The prosecution of Julian Assange is finally over after the Australian WikiLeaks founder agreed to plead guilty to violating the U.S. Espionage Act on Monday. That’s better than the worst-case scenario—trying Assange in a U.S. court for exposing war crimes—but the case should have never gotten this far.
The shameful, years-long saga has left the U.S.’s global credibility on press freedom severely diminished. Even worse, it has put national security journalists on notice that the U.S. government stands ready and willing to criminalize their work at its discretion.
Reporters Without Borders ranked the U.S. 55th in its Press Freedom Index this year, citing the Assange case. Foreign adversaries, notably China and Russia, have regularly referenced the charges against Assange to question our moral authority to oppose their own crackdowns on free expression: Who are we to talk when our government considers obtaining and publishing government secrets–essentially the job description for investigative journalists–a felony under the Espionage Act?
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And yes, that’s what Assange was charged with. Contrary to a common misunderstanding, his indictment has nothing to do with alleged collaboration between WikiLeaks and Russia in publishing DNC emails in 2016. Nor do the Espionage Act charges have anything to do with any alleged “hacking” by Assange. But they have everything to do with his exposing war crimes in Iraq and Afghanistan back in 2010.
The Biden administration needed to settle the case to save face. Last month, the U.K. High Court allowed Assange’s appeal of his extradition to proceed, questioning whether the First Amendment would afford him adequate protection if he were tried here. A definitive ruling that the U.S. can’t be trusted to adjudicate press freedom matters would be humiliating.
But the administration had the opportunity to do more than shield itself from embarrassment. It could have proven that the president meant it when he declared that “journalism is not a crime.” It could have distinguished itself from Donald Trump, Biden’s openly anti-press electoral opponent, whose administration first indicted Assange. It could have dropped the case.
The plea agreement does not add any more prison time or punishment for Assange. It’s purely symbolic and entirely unnecessary. Its only impact will be to legitimize the criminalization of routine journalistic conduct and encourage future administrations to follow suit—including a potential second Trump administration.
Plea agreements, of course, do not create any binding legal precedent. Ninety-five percent of criminal convictions in the U.S. are secured through plea deals, not because the defendants are all guilty, but because the alternative is too risky, expensive, and exhausting. It’s hard to fault Assange for doing what he had to do to end his five-year imprisonment at Belmarsh Prison.
But legal precedent or not, plea deals can still send a message, especially in a high-profile test case for a novel and constitutionally dubious legal theory. Judges and prosecutors all over the country will read about the plea deal and feel emboldened to punish journalists for doing their jobs, whether via the Espionage Act or equally convoluted applications of state law.
Many have commented on the U.S. judiciary’s declining comprehension of, and respect for, press freedom. The Department of Justice is already testing out other alarming theories in prosecutions of journalists, including Florida journalist Tim Burke, who awaits trial for finding and publicizing Ye’s antisemitic rant to Tucker Carlson last year.
Can these same judges and prosecutors be trusted to exercise restraint in determining when future journalists cross whatever blurred line Assange supposedly overstepped?
Nobody can articulate where that line is, by the way. U.S. lawyers have suggested Assange went too far by not sufficiently redacting documents he published. But that’s arbitrary—the First Amendment does not include a redaction requirement and the Espionage Act does not exempt journalists who redact from its unconstitutional prohibitions on obtaining and disclosing defense documents. Nor does the plea agreement say anything about redaction.
Authorities will feel free to come up with their own self-serving takes on what kinds of journalism the law should deem acceptable.
It’s not as if the Biden administration doesn’t realize the potential repercussions of its stubborn insistence on standing behind Trump’s Espionage Act prosecution. When Joe Biden was vice president, the Obama administration declined to prosecute Assange, recognizing that any legal theory under which they could prosecute him could also be used against The New York Times.
Biden’s administration has been warned repeatedly by civil liberties groups, law professors, media publishers and members of Congress that prosecuting a publisher of newsworthy documents poses a “cataclysmic” threat to press freedom. It knows what it’s doing. But it apparently doesn't mind keeping investigative journalists guessing whether their next story will be the one that gets them indicted.
It’s a safe bet that during this week’s debate, President Biden will repeatedly warn voters of the dangers of Trump’s authoritarian streak. As he should. Trump has made clear his intention to weaponize federal prosecutors against his adversaries, which, of course, include the press, which he infamously deemed “the enemy of the people.”
But Biden had better hope the moderators don’t ask the obvious questions: Why, then, did your administration just go out of its way to validate that same authoritarian’s attempt to criminalize journalism? If you really think he’s such a threat to democracy and the constitution, why would you hand him the perfect weapon to decimate the First Amendment?
If they do, the Assange case could end up undermining Biden’s credibility on issues far beyond press freedom.
Seth Stern is the Director of Advocacy for Freedom of the Press Foundation and a First Amendment lawyer.
