants to lock up or any institution he wants to disband can be accused of conspiracy and espionage (not to mention violation of the CFAA).

He can certainly try. Given the Roberts Court’s record on the First Amendment, what I expect to happen here is that Assange is ultimately convicted on a much narrower set of charges than the ones the DoJ has brought.

(And while I certainly have issues with the CFAA, I think that charge is actually legitimate in this case — soliciting a password hash and offering to crack it is the sort of behavior the CFAA was intended to address, not overreach like the Swartz case or the cases where people have been charged for violating T&Cs.)

That’s assuming it gets as far as the Supreme Court at all. Assange is currently in England. Sweden has requested extradition on rape charges. Even if he gets extradited to the US while Trump is in office, there won’t be a final ruling on this case in the next year and a half, and it’s entirely possible there won’t be one by the end of a hypothetical second Trump term.

Uriel-238 (profile) says:

Re: Re: Re:3 Border wall budgeting by national emergency

US district judge Haywood Gilliam Jr blocked use of funds for the border wall outside of what was allotted in the 2019 budget, at least until the case is resolved.

So, yay! I am pleasantly surprised. And yes, I tend to set myself up for pleasant surprises having long, long had my fill of sore disappointments.

tp (profile) says:

Re: Re: Can we admit that the rule-of-law is no longer respected

"Well, when the president does it, that means that it is not illegal."

When diid the president access documents without being authorised to do so? The biggest problem with the assange saga seems to be that the docs were secret designation, while assange didn’t have permission to access secret docs. But president didn’t really do such actions, at least not according to facts in the blogosphere.

David says:

Re: Can we admit that the rule-of-law is no longer respected?

This is once again another case were laws are selectively enforced, in this case on enemies of the administration and resources of whistleblowers.

I object to characterising somebody who tries to ensure that the administration actually performs its job lawfully as an "enemy of the administration".

That characterisation only makes sense once you consider the administration an enemy of both people and the law of the land.

Let’s hope we are not there yet.

Uriel-238 (profile) says:

Re: Re: "an enemy of both people and the law of the land"

We’ve crossed that line and are deep on the other side, long before the Trump administration.

Look up prosecutorial discretion to see how things work. Look to see how many incidents of police brutality or misconduct there are. Contrast that with the number of police who are convicted, or even lose their jobs permanently.

Trump, for all his idiocy is serving as a penetration tester to see how much the President of the United States can get away with. And so far, it looks like the entire system is broken from the top down.

This raises the question what we’re going to do about it before someone smarter and more ambitious steps in and makes a totalitarian dictatorship out of the US. I’m guessing nothing: Biden may well be our next president and then we roll those dice again.

Anonymous Coward says:

Re: Re: Woodrow Wilson did it first !

It all really started with Progressive President Woodrow Wilson.
In April 1917, Wilson took America into war against Germany, violating his campaign pledgeto keep us out of that stupid European war.
But Wilson also set his sights on certain enemies located closer to home. "Millions of men and women of German birth and native sympathy…live among us," Wilson observed. "If there should be disloyalty, it will be dealt with with a firm hand of repression."

That firm hand of repression came in the form of the "Espionage Act", which Congress passed in 1917 and Wilson eagerly signed into law. Among other things, the Espionage Act made it illegal to "convey information with intent to interfere with the operation or success of the armed forces of the United States or to promote the success of its enemies." That sweeping language effectively criminalized most forms of antiwar speech.
That Espionage Act was and is outrargeosly unconstitutional.

With the Espionage Act in place, Wilson’s threats of domestic repression soon became reality. In August, the Feds arrested and imprisoned Charles Schenck, the general secretary of the American Socialist Party. His crime? –printing and distributing antiwar leaflets. Schenck maintained that the First Amendment clearly protected his right to speak out in that manner, but his arguments fell on deaf ears. On March 3, 1919, the U.S. Supreme Court upheld his conviction.
"When a nation is at war," declared Progressive Justice Oliver Wendell Holmes Jr. in Schenck v. United States, "many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight."

What about freedom of speech & 1st Amendment ??
Justice Holmes waved it off. "The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic," he wrote.
Advocates of government censorship have invoked that sentence ever since.

James Burkhardt (profile) says:

Re: Citizen

The first amendment does not apply only to citizens. It is a proscription on the government passing laws impeding the public discourse.

The legal principle the courts follow is that use of US law, any branch of US law enforcement, or the US judiciary (i.e. any branch of government) to restrain the protected activities of the first amendment requires careful handling, and in general should be avoided without an overwhelming government interest. Defamation law, for instance, is pretty restricted in the US compared to the rest of the world, being narrowly applied to only false statements of fact, with higher hurdles for public figures. As well, the burden of proof is assigned differently in a defamation case in the US than in Europe.

The bar for defamation does not raise or lower depending on the citizenship or territory of the speaker or the person claiming they were defamed. This is enshrined in part in the SPEECH Act, which states that foreign judicial rulings which seek to punish speech protected by the 1st amendment is non-enforceable by US courts. A foreign court could enforce the judgement in a foreign jurisdiction, but the US court can not enforce the judgement.

