Support The Bulwark and subscribe today.
  Join Now

Will Assange Face Charges for 2016 Election Interference? Not Likely.

Here's why.
April 16, 2019
Will Assange Face Charges for 2016 Election Interference? Not Likely.
Julian Assange gestures to the media from a police vehicle on his arrival at Westminster Magistrates court on April 11, 2019. (Photo by Jack Taylor/Getty Images)

WikiLeaks founder Julian Assange now sits in a maximum security prison in London, awaiting possible extradition to the United States to face a federal charge of conspiring to hack into a Defense Department computer in 2010.

The core charge in the indictment is that Assange “agreed to assist” Chelsea Manning “in cracking a password stored on United States Department of Defense computers.” Those computers contained highly classified documents, mostly relating to the wars in Afghanistan and Iraq, and the detainee program at Guantanamo Bay.

The DoJ’s indictment of Assange was drafted carefully to thwart an anticipated defense that Assange’s actions were protected free speech. By focusing on Assange’s participation in the underlying crime of illegally hacking into a government computer, rather than on his role in publishing the stolen documents, the government largely defanged the argument that Assange was acting as a journalist. Journalists have broad First Amendment protection for publishing information, stolen or not, but they have no constitutional protection for theft.

The government is saying that they are going after a thief, not a rogue publisher.

What the government’s indictment of Assange doesn’t say is anything about Assange’s role in Russia’s interference with the 2016 presidential election.

Assange’s organization, WikiLeaks, was at minimum an enabler of a conspiracy by Russian government actors to hack into private email accounts of the Clinton campaign, the Democratic Congressional Campaign Committee and the Democratic National Committee, steal documents from those computers, and stage releases of the stolen documents to have maximum impact on the 2016 U.S. presidential election.

What we know about that conspiracy and WikiLeaks’ role in it is largely derived from the special counsel’s July 13, 2008, indictment against 11 officers of Russia’s military intelligence agency, the GRU.

The indictment says that the Russian conspirators, using an online persona called Guccifer 2.0, transferred many of the stolen documents to “Organization 1,” now known to be WikiLeaks.

WikiLeaks and the conspirators discussed timing the releases of those documents “to heighten their impact on the 2016 presidential election.” WikiLeaks actively encouraged Guccifer to “send any new material [stolen from the DNC] here for us to review and it will have a much higher impact than what you are doing.” WikiLeaks was anxious to obtain the documents prior to the Democratic National Convention to sow “conflict between Bernie [Sanders] and Hillary.”

In July 2016, three days before the Democratic convention, the Russian conspirators sent WikiLeaks an encrypted file that “contained instructions on how to access an online archive of stolen DNC documents.” Shortly thereafter, WikiLeaks released more than 20,000 emails and “other documents stolen from the DNC network.” In the weeks before the election, WikiLeaks released “approximately thirty-three tranches of documents that had been stolen from the chairman of the Clinton Campaign,” John Podesta.

What the indictment does not say is equally as important as what it says. It does not say that WikiLeaks participated in the underlying theft of the documents stolen by the Russian conspirators. And it does not say, at least not directly, that WikiLeaks knew that the documents were stolen. Finally, it does not say that WikiLeaks knew that Guccifer 2.0 was a persona created by Russian intelligence officers.

But it comes awfully close.

Quoting a “private message” from WikiLeaks, the indictment says that WikiLeaks asked Guccifer 2.0 to “[s]end any new material [stolen from the DNC] here for us to review …” The bracketed language, “[stolen from the DNC],” is both crucial to understanding WikiLeaks’ role and highly opaque. Placing the words in brackets normally means that they are not included in the actual quotation. By putting these words in WikiLeaks’ mouth, is the government somehow trying to signal that WikiLeaks knew they were stolen, or is it merely making clear which documents they are talking about?

We don’t know.

But we do know that there is enough other information in the indictment to make it virtually certain that WikiLeaks knew that these documents were, in fact, stolen. Assange’s team was dealing with an entity, Guccifer 2.0, that had clearly gone to great lengths to conceal its identity. The documents WikiLeaks received were encrypted, so they had to be given “instructions on how to access an online archive of stolen DNC documents.”

