Criminal Justice & the Rule of Law Executive Branch Intelligence

What to Look for in Possible Assange Charges

Susan Hennessey, Quinta Jurecic, Matthew Kahn, Benjamin Wittes
Friday, November 16, 2018, 12:20 PM

There’s much that’s not clear about reports that the U.S. government may have filed charges against the Wikileaks founder. Here are some questions we’ll be asking when there’s more information.

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The Washington Post and New York Times are both reporting that the government has filed criminal charges against Wikileaks founder Julian Assange. While the charges remain under seal, a government error in an unrelated case in the Eastern District of Virginia seems to have inadvertently revealed that there are, in fact, pending charges against Assange.

The government inadvertently tipped its hand in a motion in a criminal case against someone else, a motion filed on Aug. 22, as tweeted by Seamus Hughes, the deputy director of George Washington University’s Program on Extremism. It looks like a prosecutor may have accidentally copied and pasted the language containing Assange’s name into the motion to seal a different criminal complaint. Presumably, therefore, material on charges against Assange was circulating by late August—either in draft form within the Justice Department or in court.

A spokesperson for the U.S. attorney’s office for the Eastern District of Virginia confirmed that Assange’s name was used “in error” in the filing and both the Post and the Times cite sources “familiar with” the matter as confirming the existence of charges. If there really are charges against Assange and the government has blown the seal that it had presumably requested, the court is likely to unseal the document in relatively short order, since the government’s screw-up eliminates the underlying rationale for the secrecy: that Assange would find out about the charges prior to arrest.

Until there is an indictment to examine, there is limited value in debating the relative merits of legal questions which might be raised depending on how and why Assange in charged. However, it is possible to map out some of the big questions in advance. Once there’s a document to look at, here are some of the questions we will be asking:

First, what is the nature of the charges? The most important question is what Assange is being charged with and why. There is a wide range of possibilities, many of which Hilary Hurd previously explored on Lawfare. Is Assange facing charges under the Espionage Act (18 U.S.C. §798) for the publication of classified materials? Is he charged under 18 U.S.C. §641 for knowingly receiving a record or thing of value stolen from the United States? Either of those possibilities would raise sensitive questions related to the prosecution of journalists and the First Amendment. (Discussed further below)

But there are other possibilities. In July 2018, Mueller indicted 12 Russian military intelligence officers for conspiracy to hack into computers owned by the Democratic Party and Clinton campaign and publish those documents in such a way as to influence the election. Identified in the indictment as an important conduit for that publication is “Organization 1”—identified by the press as Wikileaks. It is possible that the charges are related to some allegation related to Wikileaks’s role in that conduct. If so, the charges may look similar to the prior charging instruments Wikileaks has already been named in.

This case is a much bigger deal if it involves Wikileaks’s role in the 2016 election than if it involves, say, its role in the Chelsea Manning leaks or other historical Wikileaks activity. While it’s possible that the charges are connected to the hacking indictment filed by the special counsel’s office, as noted above, and thus squarely related to the 2016 election conspiracy, there is also an entirely different prosecution that might implicate Wikileaks. Federal prosecutors in the Southern District of New York have acknowledged that they believe a former CIA contractor, Joshua Schulte, is responsible for leaking the “Vault 7” materials to Wikileaks. (Schulte initially faced child pornography charges and was later charged with disclosing classified information in a superseding indictment.)

Second, when would any charges have been filed? The prospect of criminal charges against Assange within the United States is not a new one. In 2013 the Obama administration “all but concluded” that it could not bring charges against Assange for his role in publishing classified information because of the difficulty of distinguishing legally between Wikileaks and traditional media organizations such as the New York Times and the Guardian. Rumblings began to pick up over a possible indictment against Assange in April 2017 under the Trump administration, despite President Trump’s protestations that he loves WIkileaks, and the Wall Street Journal reported on Nov. 15 that “The Justice Department is preparing to prosecute WikiLeaks founder Julian Assange and is increasingly optimistic it will be able to get him into a U.S. courtroom.” (The Journal’s reporting prompted Hughes’s tweet.) Assange has long speculated on the existence of a sealed case against him—as have others—so one question is whether this is some long-gestating case that has suddenly come to light, or whether it’s a new case, filed as recently as August 2018, the date of the erroneous Justice Department filing.

Third, who brought these charges against Assange? There are at least three possibilities as to who brought these charges. It could be the U.S. attorney for the Eastern District of Virginia in cooperation with the Justice Department’s National Security Division. (This is the mechanism by which alleged troll farm accountant Elena Khusyaynova was charged in Alexandria and accused Russian spy Maria Butina was charged in the District of Columbia.) Alternatively, it could be the special counsel’s office, though that would raise the question of how the U.S. attorney’s office came to be cribbing from a brief filed in the Assange case. Another possibility is that it could be that the charges stem from the special counsel’s investigation, but that Mueller’s team spun them off to the local U.S. attorney’s office, along the lines of how his office handled the investigation of Michael Cohen in the Southern District of New York; Khusyaynova’s case clearly has roots in the Mueller investigation, and it’s likely that Butina’s does as well. The answer to this question may offer clues as to the nature of the charged conduct.

Fourth, how will the government distinguish between Wikileaks and traditional journalistic organizations like the New York Times? This may or may not be a critical question, depending on what precisely the government has charged Assange with. There are certain things, after all, that not even journalists get to do. Yet as we noted above, it might be a very important question: this was the issue, after all, that reportedly tripped up the Obama administration in pursuing charges against Assange. Jack Goldsmith has written extensively on this issue at Lawfare—and press freedom advocates will be watching closely to see if there is any limiting principle that could enable Assange’s prosecution while shielding the New York Times or the Washington Post.

The Justice Department has regulations, last updated by Eric Holder in 2015, governing obtaining information and records from, making arrests of, and bringing charges against members of the press (see 28 C.F.R. §50.10). These regulations are reasonably protective. But they contain an important exception: “The protections of the policy do not extend to any individual or entity where there are reasonable grounds to believe that the individual or entity is … [a] foreign power or an agent of a foreign power” as defined in the Foreign Intelligence Surveillance Act. It also exempts those for whom there are reasonable grounds to believe the individual or entity is “[a]iding, abetting, or conspiring in illegal activity with a person or organization” that is a foreign power or agent of a foreign power. Given that then CIA director Mike Pompeo has said in public remarks at CSIS that Wikileaks is a “non-state hostile intelligence service,” this language, depending on how precisely the government regards Assange, could enable the department to distinguish between him and a journalist.

Fifth, what will happen to Assange’s cat?

Our detailed explainer on feline extradition law is forthcoming.

Susan Hennessey was the Executive Editor of Lawfare and General Counsel of the Lawfare Institute. She was a Brookings Fellow in National Security Law. Prior to joining Brookings, Ms. Hennessey was an attorney in the Office of General Counsel of the National Security Agency. She is a graduate of Harvard Law School and the University of California, Los Angeles.
Quinta Jurecic is a fellow in Governance Studies at the Brookings Institution and a senior editor at Lawfare. She previously served as Lawfare's managing editor and as an editorial writer for the Washington Post.
Matthew Kahn is a third-year law student at Harvard Law School and a contributor at Lawfare. Prior to law school, he worked for two years as an associate editor of Lawfare and as a junior researcher at the Brookings Institution. He graduated from Georgetown University in 2017.
Benjamin Wittes is editor in chief of Lawfare and a Senior Fellow in Governance Studies at the Brookings Institution. He is the author of several books.

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