Federal Prosecutors Questioned The Assange Prosecution, But Their Concerns Were Ignored By The DOJ

from the gov't-gets-it-man-and-the-citizens-get-a-little-less-free-speech dept

The DOJ spent several years toying with the idea of prosecuting Julian Assange for the publication of leaked documents. It finally pulled the trigger earlier this year, utilizing UK police to pick up the ousted Assange from the Ecuadorian embassy. There was only a single charge related to cracking passwords protecting classified documents. It wasn’t much of an indictment, but it initially appeared the DOJ might steer clear of the First Amendment… well, at least as well as it’s capable of doing.

That all changed last week. The DOJ brought a new indictment, loaded with charges and First Amendment implications. It was no longer limited to some password-cracking attempts that went further than receiving sensitive files from a source. The new indictment basically turns journalism into treason. Things journalists do every day, like cultivating sources, seeking out leakers/whistleblowers, and publishing the results of these efforts are all treated as Espionage Act violations.

The charges are so broad, they cover more than the day-to-day business of journalism. If all it takes is asking someone to hand over sensitive documents, it’s likely Donald Trump himself violated the Espionage Act while still on the campaign trail when he informally asked Russia to dig up 30,000 emails from then-State Department head Hillary Clinton’s servers.

This prosecution has the potential to do so much damage to First Amendment press protections, even the DOJ wasn’t of a single mind when it came to pushing the new indictment.

Two prosecutors involved in the case against WikiLeaks founder Julian Assange argued against the Justice Department’s decision to accuse him of violating the Espionage Act because of fear that such charges posed serious risks for First Amendment protections and other concerns, according to people familiar with the matter.

The Obama Administration began the case against Assange, but ultimately decided to abandon its pursuit of this prosecution because of the very issues we’re seeing raised now. Unfortunately, the case was never closed. Incoming Attorney General Jeff Sessions pushed this back into the prosecutorial queue as part of the Trump Administration’s efforts to deter whistleblowers and leakers.

That push was met with internal resistance from two DOJ prosecutors who recognized the prosecution being pushed by AG Sessions was highly problematic.

When it came to Assange, [prosecutor] James Trump was concerned about pursuing a prosecution that was so susceptible to First Amendment and other complicated legal and factual challenges, the people familiar with the matter said.

Another prosecutor, Daniel Grooms, also disagreed with charging Assange, according to the people familiar with the matter. At the time, Grooms served as criminal chief in the U.S. Attorney’s office that was handling the case.

By the time the first indictment was issued, James Trump’s opinion had been disregarded and Grooms was no longer with the agency. Their protests weren’t enough, and now the DOJ is neck deep in Constitutional concerns.

The Assistant AG leading Assange’s prosecution said the following during his announcement of the superseding indictment, as if this somehow threaded the needle on the Constitutional side effects of turning journalism into treason:

The Department takes seriously the role of journalists in our democracy and we thank you for it. It is not and has never been the Department’s policy to target them for their reporting.

Julian Assange is no journalist. This made plain by the totality of his conduct as alleged in the indictment—i.e., his conspiring with and assisting a security clearance holder to acquire classified information, and his publishing the names of human sources.

Indeed, no responsible actor—journalist or otherwise—would purposely publish the names of individuals he or she knew to be confidential human sources in war zones, exposing them to the gravest of dangers. And this is just what the superseding indictment charges Julian Assange with doing. The new charges seek to hold him responsible in light of the full breadth of his illegal conduct.

But that is journalism. Journalists encourage sources to acquire classified information. Journalists publish documents that may result in harm to national security. It happens and it’s part of the job. It’s an integral part of holding the government accountable for its actions. Yes, journalists should take care to prevent foreseeable harm, but they are under no obligation to withhold every bit of information the government feels shouldn’t be published.

I supposed we should be happy there was some internal pushback. But the DOJ is engaged in a very dangerous prosecution that, if successful, will lay the groundwork for prosecuting journalists for engaging in journalism.

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Comments on “Federal Prosecutors Questioned The Assange Prosecution, But Their Concerns Were Ignored By The DOJ”

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Harry Plank-Walker says:

Yeah, we know. Fully covered while Techdirt dormant over weekend

Say. Where did Assange come from, anyway? Australia, huh? But I mean where educated and so on, not just the cardboard cutout which popped up out of the blue with money (millions!), a way to hide identity (spy craft that has to be good for people risking jail!), and an organization to take care of matters while he’s out of the loop (who are now apparently all dead). Quite an anomaly in every aspect.

