Late Thursday, The Washington Post reported that the Department of Justice is reconsidering whether to file charges against Wikileaks and its founder, Julian Assange, for publishing classified government documents.
Potential charges against Assange and other members of Wikileaks could include conspiracy, theft of government property, and charges under the Espionage Act, according to the Post.
Any prosecution of Wikileaks could have broad consequences for more mainstream media outlets, according to experts who spoke with ThinkProgress. And while there are legal precedents to protect journalists, the law is far from settled.
In an interview with CNN on Friday, Attorney General Jeff Sessions dodged a question about whether prosecuting Wikileaks would put mainstream media outlets at risk.
President Donald Trump appeared to lend tacit support to the idea of prosecuting Assange during an interview with the Associated Press in the Oval Office on Friday.
“I am not involved in that decision,” Trump said when asked if it should be a priority to arrest Assange, “but if Jeff Sessions wants to do it, it’s OK with me.”
The Obama administration considered bringing charges against Wikileaks, according to The Washington Post, but decided against it because of what officials called “the New York Times problem” — that it would be impossible to charge the organization without opening the door to prosecuting journalists.
Charging Wikileaks could have a major impact on U.S. media outlets from Fox New to The New York Times, which regularly publish classified information leaked by government sources, according to Jeffrey Pyle, a partner at the Boston firm Prince Lobel who has represented media outlets in First Amendment and related cases.
“If this is true … this could be a very, very grave threat to the practice of news reporting generally,” Pyle told ThinkProgress.
The potential charges appear to center around two sets of documents. In 2010 and 2011, Wikileaks published hundreds of thousands of diplomatic cables and Iraq and Afghanistan war documents—including a video Wikileaks says shows an illegal attack on reporters and rescuers by the U.S. military in Iraq. This year, the site began to publish classified details on the CIA’s hacking program.
Media outlets often rely on a 2001 case, Bartnicki v. Vopper, for protection when they publish information that’s obtained illegally. In that case, the Supreme Court ruled 6–3 that a radio host in Pennsylvania couldn’t be prosecuted for publishing an illegal recording of a conversation between union employees.
The law generally protects journalists from prosecution for cultivating sources and reporting on classified information, according to Pyle.
“The notion that cultivating a source could lead to conspiracy liability is completely foreign to U.S. law,” he said.
But the defendant in the Bartnicki case received the illegal recording through the mail from an anonymous source. Over the past month, U.S. officials have alleged that Wikileaks actively colluded with its sources to steal classified government documents.
“WikiLeaks walks like a hostile intelligence service and talks like a hostile intelligence service,” CIA Director Mike Pompeo said during a speech at the Center for Strategic and International Studies earlier this month. “It has encouraged its followers to find jobs at CIA in order to obtain intelligence. It directed Chelsea Manning in her theft of specific secret information.”
Those allegations could open Wikileaks up to prosecution despite the precedent set by Bartnicki v. Vopper, according to Jonathan Albano, a partner at Boston law firm Morgan Lewis and longtime outside counsel for The Boston Globe.
The government could argue that Bartnicki’s protections don’t apply, Albano said, because Wikileaks knew about a particular leak in advance—or even directed it. The government could also argue that national security concerns trump the public interest standard Bartnicki set.
“To be clear, I’m not supporting those arguments,” Albano said. “I am saying that Bartnicki does not answer all of the difficult questions that would be raised by a Wikileaks prosecution.”
Then there’s the Espionage Act, which the Obama administration used to prosecute more leaks than all previous administrations combined. It makes it a crime to retain or communicate “any document … relating to the national defense,” regardless of intent and with no specific exemptions for whistleblowers or journalists.
In the 1971 case New York Times Co. v. United States, the Supreme Court ruled that the government could not keep The New York Times from publishing a classified history of the war in Vietnam known as the Pentagon Papers. But in his concurring opinion, Justices Byron White, joined by Justice Potter Stewart, wrote that he “would have no difficulty in sustaining convictions” if newspapers faced criminal prosecution after publication.
“Section 793(e) of the Espionage Act has been described as ‘pretty much one of the scariest statutes around,’” Albano said.
While pursuing Espionage Act charges against State Department leaker Stephen Kim in 2011, the Justice Department referred to Fox News reporter James Rosen in a court filing as “an aider, abettor and/or co-conspirator.”
Former Attorney General Eric Holder later called that comment his one regret while in office. The Department of Justice strengthened its rules for investigating leaks to journalists in 2015 amid criticism from media organizations.
Whether or not the Trump administration decides to keep those rules in place, pursuing Wikileaks would go far beyond the Obama-era crackdown on leaks, according to Pyle.
“Going after journalists under the Espionage Act or [for] conspiring to steal government property is completely unlike anything President Obama or Eric Holder ever contemplated,” he said.