In a little-noticed federal court case in the spring of 2004, the U.S. government charged Washington Post journalist Robert Novak with one count of conspiracy to commit computer intrusion, after it was revealed that in 2003 a CIA source gave Novak classified documents from the agency, after which Novak used his knowledge to help the source attempt to hack—i.e., steal more classified information from—another classified CIA database. Novak eventually published the classified information his source stole in a controversial July 2003 report that unmasked Valerie Plame as an undercover CIA spy. Novak was found guilty and went to prison, after which he was pardoned by President Donald Trump, renowned champion of the press and non-ideological defender of civil liberties.
Everything in that last sentence, of course, never happened, because journalists at major outlets such as the Washington Post, the New York Times, the Atlantic, the L.A. Times, NPR, Paste Magazine, etc., don’t commit crimes in order to get their stories. That’s not journalism. That’s theft. In last week’s indictment of Julian Assange, however, we have an actual crime: one count of conspiracy to commit computer intrusion.
The indictment alleges that Assange helped his source, Chelsea Manning, attempt to de-hash a government database password in the same hypothetical scenario I laid out above. (In the true Valerie Plame case, no one was punished or even indicted for the leak itself. Only I. Lewis “Scooter” Libby was convicted, and that was for lying to federal officials. Trump did pardon him.) But imagine, if you will, the backlash to an indictment of a New York Times reporter who asked an FBI source to hack a government database—then actively advised and instructed them in the effort—in order to steal classified information about the Mueller investigation. I would be appalled. The right and left alike would be, too, I would think. That’s not journalism. That’s not good for any of us, and it’s not a good sign for America.
Luckily, journalism in America isn’t “I’ll help you steal this.” And, also luckily, legitimate journalism practices—including acquiring and publishing classified information—are indeed protected, so long as they don’t cross into computer or other crimes. The indictment of Assange, though troubling for a number of reasons, isn’t an infringement on the free press. Yet.
But for some reason, the reaction to the Assange indictment is different. People on the left and right alike are up in arms, in a weird union of civil liberties/first amendment advocates with bad-faith right-wingers who suddenly find themselves on the side of the free press.
The confusion at its root is what happens when we look at the law with partisan lenses. On the right, the outrage stems from the mix-up of what Wikileaks did during the 2016 election and the charge Assange actually faces, which dates to 2010 and involves the disclosure of military secrets. “The press that uses anonymous sources and publishes leaked classified information is the enemy of the people! Except for that alleged albino Australian rapist cowering in Ecuadoran asylum. He’s a hero, because he helped us.” (Weird that the party of national security suddenly finds itself pitted against its own national security apparatus.)
The confusion on the left stems (mainly) from misreading the indictment. Again, Assange is charged with a single count of conspiracy to commit computer intrusion. He’s not charged with publishing classified information; he’s not charged with working with a source he either knew or had good reason to believe had stolen classified information; he’s not charged with trying to cover their tracks, erase evidence of communication, and hide information from investigators. He’s charged with what amounts to a digital form of attempted larceny.
That series of acts isn’t a series of crimes, and Assange isn’t being charged for them. They’re examples of non-criminal acts that evince a conspiracy to commit the crime charged, but those journalistic practices aren’t (yet) criminalized. It’s sort of like two mob guys meeting at a restaurant to plan a money-laundering racket, then burning their correspondence about that racket. None of that is criminal in itself, but it’s evidence the pair were knowingly coordinating to commit a crime. You can’t be charged with conspiracy if you’re not conspiring to commit a crime. The crime is what makes it a criminal conspiracy, and here the DOJ says it has evidence of an actual crime.
We don’t have to look far to dislodge the partisan scales from our eyes. Just look at the other major Wikileaks case: Russiagate.
Compare Assange charges to Special Counsel Robert Mueller’s indictment of GRU agents last February, which describes identical behavior on the part of Wikileaks except for participation in the actual hack. The DOJ didn’t charge or even name Wikileaks in that indictment, because Wikileaks’ actions there weren’t crimes. They were, like it or not, journalism. Also, the DOJ also didn’t even mention Assange personally, and it’s equally important to note that in the current indictment they didn’t go after the journalism outlet—Wikileaks—they charged someone who worked at that outlet.
But Mueller’s GRU indictment actually cites several GRU interactions with Wikileaks. These include communications where Wikileaks encouraged the GRU front to get more documents, even specifying which type of information they thought would play well and when. Here’s a passage from that indictment:
Now, had Assange tried to help the Russians break into the DNC—as he’s alleged to have helped Manning do to the U.S. government—things would (I imagine) probably have turned out differently. It might also have opened Roger Stone to criminal charges in his own coordination with Wikileaks about the email dumps. However, that’s not how it played out, and the United States stopped short of infringing on press freedoms even in this high-profile (and highly politicized) investigation.
True, the Obama DOJ presumably had this option but declined to pursue similar charges, and the Trump DOJ’s departure is a major and troubling shift, especially should the DOJ add more charges and try to set new precedents for criminalizing publishing and other journalistic practices. Though this particular indictment doesn’t challenge or change any First Amendment precedents—of particular concern is the Pentagon Papers precedent, which gave press the freedom to publish classified information—it does indicate the Trump DOJ, now under Bill Barr, displays a troubling eagerness to target journalistic behavior.
We shouldn’t trust the Trump administration about anything, and that obviously applies here. But so far the DOJ hasn’t violated press protections, though it’s quite possible that after questioning Assange they’ll add to this single charge. And who knows, such questioning might also turn up new evidence of Wikileaks’ criminal involvement in the DNC hacks, though from here that seems unlikely. Still, keep a sharp eye on this story. It might soon be time for the press to put down their laptops and pick up the pitchforks.