An obscure sex-crime case may have just revealed a groundbreaking moment for the intersecting worlds of press freedom, espionage, and the Trump-Russia case: sealed federal criminal charges against WikiLeaks’ Julian Assange.
An August filing by the Justice Department in a case involving a Washington, D.C.-area man, Seitu Sulayman Kokayi, accidentally names the founder of the anti-secrecy group in two paragraphs, reporting that a federal criminal complaint has been lodged against him in secrecy—a development long feared by Assange and his allies.
The Justice Department conceded to The Daily Beast and other outlets that Assange’s name was in the document as a result of an error but answered no further questions about the apparent charges against Assange.
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The slip-up was first spotted by Seamus Hughes, a terrorism analyst at George Washington University who was closely following the case and flagged the passage on Twitter:
On Aug. 22, Assistant U.S. Attorney Kellen S. Dwyer filed a motion to temporarily seal Kokayi’s charges pending his arrest, which occurred the next day, Aug. 23.
At first, Dwyer’s filing understandably argues that disclosure would jeopardize Kokayi’s arrest. It proceeds to argue that redacting parts of the document would be insufficient to mitigate the potential harm. But then the attorney makes an accidental declaration.
“Another procedure short of sealing will not adequately protect the needs of law enforcement at this time because, due to the sophistication of the defendant and the publicity surrounding the case, no other procedure is likely to keep confidential the fact that Assange has been charged,” Dwyer wrote.
Kokayi is not elsewhere described as a particularly sophisticated defendant, and his case received no publicity. But the description fits Assange’s circumstances perfectly.
A second reference to Assange includes even more details that apply to the fugitive leak master, and not to Kokayi. “The complaint, supporting affidavit, and arrest warrant, as well as this motion and the proposed order, would need to remain sealed until Assange is arrested in connection with the charges in the criminal complaint and can therefore no longer evade or avoid arrest and extradition in this matter.”
Kokayi was arrested in Virginia and did not need be extradited. Assange, in contrast, would have to be extradited from the U.K. to face U.S. charges.
“It seems possible or even likely that someone cut and pasted from a prior motion to seal involving a defendant named Assange,” said Barbara McQuade, the former U.S. Attorney for the Eastern District of Michigan. “I know of only one Assange facing potential charges.”
“It could be a [prosecutor] or support staff member who prepared the document, since a sealing order is sort of a boilerplate filing,” said McQuade.
Dwyer works out of the U.S. Attorney’s Office in Alexandria, Virginia, and is not part of special counsel Robert Mueller’s team.
A Justice Department spokesperson, Joshua Stueve, told The Daily Beast, “The court filing was made in error. That was not the intended name for this filing.” Asked repeatedly if Assange had been indicted and if the slip-up had jeopardized any prosecution of a man who has lived for years in Ecuador’s London embassy, Stueve said he had no further comment.
The Washington Post, citing anonymous sources, reported late Thursday that “what Dwyer was disclosing was true, but unintentional.”
Barry Pollack, an attorney for Assange, told the Post he did not know if his client had been charged. “The only thing more irresponsible than charging a person for publishing truthful information would be to put in a public filing information that clearly was not intended for the public and without any notice to Mr. Assange,” he said.
“The notion that the federal criminal charges could be brought based on the publication of truthful information is an incredibly dangerous precedent to set.”
A spokesman for Mueller declined to comment.
The Wall Street Journal first reported Thursday that the Justice Department was preparing to indict Assange.
In an interview with the Journal, John Demers, who runs the Justice Department’s national-security division, said about possibly prosecuting Assange: “On that, I’ll just say, ‘We’ll see.’”
An indictment of Assange, whom Mueller has portrayed in his own indictments as a cat’s paw of Russian intelligence, would immediately draw worldwide attention.
Since Assange disclosed hundreds of thousands of tactical military reports from Iraq and Afghanistan and cables from U.S. diplomats worldwide in 2010, press-freedom advocates have warned that a U.S. government move against him for fundamentally journalistic activity—publishing documents in the public interest—would be illegitimate and set a fearsome precedent.
Yet Assange’s irascible personal behavior and accusations of sexual assault by two women in Sweden wore away his store of goodwill from many advocates‚ even before WikiLeaks published embarrassing information from leading Democrats purloined by Russian intelligence and surreptitiously cultivated ties to the Trump campaign that had nothing to do with its ostensible anti-secrecy mandate.
Still, for eight years, no government effort at investigating Assange has yielded any charges. Numerous reports over the years have claimed that Justice Department attorneys have found no evidence or legal theory sufficient to indict WikiLeaks but narrow enough to avoid the specter of criminalizing legitimate journalism or other First Amendment-protected activity.
Should that have recently changed and Assange been indicted, Dwyer’s ominous reference gave no indication as to the pivotal question of what Assange is accused of doing. No one at the Justice Department or FBI responded to The Daily Beast’s repeated inquiries on the subject.
“Any prosecution of Mr. Assange for WikiLeaks’ publishing operations would be unprecedented and unconstitutional, and would open the door to criminal investigations of other news organizations,” said Ben Wizner, a senior attorney with the ACLU, who also represents the National Security Agency whistleblower Edward Snowden.
“Moreover, prosecuting a foreign publisher for violating U.S. secrecy laws would set an especially dangerous precedent for U.S. journalists, who routinely violate foreign secrecy laws to deliver information vital to the public’s interest.”
