The Congressional Research Service’s (Dated) Take on Julian Assange’s Indictment: DOJ May Argue He Aided Russian Spying

Project on Government Secrecy just released a Congressional Research Service report, which was originally written on April 22, on Julian Assange’s arrest.

It’s a fairly balanced and thorough document, including quotes from The Intercept. But it’s dated, with the body of the report integrating neither his superseding indictment (though an update does note it happened) nor Sweden’s stance — reopening but not asking for extradition on — the rape investigation.

There’s one big thing that the report misses, which is relevant for its analysis, even dated as it is. It describes, correctly, that Assange was originally indicted in March 2018. But it doesn’t note that the complaint was obtained on December 21, 2017. That seems particularly pertinent given that it happened on the same day as (and therefore may be the legal reason why) the UK denied Ecuador’s attempt to make Assange a diplomat.

Ecuador previously had been unsuccessful in its attempts secure arrangements for Assange to leave the embassy through legal channels. In 2017, the country made Assange an Ecuadorian citizen. Later that year, Ecuador’s foreign minister designated Assange as a diplomat in what observers interpreted to be an effort to confer the VCDR’s personal diplomatic protections on Assange, allowing him to leave the embassy and take up a diplomatic post in Russia without fear of arrest during his travel. But U.K. officials denied Assange diplomatic accreditation, and Ecuador withdrew its diplomatic designation shortly thereafter. Ecuador also suspended Assange’s citizenship as part of its decision to allow his arrest.

For a document meant to provide Congress a balanced report on his arrest, it seems pertinent to suggest that Ecuador may have failed in its efforts to secure this diplomatic solution because the US intervened quickly.

And that, in turn, seems relevant to the one point that I haven’t seen discussed in other coverage of Assange’s arrest: whether DOJ got around cautions against indicting journalists in its media policy by relying on the language that such cautions do not apply when there are reasonable grounds to believe that the media person in question is aiding, abetting, or conspiring in illegal activities with a foreign power.

The news media policy also provides that it does not apply when there are reasonable grounds to believe that a person is a foreign power, agent of a foreign power, or is aiding, abetting, or conspiring in illegal activities with a foreign power or its agent. The U.S. Intelligence Community’s assessment that Russian state-controlled actors coordinated with Wikileaks in 2016 may have implicated this exclusion and other portions of the news media policy, although that conduct occurred years after the events for which Assange was indicted. The fact that Ecuador conferred diplomatic status on Assange, and that this diplomatic status was in place at the time DOJ filed its criminal complaint, may also have been relevant. Finally, even if the Attorney General concluded that the news media policy applied to Assange, the Attorney General may have decided that intervening events since the end of the Obama Administration shifted the balance of interests to favor prosecution. Whether the Attorney General or DOJ will publicly describe the impact of the news media policy is unclear.

That is, CRS suspects that DOJ may have gotten around cautions against arresting members of the media by using the exception in AG Guidelines,

(ii) The protections of the policy do not extend to any individual or entity where there are reasonable grounds to believe that the individual or entity is –

(A) A foreign power or agent of a foreign power, as those terms are defined in section 101 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801);

Which would in effect mean they were arguing that Assange fulfills this language from FISA.

(B) acts for or on behalf of a foreign power which engages in clandestine intelligence activities in the United States contrary to the interests of the United States, when the circumstances indicate that such person may engage in such activities, or when such person knowingly aids or abets any person in the conduct of such activities or knowingly conspires with any person to engage in such activities;

It would be unsurprising to see DOJ argue that for Assange’s activities in 2016. After all, they’ve described him in terms often used with co-conspirators in the GRU indictment (though didn’t obtain that indictment until long after Assange was charged and indicted). They similarly describe WikiLeaks as the recipient of Vault 7 documents in the Joshua Schulte superseding indictments; but while that gets perilously close to alleging Schulte was leaking documents on behalf of a foreign power, they don’t charge that (and, again, that superseding indictment was obtained months after the Assange one).

None of that means Assange was acting as — or abetting — the actions of a foreign power in 2010. That may ultimately be what they want to argue, that he was conspiring with Russia way back in 2010. But they haven’t charged or alleged that yet. Indeed, even Mike Pompeo’s accusations from 2017 — that WikiLeaks was a non-state intelligence service — don’t seem to reach the language in these exceptions.

