Wikileaks role in the 2016 U.S. Presidential elections continues to be investigated even as leakers face increasing recriminations under the Trump administration. What is next for Julian Assange and the tempest he unleashed? It depends on whether you think Assange is running a media organization or not. If he is, then the question is whether Wikileaks should be protected by freedom of the press? For news, analysis, history & legal background read on.

News & Updates

April 20, 2017: Wikileaks Among Others Sued by Democratic National Committee For Russia Hack

The Democratic National Committee filed a lawsuit against against Wikileaks, Russia, President Trump’s campaign, a slew of other officials and even the hacker, Gucifer, stating, “No one is above the law.” The complaint details the build up of attacks “on American soil” in a “brazen attack on American Democracy.” Wikileaks is singled out for its publication of John Podesta’s (then chair of Hillary Clinton’s presidential campaign) emails leading up to the election. But will suing Wikileaks hurt news organizations?

Washington Post> The Verge> DNC Complaint>
October 25, 2017: Assange Confirms Wikileaks was Approached by Trump Funded Dating Mining Firm

Cambridge Analytica went to Wikileaks to look for Hillary Clinton’s missing emails as fodder against her during the 2016 presidential campaign. Assange demurred. Now President Trump’s ties with Cambridge Analytica are being questioned by the House intelligence committee as part of its investigation into the President’s potential ties with Russia.

Guardian>
July 21, 2017: How Julian Assange Messes With the World

Raffi Khatchadourian profiles Julian Assange years after he has turned from hero to pariah. What will Wikileaks do next?

New Yorker>

May 19, 2017: Cleared of Swedish Rape Charges, Will Julian Assange Now Be Prosecuted by United States in Wikileaks Case?

Swedish prosecutors dropped rape charges against Wikileaks founder Julian Assange, ending a five-year battle, but Assange is not clear from possible United States prosecution for publishing classified information.

In a recent interview with the Associated Press, Trump was asked if he supported Assange’s actions, and the president demurred saying, “No, I don’t support or unsupport. It was just information. They shouldn’t have allowed it to get out.” When asked if he believes it is, or should be, a priority for the U.S. to arrest Assange, Trump said, “I am not involved in that decision, but if Jeff Sessions wants to do it, it’s OK with me. I didn’t know about that decision, but if they want to do it, it’s OK with me.”

But, as reported by the New York Times, the situation has grown more complex in the wake of the firing of FBI Director James Comey, “it may no longer be entirely up to Mr. Trump’s political appointees whether to go after Mr. Assange. Responsibility for WikiLeaks could be among the matters transferred to Robert S. Mueller III, the former F.B.I. director who was appointed this week by Deputy Attorney General Rod J. Rosenstein as special counsel to oversee the investigation into Russia’s efforts to interfere with the 2016 election.”

New York Times>
April 20, 2017: DOJ Considering Criminal Charges Against WikiLeaks

As reported by The Washington Post, the Justice Department is deciding whether to bring criminal charges against WikiLeaks and its founder Julian Assange. It is unclear if the department is examining the original 2010 leak, the publication of DNC emails during the 2016 presidential campaign, or the recent leak about the CIA’s cyber monitoring. The Obama administration considered bringing a suit under the Espionage Act, but ultimately declined to charge Assange, although the case was never formally closed. Assange’s lawyers maintain that the DOJ can’t prosecute WikiLeaks because it is a publisher like any other media organization.

Washington Post>
April 13, 2017: CIA Director Calls WikiLeaks “Hostile Intelligence Service”

 In a speech, CIA Director Mike Pompeo branded WikiLeaks a “non state hostile intelligence service” and denied that Julian Assange had First Amendment protection.

New York Times>
March 9, 2017: Pence Promises to Pursue WikiLeaks If Information Is Valid

In a television interview with Fox News, Vice President Mike Pence said the administration would “use the full force of law” against WikiLeaks if the recently leaked information on CIA cyber tools proved legitimate.

The Hill>
March 7, 2017: Newest Wikileaks Deluge Hits

Wikileaks documents reveal how government agencies bypass encrypted programs.

New Yorker>

History & Legal Cases

The Obama administration considered bringing charges against Assange for his publication of classified documents, but ultimately declined to do so. As reported by the Washington Post in November 2013, the Justice Department concluded it could not charge Assange without also implicating other U.S. news organizations. Speaking with anonymous officials, the Post reported:

“But officials said that although Assange published classified documents, he did not leak them, something they said significantly affects their legal analysis…. Justice officials said they looked hard at Assange but realized that they have what they described as a ‘New York Times problem.’ If the Justice Department indicted Assange, it would also have to prosecute the New York Times and other news organizations and writers who published classified material, including The Washington Post and Britain’s Guardian newspaper, according to the officials, who spoke on the condition of anonymity to discuss internal deliberations.”