David says:

"no journalist"

To quote the First Amendment:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The juxtaposition of "speech" and "press" makes it clear that we are talking about the freedom of spoken and printed matter; there is no implication of any profession connected with it.

Saying that only government-recognised journalists are to enjoy freedom of the press is about the same as stating that only government-recognised speakers are to enjoy freedom of speech.

We are not really talking about "highly problematic First Amendment implications here", the First Amendment is just considered non-existent.

That One Guy (profile) says:

Re: Re: Re: And if you believe that I've got a bridge to sell you

Given they’re charging him under the Espionage Act, where motive is not an allowable defense, no, he would not, and that’s not even mentioning how many government agencies/employees consider ‘constitutional rights’ to be entirely at their discretion these days.

David says:

Re: Re: Re:2 And if you believe that I've got a bridge to sell you

You know, if "motive" should not be an allowable defense but just "I didn’t do it", then it shouldn’t be an allowable accusation either.

"This endangered the life of service men" is incidental and should not be an allowed statement for the prosecution. Any mention of consequences need to be stricken since consequences are not allowed for the defense either.

Treason, defined as lending comfort and support to the enemies of the U.S., should be completely off the table since its definition is entirely incidental.

It’s well worth noting that Daniel Ellsberg, someone accused under the Espionage Act for passing on the Pentagon Papers to journalists, only left court as a free man because the government was not content with the completely tilted table of the Espionage Act accusation (which made the case go really badly for Ellsberg) but burglared his psychiatrist and wiretapped his defense lawyer and so the judge threw the whole case out of court because he did not see himself able to provide even the mockery of justice left under an Espionage Act accusation.

If the government had not thoroughly sabotaged its own case outside of the court, it would have had Ellsberg in the bag.

R,og S/ says:

Re: Re: Re: "no journalist"

Good humor.

A guy in a tinfoil hat, rambling on about "rights " in the USA.


Most citizens havent had those since the era of Mothers Against Drunk Driving, and VAWA. It was these two mivements that brought cops into our sacred private spaces: our cars, and our homes, without warrants.

Oh, and into our bodies, of course, with breathalyzers, syringes, bullets…. .

Bruce C. says:

Re: Re: Re:3 On paper vs in practice

Extradition hearings would be under UK law though.

Assuming he is extradited to the US, he would be subject to the same constitutional protections as any accused citizen. Assuming he’s got a good enough lawyer.

Personally, I hope they do go after him under the espionage act. Assange and Wikileaks seem to be excellent defendants that can appeal a conviction up to SCOTUS and have a good chance to get the espionage act ruled unconstitutional.

Anonymous Coward says:

Re: Re: Re: "no journalist"

Non citizens, not in the US are not entitled to US Constitution protection.

They should not be subject to US law either, but them the US government has become one of the most vindictive should it feel it has been offended. Oh, and its assassinations are less well targetted that the Russians, who get an operative close to their target, rather than raining down missiles.

Anonymous Coward says:

Re: "no journalist"

The juxtaposition of "speech" and "press" makes it clear that we are talking about the freedom of spoken and printed matter; there is no implication of any profession connected with it.

Well, that clears it all right up, then.

Electronic data is neither spoken nor printed: there’s no "freedom of the bits" listed in the amendment, therefore what Assange did isn’t protected.

That technicality down, the next is to figure out a way to twist the word "four" to mean "six" in Article Two, Section One.

Anonymous Coward says:

Re: Re: "no journalist"

OK, then. Let’s continue with this little game of yours:

You have no right to bare arms. (Because that was for a well regulated militia, of which does not officially exist and you are not a member of.)

You have no right to a fast and speedy trial. (Because all of the courts are full so take a number and get in line.)

You have no right to vote. (Because voting machines are electronic we just change them at will.)

You have no right against self-incrimination. (Because your phone and social media accounts will squeal for you, and we’ll just demand you unlock that safe for us.)

You have no right against taxation without representation. (Because if you’re a felon, you are subhuman and therefore exempt. If you’re a pleb, you don’t have the money required to buy legislation in congress. )

We could do this all day, but the point is: Just because a new means of doing things is created, doesn’t mean all of the prior laws are suddenly invalid. It’s people like you that allow corruption to occur because of your explicit interpretations of the law.

