As a presidential candidate, Donald Trump loved WikiLeaks, Julian Assange’s renegade publishing outfit. “This WikiLeaks stuff is unbelievable,” he said at an October of 2016 rally in Florida; “this WikiLeaks is like a treasure trove,” he fawned in Michigan. His seemingly boundless admiration for Assange’s organization amounted to over 160 mentions of the site throughout campaign season. “Boy, I love reading those WikiLeaks,” he told a crowd in Ohio.
For a time, it could have been argued that the president was one of Assange’s most powerful defenders—he even praised Assange for taking on the “very dishonest” American press that Trump so reviles. But that period of admiration came to a decided halt on Thursday, as Assange was escorted out of the Ecuadorian embassy in London by British police, alongside the announcement that the United States government had charged the WikiLeaks publisher with conspiring to hack a government computer as part of the 2010 Chelsea Manning revelations.
Trump’s erratic fondness for WikiLeaks has stood in stark contrast to his outward antagonism toward the mainstream news media. His broadsides against the press have become a central part of his messaging as president. According to research done by the Committee to Protect Journalists, a full 11 percent of his tweets since taking office have “contained negative rhetoric about the press.” He has popularized the term “fake news,” and on multiple occasions referred to the news media as an “opposition party” and “the enemy of the people.” And while these attacks are of a piece with Trump’s political style, Thursday’s indictment of Assange had as much to do with precedents set by the Obama administration as it did with Trump’s anti-press zeal.
While some politicians and commentators have come to the defense of the press in the face of Trump’s rhetorical assaults, few have done the same for Assange in the wake of Thursday’s indictment. Perhaps because of Assange’s sexual assault allegations, his objectionably heterodox politics, or his perceived role in tipping the scales of the 2016 election, Assange elicited little sympathy from politicians and the media alike following the indictment from the Trump administration. Even Trump himself had nothing to say on Assange’s behalf. “I know nothing about WikiLeaks,” he told reporters at the White House on Thursday.
No matter what one thinks of Assange, the recently unsealed indictment raises a number of grave concerns about journalistic and press freedoms in the U.S. The indictment carries just a single charge: conspiracy to commit computer intrusion, a hacking-related violation of the Computer Fraud and Abuse Act, which carries a penalty of up to five years in prison. That might seem narrow and specific. But a closer examination of the language of the indictment suggests troubling ramifications for First Amendment press freedoms in the future.
“The indictment includes many more allegations that reach more broadly into typical journalistic practices, including communication with a source, encouraging a source to share information, and protecting a source,” says Carrie DeCell, staff attorney at the Knight First Amendment Institute. “Those raise serious First Amendment concerns.”
In fact, the “Manners and Means of the Conspiracy” portion of the indictment enumerates a raft of standard journalistic procedures whose inclusion has caused multiple civil liberties groups to condemn the Department of Justice for overreach. Among Assange’s supposedly conspiratorial acts are the use of an encrypted chat service called Jabber and “a special folder of a drop box.” And while the indictment doesn’t charge Assange with espionage, it does make mention of the Espionage Act, a possible indication that subsequent charges may be on the way, according to DeCell.
“So far they haven’t said the act of publishing is illegal, but this [indictment] says that parts of the reporting process may potentially be criminal or criminalized,” says Trevor Timm, executive director of the Freedom of the Press Foundation.
“If the government is trying to focus exclusively on the criminal hacking violation and not wade into the territory of protected First Amendment activity, you would’ve expected a more narrowly worded indictment,” DeCell says.
The indictment’s reference to the Espionage Act is notable because it was a favored provision of the Obama administration in its unprecedented crackdown on press freedom. In eight years at the helm, the Obama administration prosecuted nine cases involving whistleblowers and leakers, compared with only three such prosecutions by all previous administrations combined. Drawing liberally on the Espionage Act, an arcane law used to prosecute spies and communist sympathizers during World War I, the Department of Justice under President Barack Obama prosecuted leakers while spying on reporters and monitoring their phone records. In the high-profile case of New York Times journalist James Risen, they even attempted to compel the revelation of confidential sources. In fact, Thursday’s indictment against Assange relied exclusively on information from the 2010 trial of Chelsea Manning, who was famously sentenced to 35 years in prison for leaking compromising information about American troops killing journalists in Iraq, among other things. The Trump administration merely made use of details extracted by Obama’s Department of Justice, bringing a case the Obama administration had considered bringing for almost six years.
A certain degree of incoherence can be expected from the policies of Trump, but his administration’s attitude toward Assange, and the case it’s bringing against him, are entirely consistent with the actions of Trump’s predecessor, who, despite having a reputation for speaking favorably about the press, was actually “the worst presidency since [Richard] Nixon toward press freedoms,” Timm says.
In many ways, the Trump administration has merely picked up where the Obama administration left off. According to Timm, the Assange indictment was actually something the Obama administration had looked into, but ultimately decided against, concerned that pursuing it would infringe on core press freedoms. That same thing happened in the case of Risen, who ultimately avoided prosecution after winning a seven-year court battle attempting to force him to testify.
Yet the Trump administration may yet be raising the stakes beyond what we’ve seen previously. So far, his administration is in the process of prosecuting at least five leakers, putting him on pace to break the Obama administration’s record. Manning has been returned to jail after having her sentence commuted by Obama in 2017. And while the sitting president’s bluster on Twitter about the press has received most of the headlines, this latest indictment means that there’s now “a much more clear and present threat to the actual rights of journalists,” Timm says. “They are taking a step beyond what the Obama administration has done, building off of it, which is an unprecedented move.”
The American Civil Liberties Union, the Committee to Protect Journalists, Reporters Without Borders, and other digital rights groups are warning that this case could be a launchpad for Trump and his administration to initiate a broader campaign against journalists: to begin to prosecute his avowed opposition of both leakers and the press and to fulfill his oft-repeated promise to revisit Department of Justice guidelines about protection of news media. “Those allegations are very troubling,” DeCell says.
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