In dot connecting mode — This week Julian Assange was indicted on violating 17 counts of the Espionage Act for his role in publishing classified State Department and other files sent to him by Chelsea Manning. Whatever one might thing of Assange, this is worrisome because it touches on an important privilege of news media, which is the ability to publish classified informatioin received as a third party that the American people need to know.
Consider, for example, the Pentagon Papers. Daniel Ellsberg leaked the top-secret study of how the U.S. had gotten itself into the Vietnam War to the New York Times in 1971, and the Times decided to publish it in segments. After the first segment came oout the Nixon Administration sought a court order barring the paper from publishing the rest of it.
According to Wikipedia,
Section 793 of the Espionage Act was cited by Attorney General John N. Mitchell as cause for the United States to bar further publication of stories based upon the Pentagon Papers. The statute was spread over three pages of the United States Code Annotated and the only part that appeared to apply to the Times was 793(e), which made it criminal for:
Whoever having unauthorized possession of, access to, or control over any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted, or attempts to communicate, deliver, transmit or cause to be communicated, delivered, or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it to the officer or employee of the United States entitled to receive it [shall be fined under this title or imprisoned not more than ten years, or both]. 
A second lawsuit was brought against the Washington Post after that paper began publishing portions of the Pentagon Papers also. The Supreme Court heard both cases and decided the newspapers had a right under the First Amendment to publish the study. Very simply, the Court decided that the government did not prove that publication of the Pentagon Papers was actually detrimental to national security.
The precedent here, I believe, is that while a media outlet may not have absolute discretion to publish classified information that falls into its lap — if the information really is critical to national security, and if publishing it could bring harm to someone, that might still be a violation of the Espionage Act. But if the government is just sitting on something because it would be emarassing to elected officials, and this something falls into the hands of news media, its publication is protected speech.
But now the Trump Administration has swooped in to indict Julian Assange — rather ungrateful of it, I think — for publishing the information given him by Chelsea Manning. This all happened in 2010, and while the Obama Administration prosecuted Manning it chose not to bring charges against Assange.
But now the Trump Justice Department does want to prosecute Assange under the Espionage Act, saying that Assange is not a journalist. Well, he isn’t, but that shouldn’t matter.
Assange is being charged under the Espionage Act, a law passed during World War I to punish spies and traitors. But in recent years, the law increasingly has been used against government employees who leak classified information to the media. The Obama administration brought eight prosecutions for media leaks — more than all previous administrations combined — and the Trump administration has upped the ante, bringing seven prosecutions in the space of two years. Alarmingly, many of the defendants have been whistleblowers: They disclosed information indicating waste, fraud or abuse on the part of the government. National Security Agency employee Thomas Drake, for instance, was charged with disclosing information about an illegal N.S.A. surveillance program to a Baltimore Sun reporter.
Nonetheless, until now, the Justice Department distinguished between government employees who leak classified information (deemed prosecutable), and outlets that publish it (considered to have First Amendment protection). The Obama administration flirted with erasing that line: In court documents, it described a Fox News chief Washington correspondent, James Rosen, as “an aider, abettor and/or co-conspirator” in an Espionage Act case. (Rosen has since left Fox.) And the administration reportedly considered bringing charges against Assange. But ultimately, Obama’s Justice Department decided that prosecuting publishers of leaked information would be a bridge too far.
That was the right decision. Although the Espionage Act does not recognize a line between leaker and publisher, the First Amendment, as interpreted by the courts, does. The Supreme Court has long held that government employees may be required to relinquish some free-speech rights as a condition of their employment. Officials with access to classified information sign nondisclosure agreements in which they agree to be subject to criminal penalties for leaking. Publishers, obviously, sign no such waivers. While the Supreme Court has not directly addressed whether they can be prosecuted for publishing classified information (because no such prosecution has previously occurred), it has held that the government may not enjoin a newspaper from publishing information based solely on government claims of national security harms.
Now, why would the Trump Administration give a hoo haw about the documents published by Assange back in 2010? Here’s some speculation — are they doing this to send a warning to U.S. media outlets about publishing classified documents that might embarrass Donald Trump?
Consider that they pulled this trick just before Trump gave Attorney General/Trump consigliere William Barr carte blanche to comb through and declassify anything he wants to publish to make Trump look good. What would happen if the Washington Post received classfied files pointing to clear Trump corruptions? What would happen if someone slipped a thumb drive to a journalist containing the unredacted Mueller Report with all underlying evidence? And a media outlet chose to publish it?
Under the Pentagon Papers precedent, probably the media outlet that published those files would not face charges, assuming the documents didn’t compromise any ongoing intelligence operations. But the Trump Justice Department seems to be looking to change the precedent. Otherwise, why are they bothering with Assange?
There is also a Russian connection, naturally. Josh Marshall wrote yesterday,
This level of power basically gives Barr a whip hand over the entire Intelligence Community. And he seems to want to get his hands on the Russia desks especially. As the Times notes, “Mr. Barr wanted to know more about what foreign assets the C.I.A. had in Russia in 2016 and what those informants were telling the agency about how President Vladimir V. Putin of Russia sought to meddle in the 2016 election.” These are likely among the most closely held secrets the US government has. They will all but certainly be communicated directly to the President.
And from there to Trump’s good buddy Vladimir Putin?
Current and former intgelligence officials are horrified at Barr’s newfound privilege, saying that lives are on the line. It puts Barr in the position of weaponizing the Justice Department against the FBI and other intelligence agencies.
I listened Thursday to President Trump, after a reporter reminded him that the treason of which he’d been accusing his many adversaries is an actual crime punishable by death, and he merely nodded. When asked who might suffer that penalty, he named the former head of the FBI, his ex-deputy, and “people probably higher than that.” There aren’t too many people higher than that.
Hours later, that dystopian rhetoric began transforming into authoritarian reality. Trump signed a directive allowing attorney general William Barr broad, unprecedented powers to conduct a review of the intelligence community’s investigation into the 2016 Trump campaign, ordering the CIA and the other 15 federal intelligence agencies to essentially to give Barr everything he needs. Whatever Barr wants declassified, he’ll declassify — which we can anticipate, given our experience with the Mueller report, to be a nightmare of misinformation tailored to the president’s narrative.
It is carte blanche for his attack dog to comb through a mountain of intelligence and craft a story to punish whomever Trump wants punished. Without any restraints, we can expect mockeries of justice unlike things we’ve seen since, well, trials of police officers for killing black people. It will almost certainly be disgraceful. Trump lackey Corey Lewandowski already was on the airwaves Friday alleging that former Vice President (and potential general election rival) Joe Biden was behind the Steele dossier and that Comey, McCabe and others would all be on trial by “March or April of the next year.”
I am honestly frightened for this country.