It’s an argument that probably will resurface if Julian Assange, facing prosecution in the same courthouse for publishing classified information, is ever extradited. The government rarely prosecuted leakers until President Barack Obama’s tenure, and the Trump administration is the first president to prosecute the publisher of classified information along with the leaker.
Prosecutors pushed back in their own motion Monday, saying that Hale signed nondisclosure agreements that made the law clear.
“Hale expressly waived in writing his right to disclose the national security information he obtained while in his government position,” Assistant U.S. Attorney Alexander Berrang wrote.
Whether Congress intended the Espionage Act to cover leaks when the law was drafted during World War I, Berrang says, “may be interesting thought exercises but are irrelevant to the case at hand.”
He also called it “dubious” to suggest there should be any legal distinction between leakers and spies.
“While spies typically pass classified national defense information to a specific foreign government, leakers, through the internet, distribute such information without authorization to the entire world,” prosecutors wrote. “Such broad distribution of unauthorized disclosures may actually amplify the potential damage to the national security in that every country gains access to the compromised intelligence.”
Hale “still can publicly criticize the government or report allegations of waste, fraud, and abuse” without exposing classified information, the prosecutors say, which is “categorically outside the First Amendment.”
The government notes that the U.S. Court of Appeals for the 4th Circuit rejected a First Amendment challenge to the Espionage Act statute in 1988; the defense maintains that the landscape of leak prosecutions is so different now that the decision does not apply.
In their own filing Monday, Hale’s attorneys argue that he should be able to challenge whether the documents in question were truly national defense information and properly classified. He may argue at trial that he “intentionally selected any documents he obtained to include only those that he believed were relevant to public discourse and not potentially damaging to national security,” and that “his intentions were purely to inform the public of information relevant to public discourse — and not to profit . . . or to harm the United States.”
They reference recent news that the White House has been moving reports on President Trump’s phone calls with foreign leaders to a highly classified computer system.
“The government could classify information, improperly, solely to protect the Executive Branch from embarrassment, and criminalize any attempt by the press to write about the substance of its obviously improper classification determination,” they wrote.