And it would take no more than a bit of common sense to realize that WikiLeaks had to know that the documents were stolen. After all, they were coming from an entity that was clearly adverse to the owners of the documents, and meant to do them harm. Nobody else had them. Where did WikiLeaks think they came from?

At the end of the day, though, whether Assange can be criminally charged for his participation in the Russian conspiracy probably boils down to whether he participated in the underlying theft. If he didn’t, WikiLeaks’ release of the materials is likely protected by the First Amendment, even if Assange knew that the materials had been stolen by Russian intelligence officers.

The best-known case dealing with freedom of the press is the Supreme Court’s decision in New York Times Co. v. United States. In that case, the federal government tried to block the New York Times and the Washington Post from publishing the so-called Pentagon Papers, which contained classified information relating primarily to the Vietnam War.

The court, relying on the First Amendment, refused to block publication. That case, however, had little to do with the WikiLeaks situation. There, the government was trying to proactively prevent the press from publishing the documents, what is known in legal circles as “prior restraint.” There’s a special place in legal hell for prior restraint. And in that case, the documents were not “stolen.” To the contrary, the individual who leaked them, Daniel Ellsberg, had a security clearance that granted him legal access to the documents, although not permission to distribute them.

But there’s another Supreme Court case that provides a better analogy. In Bartnicki v. Vopper, a third party illegally recorded phone conversations between two individuals, and then passed along the tapes to a radio broadcaster. The broadcaster then played the tapes on the air. He was subsequently charged with violation of the state’s wiretap laws.

The court noted that the broadcaster did not participate in the interception of the phone calls, but “did know – or at least had reason to know – that the interception was unlawful.” Nevertheless, the court ruled that the broadcast of the tape was protected by the First Amendment. The court found that the information disclosed was “a matter of public interest,” and observed that “state action to punish the publication of truthful information seldom can satisfy constitutional standards.”

Bartnicki is not necessarily the last word on whether the knowing publication of unlawfully obtained materials of public interest is always protected by the First Amendment. Chief Justice Rehnquist wrote a vigorous dissent, which was joined by Justices Scalia and Thomas. There are other court decisions, and a library’s worth of scholarly writing, grappling with the complexity of balancing FirstAmendment press freedoms against other constitutionally protected interests. And who knows how today’s Supreme Court would come out on the issue.

All we can say with certainty is that in the absence of participation in the underlying theft of the materials, any charge based on the publication of the materials would face an uphill battle that may not be worth the political cost of messing with the First Amendment.

And even if the government has evidence that Assange participated in Russia’s underlying theft, it is by no means certain that the Department of Justice would bring charges.

A decision to indict Assange in connection with the 2016 election would require political calculation, not just legal analysis.

If there’s one thing Donald Trump hates more than illegal immigration and CNN, it’s the widespread belief that his election was tainted by Russian interference. Indicting Assange for that crime would breath new life into that narrative.

Does anybody believe that Attorney General Barr would let that happen?

It’s much easier for Barr is to just do nothing and wait it out.

Because there’s some time urgency to bringing additional claims against Assange.

Assange is awaiting extradition proceedings relating exclusively to the 2010 theft of classified government documents, not anything connected to the 2016 election. Assuming that the U.K. extradites Assange to the United States, the extradition will be governed by a 2003 treaty between the U.S. and the UK.

The treaty contains a provision called the “Rule of Specialty.” That rule prohibits the United States from punishing Assange for any offense other than the one for which the extradition was granted. There are some exceptions to the rule, such as offenses committed after the extradition, but they wouldn’t apply to any crimes committed in connection with the 2016 election.

So all Barr has to do is stall for whatever time it takes the U.K. to extradite Assange to the United States. At that point, he can announce sadly that his hands are tied because the extradition treaty prohibits any new charges.

Cue the crocodile tears.

Philip Rotner

Philip Rotner is a columnist whose articles appear in national publications and on his website, Philip is an attorney who has practiced for over 40 years, both in private practice and as the general counsel of a global professional services firm.  Philip’s views are his own, and do not reflect the views of any organization with which he has been associated.