The Trump Justice Department inadvertently revealed in a court filing that it has charged Julian Assange in a sealed indictment. The disclosure occurred through a remarkably amateurish cutting-and-pasting error in which prosecutors unintentionally used secret language from Assange’s sealed charges in a document filed in an unrelated case. Although the document does not specify which charges have been filed against Assange, the Wall Street Journal reported that “they may involve the Espionage Act, which criminalizes the disclosure of national defense-related information.”
Over the last two years, journalists and others have melodramatically claimed that press freedoms were being assaulted by the Trump administration due to trivial acts such as the President spouting adolescent insults on Twitter at Chuck Todd and Wolf Blitzer or banning Jim Acosta from White House press conferences due to his refusal to stop preening for a few minutes so as to allow other journalists to ask questions. Meanwhile, actual and real threats to press freedoms that began with the Obama DOJ and have escalated with the Trump DOJ – such as aggressive attempts to unearth and prosecute sources – have gone largely ignored if not applauded.
But prosecuting Assange and/or WikiLeaks for publishing classified documents would be in an entirely different universe of press freedom threats. Reporting on the secret acts of government officials or powerful financial actors – including by publishing documents taken without authorization – is at the core of investigative journalism. From the Pentagon Papers to the Panama Papers to the Snowden disclosures to publication of Trump’s tax returns to the Iraq and Afghanistan war logs, some of the most important journalism over the last several decades has occurred because it is legal and constitutional to publish secret documents even if the sources of those documents obtained them through illicit or even illegal means.
The Obama DOJ – despite launching notoriously aggressive attacks on press freedoms – recognized this critical principle when it came to WikiLeaks. It spent years exploring whether it could criminally charge Assange and WikiLeaks for publishing classified information. It ultimately decided it would not do so, and could not do so, consistent with the press freedom guarantee of the First Amendment. After all, the Obama DOJ concluded,