WikiLeaks founder Julian Assange's indictment under the Espionage Act is so controversial that at least two of his prosecutors argued against the decision to indict. Significantly, we know this because it was leaked to news media.
Leaks to the media are as much of a Washington routine as the annual National Cherry Blossom Festival. So are internal debates between members of the same prosecution team.
But the Assange dispute is a higher stakes argument than most. He is the first publisher in any medium to face criminal prosecution under the 1917 Espionage Act for publishing classified information, even though newspapers have routinely published government secrets that have been leaked to them, including some by WikiLeaks.
In this case, an enormous trove of classified documents was provided to WikiLeaks in 2010 by Chelsea Manning, a U.S. Army intelligence analyst who later went to prison for the leaks.
Until now, the Espionage Act has been used to prosecute spies and employees with classified clearances who violated their oath by leaking to the press. But federal prosecutors have avoided using it to prosecute journalists for receiving or publishing those leaks.
Contrary to popular belief, they were not doing this simply to be nice to the media. Although judges have sent to jail for contempt some reporters who refused to reveal their sources, prosecution under the Espionage Act raises the ante by treating journalists the same as spies.
In other words, prosecutors could be stepping over the line into the criminalization of journalism, a direct violation of what most of us consider to be a First Amendment right.
I say "most of us" because this argument has never been fully tested in the courts. As one legal scholar, Steve Vladeck, a University of Texas law professor and specialist in national security law, said in a 2017 interview with Just Security, "the statute is old and ambiguous," produced in the political heat of World War I Washington "and not drafted with the kind of specificity that usually characterizes speech-restricting statutes that survive constitutional challenge."
In his 2010 testimony about WikiLeaks before the House Judiciary Committee, Vladeck suggested that the law should be fine-tuned, for example, to limit prosecutions to those who specifically intend their disclosure to harm national security or benefit a foreign power.
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But under existing law, President Donald Trump's Justice Department has gone where President Barack Obama and Eric Holder, his attorney general, decided after long consideration and internal debate to avoid.
And Obama and Holder, let us not forget, were no softies in pursuing leaks. Obama's Justice Department subpoenaed the phone records of AP journalists. They went after Fox News reporter James Rosen, naming him as a "co-conspirator" in a leak about North Korea's nuclear program. They picked up where the George W. Bush administration left off in pursuing The New York Times' James Risen's source in the espionage case of former CIA employee Jeffrey Sterling.
But the Obama administration pulled back in his second term after Holder held meetings with press freedom organizations, including the Committee to Protect Journalists, of which I'm a board member.
Holder assured us at the time that he had no intention to lock up journalists. The Trump administration appears to be leaning in the other direction in the Assange case.
"The department takes seriously the role of journalists in our democracy," John Demers, the head of the Justice Department's National Security Division, told reporters when he announced the indictment May 23. "But Julian Assange is no journalist. This is made plain by the totality of his conduct as alleged in the indictment."
But who is to decide these days who's a journalist and who isn't? Demers, like many others, judges Assange's "conduct" to be unbecoming of a good journalist. It may not be his intention, but do we want government officials to tell us who is and isn't a journalist, as they do in countries that license journalists?
Having participated in numerous discussions on this topic since the rise of the internet age in the 1990s, I hear the question of who's a journalist in the same way that a Supreme Court justice defined obscenity: I know it when I see it. I see Assange as a journalist, although an often disturbingly and even dangerously freewheeling example of the breed.
If the Trump administration continues its pursuit of the Australia-born Assange under a law intended to capture and punish spies, it could ultimately set a dangerous precedent to be settled by the Supreme Court, where the outcome would be unpredictable. And prosecutors similarly should be concerned about pitting press freedom against government accountability in a bruising constitutional battle.
Assange may fall way short of being a model journalist, but pursuing him as a spy only makes bad matters worse.