The internal Justice Department debate over how, or whether, to prosecute Assange stretched back to the Obama administration, which ultimately decided that such charges were a bad idea but did not formally close the case.
The case was dormant when the Trump administration began, but in 2017, Attorney General Jeff Sessions, eager to demonstrate his zeal for pursuing anti-leak investigations, urged the U.S. Attorney for the Eastern District of Virginia to take a second look at prosecuting Assange.
In a sign of how seriously they took their task, one of the assistant U.S. attorneys asked to evaluate the case was James Trump, an aggressive veteran prosecutor with experience in intelligence leak matters.
James Trump was part of the team that won criminal convictions in 2015 against former CIA officer Jeffrey Sterling, who was charged with leaking classified information to journalist James Risen. Prosecutors in that case had taken the dramatic step of seeking to compel Risen to reveal his source in court. The prosecution team in that case wanted to jail Risen until he cooperated with investigators, but that plan was scuttled by then-Attorney General Eric H. Holder Jr., according to people familiar with the matter who, like others, spoke on the condition of anonymity to discuss internal deliberations.
When it came to Assange, James Trump was concerned about pursuing a prosecution that was so susceptible to First Amendment and other complicated legal and factual challenges, the people familiar with the matter said.
Another prosecutor, Daniel Grooms, also disagreed with charging Assange, according to the people familiar with the matter. At the time, Grooms served as criminal chief in the U.S. Attorney’s office that was handling the case.
Prosecutors debated the case internally for months, with James Trump and Grooms advocating against Espionage Act charges, the people said. By the time prosecutors actually charged Assange, James Trump had offered his opinion and was no longer part of the discussions, and Grooms left the Justice Department last month for unrelated reasons, these people said.
A Justice Department official said James Trump, who was not part of the original investigative team, offered to remain on board in whatever capacity his supervisors wanted after delivering his opinion. It was determined he had significant other case work and the team could proceed without his assistance, the official said.
It is not uncommon for prosecutors to internally debate or disagree about whether a particular case merits criminal charges; in the Assange case, however, the disagreement involved major questions about constitutional rights.
Grooms declined to comment; James Trump referred a reporter to Joshua Stueve, a spokesman for the U.S. attorney’s office in Alexandria, Va., who said in a statement, “We do not respond to anonymously sourced statements. Department of Justice policy prohibits the unauthorized disclosure of non-public, sensitive information.”
Part of the concern among Justice Department veterans was that prosecutors had looked at the same evidence for years during the Obama administration and determined such charges were a bad idea, in large part because Assange’s conduct was too similar to that of reporters at established news organizations.
People familiar with the Assange case said that the Justice Department did not have significant evidence or facts beyond what the Obama-era officials had when they reviewed the case.
On Thursday, senior Justice Department officials announced an 18-count indictment against Assange, accusing him of conspiring with former Army Pfc. Chelsea Manning in 2010 to obtain and disseminate secret government documents. The charges alarmed First Amendment experts, who called them a threat to press freedoms.
Assange, 47, has spent years in the Ecuadoran Embassy in London, but after his asylum was revoked, British police arrested him last month and U.S. prosecutors unsealed a one-count indictment charging he conspired with Manning to try to hack a government computer password.
Law enforcement officials described that initial, single charge as a placeholder, and said officials had planned for months to charge Assange with Espionage Act violations, each one of which carries a potential 10-year prison sentence.
The new indictment accuses Assange of providing direction to Manning, the former Army intelligence analyst who shared hundreds of thousands of classified war logs and diplomatic papers with WikiLeaks. Manning is in jail for refusing to testify before a grand jury investigating Assange.
Assange is fighting extradition in the British courts, a process that could take years.
Jacques Semmelman, a New York lawyer who specializes in extradition cases, said the U.K. government is likely to reject the Espionage Act charges against Assange, due to an exemption in the extradition treaty for political offenses.
“It is a classic political offense. I have a difficult time seeing a British court departing so significantly from legal tradition and saying in this case they will make an exception,” said Semmelman. “The political offense exception as it has existed for probably 150 years has consistently maintained that for espionage charges, they are not extraditable. That’s just a classic principle of international extradition law.”
Semmelman said U.S. prosecutors have a better chance of getting Assange extradited on the single hacking conspiracy charge, but added that the lengthy Espionage Act indictment makes even that task more difficult.
In announcing the indictment, U.S. Attorney G. Zachary Terwilliger said Assange was “not charged simply because he is a publisher” but rather for “publishing a narrow set of classified documents in which Assange also allegedly published the unredacted names of innocent people who risked their safety and freedom to provide information to the United States and its allies.”
Assange’s lawyer, Barry Pollack, countered Thursday that the charges reveal “the gravity of the threat the criminal prosecution of Julian Assange poses to all journalists in their endeavor to inform the public about actions that have been taken by the U.S. government.”
Legal experts said the Assange charges suggest the Trump administration is trying to rewrite the legal balance between government secrecy and press freedom struck by the Supreme Court in the landmark 1971 case known as the Pentagon Papers.
“What the Pentagon Papers established is that the press is to be protected, and the government has generally followed that,” said Genevieve Lakier, a First Amendment expert at the University of Chicago.
The Assange indictment is “blurring the line between a member of the press and a leaker,” she said, by stretching the definition of complicity. “That could be really, really bad for the press, particularly in a period where there’s much more hostility towards the press.”
Because this kind of prosecution has never been attempted before, she said, “We just don’t have a lot of very clear case law on how far reporters can go to protect their sources. It’s a very thin line; when you’re working with someone, you’re often enabling them, helping them, protecting them, and if there’s any collaboration, now you’re in a conspiracy.”
She also noted that the prosecution might have been made possible in part because Assange himself challenged those lines.
James Goodale, who was general counsel for the New York Times during the Pentagon Papers case, called the Assange indictment “highly outrageous.”
Goodale said he feared the government was trying to interpret the Espionage Act so broadly to cover any kind of communication, in order to expand the reach of government secrecy rules.
“It’s the same stupid statute, trying to be applied in a different and a really more heinous way,” he said.