Anonymous Coward says:

Re: "no journalist"

Spot on David. First amendment protections are universal. There is no profession involved.

Who wants the government deciding who is and who is not a journalist anyway?

Obama used the Espionage act against the leakers. His admin wanted to go after Assange, but that, going after a publisher, was know as the "New York Times" problem.

Trump’s DOJ dont care. Which is pretty stupid, because

a) this makes the extradition case harder (they’re using a never tried in court indictment), and

b) the case will go all the way to the Supreme Court in which a few judges might just think that the 1st amdt is important.

Meanwhile, the Qanon people will be saying "Yes, its Trump’s plan to protect Assange". Oh dear, here we go again.

R,og S/ says:

Re: Re: "no journalist"

…and one other little problem in your argument: that the fraud that the NYT is would then be revealed to being a tribalist rag with extensive CIA ties, aka “anonymous sources”

Too bad Assange isnt….tribalist and sectarian, because non racist /tribalist objectivity is what is really being targeted here.

Anonymous Coward says:

Re: Re: Re: "no journalist"

Are there any examples of this nefarious fraudulent NYT tribalist rag?

Why pick on only one media outlet as they are all guilty at some level … some just more than others. Certainly you are not going to tell me that Faux News, ButtBart, and Infowhores are completely free of any and all tribalism, fraud and general mis information.

Anonymous Coward says:

So, telling the truth is now treason … interesting take on the constitution as what I read did not support such a charge.

Treason, as defined in the constitution, is very specific and does not allow a whole lot of the typical political bullshitting in order to arrive at the wanted conclusion(s).

I would like to know what the government recommendation is for someone who has knowledge of a crime and therefore is required by law to divulge same but the nature of the transgression is for whatever reason classified so you are not allowed to disseminate. two laws that make the person a criminal no matter what they do. I guess the first thing to do is get a lawyer.

Anonymous Coward says:

the forgotten rape charges

Since Sweden has now refiled those old rape charges against Assange, it would seem that he would first have to be handed over to Sweden to face justice there (assuming that Sweden is now actively seeking his extradition) since Assange had already lost that extradition battle in UK courts before requesting sanctuary in a London embassy.

That’s assuming that the "first in line" rule is not overruled by the "800 pound gorilla" rule.

Anonymous Coward says:

Re: Re: the forgotten rape charges


If Sweden formally seeks Assange’s extradition to Sweden, it will be up to British authorities to decide whether Sweden’s request gets precedence over a US extradition request.

It’s of course possible that Assange could be sent to Sweden instead of the USA, and whether he is convicted of rape or not, Sweden could potentially refuse to extradite him to the United States to face such serious charges of a highly political nature. It’s almost a certainty that Sweden would have to agree to a future US extradition request if they want to get Assange from UK custody. (of course, promises can easily be broken, as Assange himself found out)

Anonymous Coward says:

Re: the forgotten rape charges

There are no "charges". He has never been charged.

There is an investigation which has already been dropped twice, and there a problems with the evidence (the ‘ripped condom’ did not have any of Assange’s DNA).

It is, and has always been, political.

Anonymous Coward says:

Re: Re: the forgotten rape charges

It is, and has always been, political.

Not according to Anna Ardin, who only "discovered" that she had been raped after finding out that Assange had been two-timing her. For Ardin, it has always been a personal vendetta to make Assange pay for his betrayal.

" would be very surprised & sad if Julian is handed over to the US. For me this was never about anything else than his misconduct against me/women and his refusal to take responsibility for this."


Anonymous Coward says:

Re: Re: Re:2 the forgotten rape charges

The assertion regarding Assange’s rape charges that "It is, and has always been, political" would certainly appear to be contradicted by rape accuser Anna Ardin’s own statement that "For me this was never about anything else than his misconduct against me …"

Unless of course, Anna Ardin is lying. Some people have even claimed that Ardin is a CIA asset who was tasked with doing exactly what she did in order to ensnare Assange, but such conspiracy theories, while at least plausible early on, became increasingly less likely as time went by and Anna went public with her story on social media.

Anonymous Coward says:

Re: Re:

2nd most un-American group. The first is the group trying to overturn a valid election through politically motivated government action. The exact scenario that the left warned the right not to participate in when Trump inevitably lost btw. Obstructionist politics at its best.

The irony is deafening.

Tin-Foil-Hat says:

Re: Why not charge the New York Times while waiting for Assange?

