The Trump administration is not the first to consider using the Espionage Act to prosecute those who disclose embarrassing national security information. The George W. Bush administration considered prosecuting journalists for publishing information about surveillance and other counter-terrorism activities. At the time, I co-authored an article with Michael Berry for National Review Online explaining why such prosecutions would be a bad idea (with a follow-up here).
If someone can be prosecuted for communicating classified national security information, all sorts of constitutionally protected activity would be threatened. Journalists and policy advocates routinely repeat national security information to others. It is one thing to prosecute those who, when given lawful access to such information, violate the terms and conditions upon which they were given access and leak classified information. It is quite another those to punish those who repeat such information, or even (as in the case of Assange) post it on the Web.
It is certainly possible that any such prosecution would be based upon allegations that Assange specifically encouraged Chelsea Manning or others to disclose classified information. Such allegations, if proven, might serve to distinguish Assange’s behavior from routine efforts by journalists to obtain information from their sources. On the other hand, 793(e), as written, does not seem to require prosecutors to prove such actions were undertaken, and even then, it’s likely many journalists who cover national security have encouraged their sources to obtain and leak secrets, too. Would they also be at risk?
It’s understandable why the federal government is upset with Assange and others who obtain and disseminate national security information. Such concerns are best addressed by undertaking more serious efforts to prevent such information from being leaked in the first place, not by threatening prosecution of those who publicize the information once it has been leaked. The former may help keep our nation safe. The latter is a threat to our liberties.