Washington Post>

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The Obama administration was also criticized for its record of prosecuting under the Espionage Act more than any other administration. A report from 2013 notes that, under Obama, “Six government employees, plus two contractors including Edward Snowden, have been subjects of felony criminal prosecutions since 2009 under the 1917 Espionage Act, accused of leaking classified information to the press—compared with a total of three such prosecutions in all previous U.S. administrations.”

Additionally, “Reporters’ phone logs and e-mails were secretly subpoenaed and seized by the Justice Department in two of the investigations, and a Fox News reporter was accused in an affidavit for one of those subpoenas of being ‘an aider, abettor and/or conspirator’ of an indicted leak defendant, exposing him to possible prosecution for doing his job as a journalist. In another leak case, a New York Times reporter has been ordered to testify against a defendant or go to jail.”

CPJ>

Analysis & Opinion

May 9, 2017: Concern among media orgs over possible WikiLeaks charges

Writing for The Hill, the Washington director of PEN America Gabe Rottman expressed concern over possible criminal charges against WikiLeaks and the implications for other media outlets. During his May 3 testimony in front of the Senate Judiciary Committee on FBI oversight, now-former FBI Director James Comey indicated that WikiLeaks was still a priority of FBI investigations and suggested that WikiLeaks could be prosecuted under the Espionage Act. Comey also differentiated WikiLeaks from other news outlets, stating, “To my mind it crosses a line when it moves from being about trying to educate a public and instead just becomes about intelligence porn, frankly, just pushing out information about sources and methods without regard to interests.” Comey did reiterate that, “newsgathering and legitimate news reporting” would not be investigated or prosecuted. But Rottman argues that prosecuting WikiLeaks, “would create a troubling precedent. While it might be easy to label WikiLeaks as ‘intelligence porn’ or a ‘non-state hostile’ spying agency, actually distinguishing between WikiLeaks and a ‘mainstream’ outlet will be both exceedingly difficult in practice, and will invite retaliatory and inconsistent enforcement to chill critics of the government.  Put another way, this really has nothing to do with WikiLeaks. It’s about the fundamental truth that no journalist has ever been prosecuted, nor should they be, for reporting truthful information, irrespective of the source or secrecy. That’s what reporters do every day.”

The Hill>
April 26, 2017: Assange May Not Get First Amendment Cover, Lawyers Say

First published at the Just Security blog, University of Texas law professor Steve Vladeck and New York University law professor Ryan Goodman discuss the possible implications of a DOJ charge against Assange, and whether he would have First Amendment protection.

Vladeck wrote: “Although the First Amendment separately protects the freedom of speech and the freedom of the press, the Supreme Court has long refused to give any separate substantive content to the Press Clause above and apart from the Speech Clause…The Supreme Court has never suggested that the First Amendment might protect a right to disclose national security information. Yes, the Pentagon Papers case rejected a government effort to enjoin publication, but several of the Justices in their separate opinions specifically suggested that the government could prosecute the New York Times and the Washington Post after publication, under the Espionage Act. To be sure, the Court has held that, in some circumstances, the First Amendment protects public disclosure of confidential information (and has applied what’s known as ‘Pickering balancing’ to assess when the public interest in disclosure outweighs the government’s interest in preserving confidentiality), but even the Bartnicki decision–in which the Court ruled that the First Amendment protects a radio station’s broadcasting of an unlawfully recorded audio conversation–turned to a large degree on the parties’ stipulation that the radio station itself had acquired the recording ‘lawfully.’ Because of the Espionage Act, there’s no way for a third party ‘lawfully’ to acquire classified national security information that they are unauthorized to possess. So I’m skeptical that Assange (or the New York Times, for that matter) would have a clear-cut First Amendment defense to the publication of classified information in anything but the most extreme case of public concern (and perhaps even then).”

Just Security>
March 10, 2017: Other Legal Experts Say Assange Might Have First Amendment Claim

Judge Andrew Napolitano, a Fox News legal analyst, said that Assange might have a claim to First Amendment protection. “If a stolen document containing state secrets gets into the hands of the press, which is loosely defined as any entity in the business of revealing things, and it is a matter of public interest then it can be exposed with impunity,” Napolitano said. “Assange is clearly a media entity, albeit an unorthodox one… so the thief, the person who hands it to WikiLeaks, is the criminal. Not WikiLeaks.

In 2013, NBC News held a roundtable of legal scholars to discuss, “If the United States seeks to put on trial WikiLeaks and its founder, Julian Assange, what are the implications for freedom of speech, for protection of government secrets and for news organizations on the Internet?” Defense lawyer, Abbe D. Lowell,  former deputy assistant secretary for policy and acting assistant secretary for international affairs in the Department of Homeland Security under President George W. Bush, Paul Rosenzweig, and American University law professor, Stephen Vladeck discussed Assange’s role as a journalist and protections afforded him.

Fox News> NBC News>