Conversely, a US court is constrained by the first amendment even when dealing with foreign individuals or organizations. And unless those individuals or organisations expose themselves to US jurisdiction (by being present in the US or having Assets in the US), any ruling in a US court would have to be taken to a foreign court to be enforced.

Anonymous Coward says:

Re: Citizen

The First Amendment begins “Congress shall make no law…” – so the First Amendment isn’t applying to a non-citizen, it’s binding the U.S. Government. It’s proscriptive, not descriptive.

If Assange raises a First Amendment defense, he isn’t saying “I have an explicit right under the Constitution as a non-citizen”, he’s saying “You, the US government aren’t consistently following your own rules”.

John (profile) says:

Good one!

I assume you this article is tongue and cheek and you’re not actually morons.

There’s a HUGE difference between a joke with ZERO follow-up (unless you have some smoking gun about him coercing Russia or giving support to them) and someone who makes actual EFFORT to get or induce someone to get classified material. Not to mention the RESULT. The result of Trump telling his joke was….NOTHING (again, unless you have the smoking gun no one else has), whereas with Manning, the result was actual theft of government documents.

PLUS, did you forget… Hillary swore up and down that there was no classified documents and I believe the FBI "cleared" her, so even if Russia DID get the emails – which has never been proven that they did – if there was no classified material in the emails, then there’s no crime regardless.

That said, I think going after Assange is a mistake. I don’t really care for him personally, but I respect that he serves a legitimate purpose in publishing information on wikileaks. He’s even gone out of his way to remove certain information from the cables that could endanger certain people.

Anonymous Coward says:

Isn’t this just like the San Francisco Journalist who asked for a report, got it and then had all of is stuff seized by the SF Police?

J.A. may have asked Manning to get documents, but he didn’t hold a gun to Manning’s head.

The DOJ, ICE, COB all either need to be eliminated and replaced or overhauled from the ground up and the top down.

A war is going on over our rights that are protected by the constitution. We are loosing. The war will eventually extend into a suspension of those protections completely and the constitution will be declared un-patriotic.

Wendy Cockcroft (profile) says:

Re: Re:

We’re there now on the partisan hackery level, where people on the right are describing the Constitution as the con-stitution.

And before you go all "But Obama!" on me, he’s a neocon and is BFFs with his predecessor Dubya.

The only way to win is to refuse to play the partisan game and get involved in activism. You want to promote and assist with the election campaigns of anyone pushing for our rights, whatever party they are in. That’s how you effect change. It’s actually how Obama won the first time; he had dedicated followers who promoted him and worked for his campaign. Do that, and get your guy (or girl) in.

ECA (profile) says:


The person that did this was given assistance from Assange.

The Data was NOT encrypted, It was just in a section behind a Password. Manning had Access to the HArdware that this was stored, but not the password?

This in a Military that, all key out in the field are the SAME, where if a password is needed on computers that CERTAIN persons are required to have Immediate access to, ALL have the SAME password, and it dont matter if its a missile launcher of Anything else that has a INFIELD computer..
Even if she Learned a few hacks(its mentioned in the Wiki), That access lead to her making LOTS of copies of Unencrypted data..

jaack65 (profile) says:

Equal Protection Under Law is B S

When DOJ becomes a political tool of the govt, then Equal Protection Under Law is a joke and embarrasses me when I call myself an American. Having dual citizenship, my European view of American news shows how shocking the DOJ has become a political tool to demonize a critic of the current administration. Who does the government work for? It is Big business and political; contributors who have bought this government. Contempt of Congress and the ignoring court orders has become the norm and everyday events. Mueller’s report should have been distilled into a few documents that clear up the MASSIVE amount of facts into more manageable and understandable documents. Mueller document is like trying to learn English by giving someone the Encyclopedia Britannica.

Melinda Orp -- now there's a palindrome for ya says:

One of the feeblest stretches ever. No wonder you repeat it.

For least: almost nothing said in public by a political candidate could even in your drug-addled brain possibly be construed as "espionage".

You had to deliberately attain a state of "doublethink" to write this, knowing is utter crap without least basis in law or reality.

Uriel-238 (profile) says:

Re: Penetration testing

How about some congressional intervention?

I agree that the lack of interest in jailing principle officers of the President of the United States suggests the effort to act as a check is nothing more than kayfabe. I’d think that some time behind bars might get Barr and Mnuchin to consider obeying legal orders from Congress. Now that courts have ruled that Mnuchin was bullshitting, we’ll see what he does.

If the president has as much grip on the Department of Justice (and the various branches of the armed forces) that he does on every single GOP senator and representative then there really is nothing that the house Democratic bloc can do, nor is there anything the courts can do, since every last officer who enforces the law owes fealty to the President of the United States.

(Granted, officers are sword to defend the Constitution of the United States, but that typically is overshadowed by their duty to follow direct orders and punishment for failure to do the latter even if it conflicts with the former is typically sooner and more assured.)

It seems out of character for Trump not to defy the courts when they finally rule against him, especially since he’s already declared I own the cops and the army. I’ll do whatever the fuck I want.

Heck, he might even be able to force the House to adjourn at gunpoint, and then mine the capitol building. Extreme, yes, but imagine the ratings!

But then, it seemed out of character for Trump to break the shutdown in February, yet he did. So whatever is going on right now is well outside my ability to predict.

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