Isolated in Britain’s Belmarsh Prison, Julian Assange was too ill to attend his own extradition hearing this week—a hearing now postponed to mid-June. This pause in the action is also an opportunity to contemplate the dangerous new path on which the Trump administration has embarked in its pursuit of the WikiLeaks founder, with the 17 new counts of violating the Espionage Act filed by the Justice Department last week. Those new counts make the real targets of the Assange prosecution clear: journalists worldwide.
The new charges against Assange—far broader than the narrow password-hacking charge on which he was first detained for extradition—are unprecedented, politically charged, and consequential. Like the earlier charge, they focus on his 2010 publication of the “Iraq War Logs” document cache and the “Collateral Murder” video showing airstrikes targeting two Reuters correspondents. These new charges accuse Assange of trying to persuade his source, Chelsea Manning, to leak; of helping to protect that source’s identity; and of publishing information that, in government officials’ opinion, could harm national security. All of these charges may well describe how intelligence officials view the leaks in question. But they also describe the routine tradecraft of investigative and national-security journalists—and they would effectively criminalize a wide range of essential reporting practices in the United States.
The DNA of these new charges runs deep into the history of presidential abuse of power. President Trump and Attorney General William Barr are explicitly picking up the foiled press-punishment ambitions of President Richard Nixon in the Pentagon Papers case. When The New York Times first published the Pentagon Papers in June of 1971, Nixon might have let the storm pass. After all, the papers, leaked by former Pentagon analyst Daniel Ellsberg, didn’t directly critique the new Republican president; they exposed the disastrous, cynical Vietnam policies of Nixon’s hated Democratic predecessor, who had been repudiated by his own party. But Nixon saw in the publication of a secret Defense Department study of US involvement in Vietnam something else: his opportunity to muzzle restive, critical journalists. So his Justice Department went to court and, citing the Espionage Act, won an injunction blocking the Times from continuing to publish its series. As Steven Spielberg recounted in The Post, his 2017 film about that Washington paper and the Pentagon Papers case, reporters and editors at the Post defiantly obtained and published their own copy of the documents; other news outfits rallied round; and ultimately the US Supreme Court upheld the Times’and the Post’s First Amendment right to publish without prior government restraint.
Spielberg’s film didn’t mention that the Pentagon Papers decision, ringing as it was, left one glaring loophole: the Espionage Act itself. The Court deliberately sidestepped any ruling on whether the act could be deployed to punish publishers of secrets as co-conspirators after the fact. Even after losing the Pentagon Papers case, Nixon and his Attorney General John Mitchell pursued an Espionage Act prosecution of whistle-blower Ellsberg—which fell apart only when it became clear that the Nixon administration’s gross misconduct in its attempt to identify and punish government leakers, eventually revealed in the Watergate scandal, had irretrievably damaged their case. While American journalism has spent decades savoring the Pentagon Papers victory, that Espionage Act loophole has been sitting, waiting for a president desperate enough, vindictive enough, or thuggish enough to make use of it.
That president is, of course, Donald Trump, who with his new Espionage Act counts against Assange has driven a truckload of explosives through that half-century-old loophole. Like Nixon, Trump has no obvious interest in prosecuting leaks of years-old controversies that damage the reputation of a past administration. But like Nixon, he will seize any opportunity to weaken an independent press.
Trump also understands—better than Nixon did—American journalism’s chronic lack of solidarity. The most thrilling scene in Spielberg’s film may be when the Post’s executive editor, Ben Bradlee (played by Tom Hanks), and assistant managing editor Ben Bagdikian (Bob Odenkirk) contemplate a stack of regional newspapers from around the country following their lead in publishing the leaked reports. That scene recollects high heroism. But it was an exceptional gesture from a profession normally cautious in defending boundary-pushing colleagues. Trump, unlike Nixon, has been shrewd in choosing antagonists whom news-business colleagues may find objectionable, whether it be Univision’s Jorge Ramos, a reporter of uncompromising disposition resented in some quarters as a TV showboat, whom candidate Trump’s security squad bodily evicted from a press conference in 2015; or Assange, under investigation in Sweden for sexual assault and derided by many news professionals as a mercurial political actor.
According to the Post, Attorney General Barr filed the new Espionage Act charges over the objections of career Justice Department prosecutors who assembled the original, narrow Assange indictment. If and when Assange appears in an American courtroom, judges will confront a stark choice: whether to expand on the Pentagon Papers precedent and protect public-interest whistle-blowers and publishers alike, or turn the 102-year-old Espionage Act into a 21st-century official secrets law.
Barr has made his bet. He knows that today’s federal courts are populated with Republican appointees far more friendly to expansive presidential power and national-security claims than the civil-libertarian Supreme Court of 1971. Indeed, many—like the newest Trump-appointed Supreme Court justice, Brett Kavanaugh—regard themselves as intellectual heirs of former chief justice William Rehnquist, who as an assistant attorney general led Nixon’s attempt to squelch the Post’s publication of the Pentagon Papers, and who on the Supreme Court championed the restoration of unbridled executive authority.
The press-freedom dangers of these Espionage Act charges don’t stop at the US border. As Joel Simon of the Committee to Protect Journalists has pointed out, this prosecution sets a dangerous precedent because Assange is not a US citizen and he worked outside the United States; a publisher or activist in Britain, New Zealand, Japan, or any other nation who receives a leaked US-government document could be subject to US indictment and extradition. The dangers also run in the opposite direction; the prosecution could also encourage authoritarian nations to prosecute American reporters who publish, say, secret details about those nations’ human-rights abuses.
The new charges transform the case against Assange into a blatantly political campaign to limit independent journalists and muckrakers—a cornerstone of the Trump agenda articulated by the president himself. Ironically, if there is any glimmer of hope in this high-stakes bet by Trump Justice, it is that the broadening of the Assange charges may actually strengthen his argument against extradition. Nearly all the world’s treaties—including those of the United States and Europe—explicitly exempt “offenses of a political nature” from extradition. It’s hard to imagine a more political case than the one created by these new Espionage Act charges.
So this is Julian Assange’s best hope: that Attorney General Barr’s zeal to establish an Espionage Act precedent has created two potential new barriers to Assange’s prosecution and conviction. Extradition will be up to courts in either Britain or Sweden, depending on whether the UK gives precedence to Washington, or hands Assange off to Stockholm to face sexual-assault charges. Jurists in either country would need to consider the political nature of the case against Assange. And then, if he ever arrives on US soil, it will be up to American judges to consider the enormous First Amendment dangers of prosecuting a publisher under the Espionage Act.
It is small comfort to Assange, in his maximum-security detention cell, that there is—thanks to the Trump administration’s latest political attack on the institution of independent journalism—at least a fighting chance that this prosecution will fail before it gets started. But for that to happen, it will take vigorous and persistent articulation by journalists and our allies of what’s at stake. If the Trump administration can transform the Espionage Act into a weapon against muckraking publishers, the Pentagon Papers triumph of 1971 will fade overnight into a threadbare memory of press freedom lost.