Yes there is a reason. It will be easier to prosecute Aassange than the New York Times with their team of lawyers and resources that can drag the case out much longer. If they succeed they’ll use the precedent to go after anyone that embarasses, criticizes or exposes the US government just like every other despotic, authoritarian country. Constitutional protections have mostly been eroded. Why stop now?

Tin-Foil-Hat says:

Re: Re: Re: Why not charge the New York Times while waiting for

I just cited this case to some person who asserted "the law is the law" as though the law reads like the ten commandments and the government is free to do as it pleases. I personally hope this does set a precedent and not the one the government is hoping for.

That One Guy (profile) says:

'No REAL journalist would make the government look bad.'

Indeed, no responsible actor—journalist or otherwise—would purposely publish the names of individuals he or she knew to be confidential human sources in war zones, exposing them to the gravest of dangers.

Well it’s a good thing that he didn’t actually do that then, either that or the military employs super-humanly lucky people given that they couldn’t find so much as a single person in the field who was actually harmed by his actions.

Now, if you widen the definition of ‘danger’ to ‘harm to reputation’, that certainly seemed to have a number of ‘casualties’, but surely they wouldn’t be so grossly dishonest to conflate ‘put troops in danger’ with ‘made those in power look bad’, right?

Anonymous Coward says:

Re: 'No REAL journalist would make the government look bad.'

Wait – what?

"Indeed, no responsible actor—journalist or otherwise—would purposely publish the names of individuals he or she knew to be confidential human sources in war zones, exposing them to the gravest of dangers."

Yeah right, said Valerie Plame

Anonymous Coward says:

So, who is this Assistant A G? Who is pulling his chain? Has the US made Sweden reintroduce the ‘akkegations of rape? Has this been done so Assange can be extradited to Sweden, making the UK feel it gas done nothing wrong when Seeden then extradites Assange to the US ti be tortured for life or put to death for making the public aware of the crap the US was up to? That seems like the plan and is gonna set a precedent so no one dares to report on the shit the various, especially the US, governments pull! Dictatorship, Fascism, Communism, and more all rolled into one! Land of the free, home of the brave, never again! Just to please exactly who???

R,og S/ says:

re: Mohammed Warsame, 2004

I reported on the first Somali " manufactured terrorist ”prosecution in Minnesota in 2003-4 in a little college newspaper.

By all accounts, no one I interviewed had the slightest fear of the guy, including his classmates, coworkers, etc. One FBI snitch, even said “the worst thing I can say about the guy is that he was a terrible driver…and he has stinky feet. ”

And, as most of those cases have it, by "coincidence " the snitch was ALSO the guys driving tutor.

And, I coupled that story with another story about the coming COINTELPRO 2.0, and the FBI "watching us as we surf the web. ”

Shortly thereafter, I got a flier from the ADL slipped under my. newsroom door, in the form of a press release. I refused to run it.

Then, my little college newsroom was rifled, without any warrant, ever, and my life became a freeway of nefarious rotten bastards local /state /federal/private contractor capacities, working overt and covert angles, and waging chaos in many forms.

I dont recall any of the big media taking my complaints seriously, though Trevor Aaronson at the Intercept eventually covered Warsame, and manufactured terrorism some many years later, and that, only after tribal-sectarian interests cockblocked real journalists like me, wringing their hands like Queen Esther, thinking the sky is falling.

And now, as journalism itself is threatened time and time again, I sort of chuckle, because I know who is threatening it.

And it aint the Chinese, the Saudis, or Russia – its the Israelification /ADLification of our press.

Anonymous Coward says:

I’m rather tired of the borderline falsehoods from TD…

"…utilizing UK police to pick up the ousted Assange from the Ecuadorian embassy."

This is false. The UK police were handed Assange BY THE EMBASY STAFF when his asylum request was revoked by the Equadorian government because he basically wore out his welcome in rather nasty fashion. There was a warrant for his arrest by the UK courts for his arrest on jumping bail so he was handed over to the UK police. If anything Sweden has a far bigger claim on this scumbag than the US does for rape and sexual assault.

Anonymous Coward says:

this isn’t about finding him guilty

This is about putting together a facade of illegality in order to extradite him ( and keep him in jail during the process) and then to charge him and put him through the legal process of defending himself ( and keep him in jail during the process)

I forsee Julian being in jail for many years, even if eventualy found not guilty on all charges.

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