Julian Assange has made himself a difficult figure to love. The organization he created, WikiLeaks, has spilled secrets that infuriate the right and, more recently, the left side of the political aisle. He burns all bridges, alienates friends, and sees enemies everywhere. Mounting evidence suggests he even allowed his organization to serve as a leak-laundering service for Kremlin hackers seeking to swing a US election.

But if the US Department of Justice prosecutes Assange, as it reportedly may soon, he could become something else: the first journalist in modern history to be criminally charged by American courts for publishing classified information. WikiLeaks may not look like a traditional journalism outlet, but it shares the same ends—publishing true information from its sources. And that means legal action against Assange could threaten the freedom of the press as a whole.

“Any prosecution would be incredibly dangerous for the First Amendment and pretty much every reporter in the United States,” says Trevor Timm, executive director of the Freedom of the Press Foundation. “You can hate WikiLeaks all you want, but if they’re prosecuted, that precedent can be turned around and used on all the reporters you do like.”

Dangerous Precedent

On Thursday afternoon, the Washington Post and CNN separately reported that the Department of Justice is considering charges against Assange or other “members” of the small, secret-spilling group that constitutes WikiLeaks. Those charges would reportedly stem not only from WikiLeaks’ recent publications of classified CIA materials that include highly secret hacking tools and techniques, but also the seven-year-old publication of 250,000 State Department communications, known as Cablegate, that WikiLeaks received from now-pardoned Army private Chelsea Manning. In remarks just last week, CIA director Mike Pompeo decried WikiLeaks as a “non-state, hostile intelligence agency.”

But as controversial as its publications have been, WikiLeaks and its defenders have argued they were also the work of journalists—albeit ones with a radical adherence to principles of transparency, and new tools for soliciting material from sensitive sources. That journalistic work, in theory, qualifies for protection under the free speech guarantees of the First Amendment.

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For decades, the US Justice Department has restrained itself from testing that protection. Instead, it has limited its prosecutions to the press’s sources, charging many—including Manning—as spies under the Espionage Act.

If the Trump administration prosecutes Assange and WikiLeaks under that same hundred-year-old law, it could represent a new and serious crack in the government’s de facto policy of respecting reporters’ First Amendment protections.

“Never in the history of this country has a publisher been prosecuted for presenting truthful information to the public,” ACLU attorney Ben Wizner, who has defended NSA leaker Edward Snowden, writes in a statement to WIRED. “Any prosecution of WikiLeaks for publishing government secrets would set a dangerous precedent that the Trump administration would surely use to target other news organizations.”

Just what laws the Justice Department might seek to indict WikiLeaks under remains far from clear, and the department didn’t respond to WIRED’s request for comment. But according to the Post, possible charges include conspiracy, theft of government property, and violating the Espionage Act. Assange in particular may be vulnerable to accusations that he aided Manning in stealing material from the US military and State Department: In Manning’s court martial, prosecutors brought forth evidence that Manning had asked for Assange’s help in cracking a cryptographically hashed password.

Journalists like Matthew Keys and Barrett Brown have been convicted of hacking crimes for less. But it wasn’t ever made clear in Manning’s trial whether Assange had actually cracked that password.

Even if he did, the Justice Department may have trouble using that act to charge Assange as a hacker now, says Tor Ekeland, a criminal defense attorney who specializes in hacking cases. The statute of limitations for the Computer Fraud and Abuse Act, Ekeland points out, is five years, and Assange’s communications with Manning occurred more than seven years ago. Prosecutors might try charging him with theft of government property, but Ekeland points out that the secrets in question were technically copied, not stolen.

That might leave charging Assange with aiding Manning in committing espionage as the Justice Department’s strongest course of action. “Theft of government property is a reach, and if they were going to charge him with hacking they should have done it in 2015,” says Ekeland. “That makes this a much harder case, because he can put on a strong First Amendment defense.”

Prior Restraint

President Obama’s Justice Department, whether or not it possessed evidence of Assange helping Manning to steal classified documents, chose not to prosecute Assange despite an otherwise draconian approach to leaked secrets. The Obama administration, after all, prosecuted more leakers under the Espionage Act than all previous administrations combined.

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‘Any prosecution of WikiLeaks for publishing government secrets would set a dangerous precedent that the Trump administration would surely use to target other news organizations.’ Ben Wizner, ACLU

Federal prosecutors had declined to prosecute Assange because of the incursion on press freedom those charges would have represented, says
former Obama DOJ spokesperson Matthew Miller says. “Every time we looked at this, it’s hard to figure out how you charge Julian Assange with publishing classified information without setting the precedent that you charge reporters for doing the same thing,” Miller says. “If he asked Manning to give him documents, or provided Manning with tools by which to get him those documents, well, reporters use a lot of those same tools as well.”

It’s still not certain that the US will ultimately pursue charges against Assange. Even if the DOJ proceeds, Assange may in fact be out of American law enforcement’s reach. The Ecuadoran embassy in London has provided him asylum in London since 2012, when Assange first sought to avoid extradition to Sweden to face questioning for accusations of sex crimes against two women. The embassy may prove just as impenetrable for American agents seeking to try him for espionage.

Even charging Assange in absentia, however, would represent a particularly dangerous precedent under Trump, who has in his first three months already warred with the press over classified leaks, and called the media “the enemy of the people.” It’s a short step from indicting Assange to indicting reporters at major newspapers who similarly publish controversial classified secrets, argues the Freedom of the Press Foundation’s Timm.

“We shouldn’t doubt for a second that as soon as there’s a precedent on the books that allows [the US government] to prosecute publishers for publishing information they consider classified, they won’t turn that on the Times, the Post, and other vital news institutions,” Timm says. “I hope people realize that even if you dislike WikiLeaks in the extreme, prosecuting them is a huge threat to the work reporters do every day.”

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