And none of that makes this language any less dangerous for journalists. A lot of journalists published documents stolen from the DNC in 2016 long after it was broadly accepted that Russia had stolen them. That would mean any of those journalists might be accused of knowingly abetting Russia’s election year efforts.

In other words, prosecuting Assange because he knowingly abetted Russian efforts (especially if DOJ can only prove that for 2016, not the 2010 actions they’ve charged him with) still doesn’t pass the “New York Times” test.

33 replies
  1. John Paul Jones says:

    Makes me wonder whether part of the motivation for proceeding against Assange is simply the feeling that it would be good to get him for something, no matter what. If you listen to cops, sometimes they will talk about the “10-beef” rule, that is, if you can get a bad guy for something, in a sense it doesn’t matter what it is because by putting him away you get some kind of closure on the other nine things you weren’t able to put him away for, but which you are sure he did.

    • earlofhuntingdon says:

      Good question, especially as the Obama administration – not shy about using the Espionage Act or prosecuting whistleblowers – chose not to prosecute the politically painful Assange.

    • viget says:

      Yeah, I suspect this as well. Probably there is a whole lot of greymail territory an Assange defense could go into if they tried to prosecute for Vault7 or even whatever happened with the 2016 elections. It’s possible there were sources close to Assange or Wikileaks that the USG doesn’t want to burn that would be compromised if he were to come to trial for that stuff. Or, perhaps there’s a lot more that Assange did that we don’t know about, and the IC wants to keep that secret.

      The Manning stuff is pretty much all out in the open now, it seems.

    • emptywheel says:

      I don’t think it’s that. I think they want to get him on charges that won’t at the same time expose intelligence. This is all totally public.

  2. viget says:

    Ok, so just so I have this straight….

    Journalist, working on behalf of foreign power — could be OK to prosecute.

    President, or WH officials working on behalf of foreign power — NOT OK to prosecute

    Good to know.

    • Avattoir says:

      … or at least not at this time.
      What, tho, might a DoJ under the appointee of a former law-as-order state AG do?

  3. Badger Robert says:

    Assange remains quiet. His potential revelations are discredited. Other potential publishers of materials embarrassing to Trump are intimidated.

  4. Americana says:

    Aren’t there significant differences between the nature and expectations Russia may have had about what it would gain from the 2010 dump and the 2016 dump? Julian Assange’s stated purposes aren’t always clear as to the ultimate beneficiaries of Wiki info and the repercussions of dumps take years to conclude.

    The 2016 dump was explicitly meant to disrupt the Clinton campaign and doom her candidacy. But the 2010 dump supported a far broader disruption of American geopolitical strategic aims in the Middle East. We are only now seeing explicit indications ten+ years later of Russian intentions for its role in Middle East regional actions. Weirdly, this was even confirmed by the fact Russia showed up to the meetings held in the Seychelles Islands Trump decided to hold w/Erik Prince serving as Trump’s proxy.

    Seems to me Russia has multiple ways of using WikiLeaks to its advantage.

    • Rayne says:

      “Aren’t there significant differences between the nature and expectations Russia may have had about what it would gain from the 2010 dump and the 2016 dump?”

      Really? Come on. Comments like this and others you’ve been making in your short history at this site look more like DDoS clutter designed to slow down comments between regulars here who have been up to speed for years. Do your homework before typing.

      • Americana says:

        Posters will either see my point and comment on it or they’ll ignore it. I see no DDoS in that post. But if the preference is to keep solely to the immediate thrust of emptywheel’s post, just tell me. I can abide by that.

        Do I agree w/viget? Yes. Especially the second post. Do I agree w/Badger Robert? No. I think Assange’s published materials are a double-edged sword and WikiLeaks will remain an unknown quantity possibly for years to come. In fact, Assange’s current legal status makes it even more imperative that folks w/embarrassing revelations on Trump come forward and I don’t see any journalists being cowed by Trump in these circumstances.

        • Rayne says:

          Hey, thanks so much for deciding what community members will see here. Get off it. Your comments reflect an unwillingness to do your own research; because this is persistent, it comes across as fishing/phishing and it’s not going to be tolerated.

          Make contributions by adding new lines of inquiry based on sincere effort to read and research topics at hand or find another site.

