Even before Thursday’s arrest by British authorities, Julian Assange was not a sympathetic character. The WikiLeaks founder had spent the last seven years in Ecuador’s embassy in London, initially taking refuge there to avoid extradition to Sweden over sexual assault allegations. (He denies any wrongdoing.) He published internal Democratic documents stolen by Russian hackers during the 2016 election. (He denies knowing the Russian government had stolen them.) And he helped amplify the conspiracy theory that Democratic National Committee staffer Seth Rich was murdered for political reasons. (Washington, D.C. police attributed Rich’s death to an armed robbery.)
But you don’t have to like Assange to be troubled by the Justice Department’s case against him—at least so far. In the indictment unsealed on Thursday, federal prosecutors laid out a somewhat threadbare case against the Australian anti-secrecy activist for his work with Chelsea Manning in 2010. Assange burst onto the international stage that year when WikiLeaks, in collaboration with news outlets around the world, published troves of classified U.S. diplomatic and military documents obtained by Manning. The federal government began building a case against Assange soon thereafter.
Press freedom advocates have long feared that Assange would face charges under the Espionage Act. Manning served seven years in prison after her court-martial under the act. Federal prosecutors also filed charges against Edward Snowden, who leaked an even larger trove on U.S. government surveillance operations in 2013. No such charges appear on Assange’s indictment, though they could be added later on. An Espionage Act conviction could result in a decades-long prison sentence for Assange instead of the maximum of five years that he currently faces.
Instead, Assange is charged with a single count of conspiracy to commit computer intrusion under the Computer Fraud and Abuse Act. The indictment alleges that he helped Manning, an Army intelligence analyst at the time, crack a password on one of the Department of Defense’s classified computer networks in the spring of 2010. Around that time, Manning downloaded tens of thousands of files about U.S. military activities in Afghanistan and Iraq, as well as a vast archive of State Department diplomatic cables. Federal prosecutors focused on the period between when Manning allegedly provided the Defense Department files to Assange and when she obtained the cables a few weeks later.
As paired down as they are, there are still some issues with the allegations. Right off the bat, the indictment defines the alleged conspiracy between Assange and Manning in uncomfortably broad strokes. It asserts that it was “part of the conspiracy” for Assange to “encourage Manning to provide information and records,” for them to “[take] measures to conceal Manning as the source of the disclosure of classified records,” for them to use a secret online chat service to “collaborate on the acquisition and dissemination of the classified records,” and for them to “[use] a special folder on a cloud drop box of WikiLeaks to transmit classified information.”
All of that might sound pretty nefarious when laid out in a federal grand jury indictment. But most of what’s described amounts to fairly routine communications between journalists and their sources, especially when reporting on national security matters. Using apps like Signal to stay in contact with sources is a staple of reporting today. Major news outlets like The New York Times and The Washington Post routinely call attention to their digital drop boxes for potential sources. Under this framework, it’s possible that top reporters who did groundbreaking work on the Russia investigation over the past two years could have faced charges for it.
What separates Assange’s actions from those of most journalists, at least in the indictment, is his alleged involvement in cracking a government password. Journalists can publish stolen and leaked documents if it’s in the public interest; they can’t break into houses and government buildings themselves to obtain them. But even the evidence laid out to support that allegation is underwhelming. The “overt acts” to support the charge are that Manning “provided Assange with part of a password” stored on military computers, and that Assange “requested more information” from her because he had “no luck so far.” The government doesn’t assert that Assange actually helped crack the password in the indictment, or that he provided Manning with anything to do it herself.
As for whether Assange encouraged Manning to commit a crime, even that claim seems dubious, based on what’s in the indictment. After Manning gave him a cache of files about the Guantanamo Bay detention facility, she told Assange that “after this upload, that’s all I’ve really have got left.” According to the indictment, Assange replied that “curious eyes never run dry.” The Justice Department cited this exchange as evidence that Assange was “actively encouraging Manning to provide more information.” Assange’s elliptical remark certainly didn’t try to dissuade Manning, but without more context, it doesn’t seem to rise to the level of active encouragement.
It’s possible, of course, that the government has more damning evidence than what it laid out Thursday. Federal prosecutors could charge Assange with other criminal acts once he’s been handed over by the British government. Manning herself has spent the last month in jail over her refusal to testify before a federal grand jury in relation to Assange’s case, suggesting that federal investigators aren’t quite finished building a case against the Australian activist. But considering the greater ramifications for American journalism this case could carry, press freedom advocates hoped prosecutors would set a higher bar.
“While the Trump administration has so far not attempted to explicitly declare the act of publishing illegal, a core part of its argument would criminalize many common journalist-source interactions that reporters rely on all the time,” Trevor Timm, the president of the Freedom of the Press Foundation, said in a statement. “Requesting more documents from a source, using an encrypted chat messenger, or trying to keep a source’s identity anonymous are not crimes; they are vital to the journalistic process.”
This approach would be worrisome in most circumstances. It’s even more alarming in an era where the president is openly hostile toward press freedom. Earlier this month, President Donald Trump wrote on Twitter that “the press” is the “enemy of the people,” extending his enmity from the “fake news” to the media as a whole. He often calls for loosening the nation’s relatively strong libel laws, which protect news outlets from bad-faith litigation by the wealthy and powerful. Attorney General Bill Barr refused to rule out prosecuting journalists for doing their jobs during his confirmation hearing in January.
Journalists aren’t immune from wrongdoing just because of their chosen profession, of course. But criminal prosecutions against them can’t run afoul of the First Amendment’s guarantee of a free press. Even the Obama administration, which crossed numerous lines in its quest to squelch government leaks, concluded that the evidence against Assange wasn’t enough to bring charges. If this is the best that the Trump administration can muster against the now-former fugitive, they might have been better off sticking with that judgment, too—no matter how contemptible they (or any in the U.S., for that matter) find Assange himself to be.