In a February 8, 2021, article appearing in Just Security, Jameel Jaffer argues that “a successful prosecution of [Julian] Assange would have far-reaching implications both for national security journalists and for the news organizations that publish their work.” I suspect he is correct; so, looking to capitalize on Donald Trump’s recognized antipathy for the mainstream media and his administration’s noted difficulty with the concept of truth, Jaffer argues that the prosecution of Assange must be abandoned to remedy the Trump administration’s assault on a free press. Upon closer inspection, however, it would be injudiciously premature of the Biden administration to summarily jettison the Assange case.
Jaffer is a noted free press advocate, and his views are unsurprising and largely reflect those expressed by media advocates since the government’s May 2019 and June 2020 superseding indictments expanded the charges against Assange to include multiple violations of the Espionage Act. But those who believe that the Assange indictment reflects the Trump administration’s broader hostility towards the media choose to ignore that Assange’s wrongful acquisition and exposure of U.S. national security information fall squarely within the ambit of U.S. espionage laws. The invocation of the Espionage Act in response to Assange’s inculpatory conduct, however, reverberated throughout the Fourth Estate precisely because, as Jaffer and other like-minded media defenders have acknowledged, that conduct “focuses principally on activity that national security journalists engage in ‘routinely and as a necessary part of their work’—cultivating sources, communicating with them confidentially, soliciting information from them, protecting their identities from disclosure, and publishing classified information.”
According due regard for such viewpoints, the Assange prosecution does not portend the end of the Republic; although, for those journalists who have increasingly solicited, received, and published classified information with relative impunity, Assange’s indictment may signal that the government no longer considers the media immune from the consequences that the espionage statutes, at least on their face, contemplate for such conduct.