        • bmaz says:

          Hi there. I have been telling people here that you were a malignant troll for quite a while.

          Thank you for confirming it.

  5. Ruthie says:

    At the time Wikileaks published the Apache helicopter video & other Manning info, I did agree that it was in fact a (quasi?) journalistic enterprise. While I always thought Assange should face the charges brought against him in Sweden, I was not in favor of his extradition to the US to face charges. My impression of him at the time was generally positive. His motives appeared to be sound. I thought Chelsea Manning should be considered a whistleblower rather than prosecuted as harshly as she was.

    I confess that I haven’t followed the ins and outs of Wikileaks’ or Assange’s activities closely, so I know only as much about the Vault 7 issue as I’ve read here over the past year-ish. But it strikes me as at least possible that his confinement in the Ecuadorean Embassy “turned” Assange. Am I wrong, or do his more questionable connections to Russians and/or other malefactors date from after that time? Note that I’m not suggesting this excuses his actions, but it might help explain them.

    • Chum'sfriend says:

      When Manning’s Apache Helicopter video was released, many viewers were understandably outraged at what appeared to be a blatant war crime… the gunning down of a renowned journalist/photographer and his helpers in broad daylight. But if you listened closely, the accompanying dialogue between the airship pilot and gunner told a different story. The helicopter was hovering stationary while the gunner scanned the streets for Iraqi fighters. Apache gunships actually have a periscope that stands above the rotors and allows crew to surveil the country side while in a hidden position. This placed the hovering helicopter crew in great danger since they were now an easy target for a rocket propelled grenade.

      The gunner reported spotting a group of men who’s behavior was suspicious, peering around the corner of a building. He stated that the apparent group leader was carrying a mortar, which in retrospect turned out to be a long black telephoto lens. But at the actual moment, peering into his viewfinder, waiting to be shot out of the sky, the gunner thought he saw a man carrying a mortar. The pilot was anxious and pressing the gunner to hurry up and make his decision. And so the young man pressed the trigger and sent a hail of bullets into a group of photojournalists who were furtively working the war torn streets of Iraq.

      To Manning and the rest of us who already knew the story, we can watch the footage while sitting in a comfy chair in front of a computer screen and we see a war crime. The Apache gunship pilot and gunner were in a totally different reality, hovering in one location, knowing they were sitting ducks doing so, with no opportunity to click the mouse and review the video. They were sweating bullets, sitting in a noisy vibrating airborne machine, peering into a video monitor trying to understand what they were seeing and having to make life or death decisions on the spur of the moment. It was a war zone.

      By releasing that video, Manning publicized the capabilities of surveillance and targeting technology in US aerial gunships. I’m certain that actual and potential military opponents of the United States studied that video very carefully. A good argument can be made that it wasn’t Manning’s choice to make, to release that video footage… and that doing so was harmful to national interests.

      • DMM says:

        Wow, you could go on the road to county fairs around the country demonstrating those kinds of contortions.

  6. Savage Librarian says:

    William A. Burck & Felix Sater:
    ( I have not yet located a story that is not from this aggregate site.)

    “Meet the mysterious conservative lawyer who keeps turning up in the Russia probes” – Raw Story

    “Burck, a former assistant U.S. attorney, shows up in two just-unsealed court documents in Felix Sater’s criminal docket from 15 years ago. Burck had not been linked to Sater before now.”

  7. CD54 says:

    So you’re saying as long as a foreign power conspires to wash criminally hacked data through an operator which also does legitimate journalism that operator is immune?

    What’s wrong with “and”? Why can’t JA simultaneously be a legitimate journalist and malevolent criminal?

    • DMM says:

      The act of publishing is itself the difference, or at least could be, it seems to not-a-lawyer me. If JA conspired to hack the DNC/Podesta, that clearly falls under the criminal realm, but “conspiring to publish” seems a much tougher question.

      Though I don’t know that it matters either way in the case of Assange, most if not all of the “foreign power” talk I’ve seen bandied about on the Twits and such seems rather misplaced .Assange is not an American.

