The Constitutional Rubicon of an Assange Prosecution
By Elizabeth Goitein Tuesday, May 9, 2017
"If you were tuning in and out of FBI Director James Comey’s hearing before the House Intelligence Committee last Wednesday, you probably got an earful about Comey’s public statements on Clinton’s use of a private e-mail server, and you may have heard his staunch defense of Section 702 of FISA. But you might have missed the moment in which Comey and Senator Ben Sasse (R-NE) threatened to topple one of the longstanding pillars of journalistic freedom.
That moment came when Sasse asked Comey why Julian Assange has not been charged with a crime in connection with WikiLeaks’ publication of classified information. (Sasse was at it again during yesterday’s hearing on the Russia investigation, quizzing former DNI Clapper about Assange’s actions.) After refusing to answer whether charges were pending, Comey effectively confirmed that they were: “He hasn’t been apprehended because he’s inside the Ecuadorian embassy in London.” He also said that “WikiLeaks is an important focus of our attention.”
No one has ever been prosecuted for publishing classified information obtained through a leak. Although some parts of the Espionage Act would appear, on their face, to allow prosecution in such cases, Comey acknowledged that “the Department of Justice’s view has been [that] newsgathering and legitimate news reporting is not covered, is not going to be investigated or prosecuted as a criminal act.” The Department to date has drawn a clear line between government officials who leak classified information, and media outlets that publish it. “Our focus is and should be on the leakers, not those [who] are obtaining it as part of legitimate newsgathering.”
One might posit a distinction between those who passively receive classified information and those who actively solicit leaks, as WikiLeaks is reported to do. (Obama’s Department of Justice flirted with that approach: in an affidavit seeking to obtain e-mails between Fox reporter James Rosen and a State Department source who was under investigation for leaking classified information, the Department accused Rosen of conspiring to violate the Espionage Act.) But Comey was not making that distinction. Senator Sasse asked him whether “American journalists [who] court and solicit [classified] information” have violated the law, and Comey responded that the Department of Justice would not prosecute such activity.
So why, in Comey’s mind, is it permissible to bring charges against Assange? He explained his reasoning as follows..."
With links: https://www.justsecurity.org/40672/constitutional-rubicon-assange-prosecutio...
Elizabeth Goitein co-directs the Brennan Center for Justice’s Liberty and National Security Program. Before joining the Brennan Center, Ms. Goitein served as counsel to Sen. Russ Feingold and as a trial attorney in the Federal Programs Branch of the Civil Division of the Department of Justice.