  8. harpie says:

    Sources: US to question Assange pal jailed in Ecuador

    BOGOTA, Colombia (AP) — U.S. investigators have received permission from Ecuador to question a Swedish programmer close to WikiLeaks founder Julian Assange who has been held in jail for more than two months on suspicion of hacking, The Associated Press has learned.
    The interview with Ola Bini is set for June 27, according to an Ecuadorian prosecutor’s order provided to AP by someone closely following the case. […]

        • Rayne says:

          I don’t think it’s a completely done deal yet. The Ecuadoran public is outraged about it. I’m not Ecuadoran and it aggravates the hell out of me military access to a UNESCO World Heritage Site may have been offered up for Julian Assange’s ass.

          • P J Evans says:

            It’s like someone doesn’t get that people go to the Galapagos to see those unique animals and plants. (I know people who have been there. They enjoyed the trip, including spending some time in Ecuador on the way home.)

        • bmaz says:

          Nobody in Ecuador gives a shit about Julian Assange. They have bigger issues than a pasty ass former Australian jerk criminal absconder. And the travel tourism to the US from Ecuador is small, at best.

          Thanks for dropping in again.

      • e.a.f. says:

        first read that while skimming through an article and went back thinking it was a joke in something. No it was real. is there nothing the Americans won’t destroy in the aid of whatever makes their politicians feel like they’re “bigger than China”.

        Not only there goes the tourists, there goes the neighbourhood. A world heritage site and they want to put a military installation there. what will be next?? Doesn’t Trump understand this is not the way to deal with China. If he does, they will loose in the end. Having had a major influx of Mainland Chinese into Greater Vancouver, B.C., in the last 20 years, “the usual” won’t work. the long game is what Communist China and their Red Army excels at. If you’re not prepared for that, nothing will help.

  9. e.a.f. says:

    Assange “aided” Russian spying.? What did trump do when he was campaigning and said, “Russia if you’re listening………….”, right there is a difference between “aiding” and “asking” to spy.

    at some level I just can’t get too excited about Assange’s activities. Some may think it was wrong and they may be correct, but then we have all these “good American” politicians and wanna be politicians and what they did, in my opinion is so much worse. Assange published. the Americans subverted their own political/election process.

    I’m sure if I’m wrong some one will correct me. Am a bit tired from getting up early to watch the Toronto Raptors celebration!

  10. arice says:

    I’m a former journalist and someone who continues to work in proximity to certain NatSec agencies. To me the “New York Times Test” is really to ask yourself if a RESPONSIBLE outlet would publish the raw material in question FIRST. That’s the key to leaking anything. You’ve got to find the first outlet willing to effectively launder the purloined docs. Once that’s done everyone else just slipstreams off the first actor and claims to be reporting on the fact that, for example, Wikileaks just dumped 10,000 Clinton emails. But would the NYT ever knowingly take documents from the GRU and publish it without that intermediary laundering? Doubtful.

    Assange, allegedly, did. And that’s the crime. Even more, he allegedly asked the GRU or other hackers to illegally acquire those documents on Wikileaks behalf. That’s also the crime.

    Anyway, the other thing always being left on the table is that the so-called “Freedom of the Press” is not a freedom only held by what we currently call “the press.” It’s the right to self-expression and literal publication of information. In the framers’ mind it was the right to not just speak but to publish handbills. And it’s a right that belongs to everyone. I don’t think they foresaw it as the right to commit espionage with impunity.

    • emptywheel says:

      I’m not intentionally treating this just as a new outlet thing. As a non-traditional journalist, I’m acutely aware that 1A applies even if people dispute my claim to be a journalist.

      • arice says:

        I know you understand that, Marcy. But I keep hearing the concern bandied about that a prosecution of Assange for stealing and leaking info will have a chilling effect on JOURNALISM. Since that wasn’t the point of the 1st Amendment, anyway, why should the concern primarily be about journalists? Seems it’s either about there being an inappropriate chilling effect on EVERYONE or else it’s a non-issue. Journalists don’t get constitutional license to commit crimes with impunity that the rest of us go to jail for.

        FWIW, I see Assange at this point as just another ideological actor trying to influence the outcome of an election. No different, IMO, than if Stone had gotten those emails and published them on his own personal website.

  11. CD54 says:

    @ arice at 1:01 am

    Agree. It’s not like The Times sent Daniel Ellsberg a wish list of additional stuff to steal/hack. The purity of that transaction is an order above Assange and Russians.

    P.S. Anybody: I ask again. Why isn’t the catch and kill that The Enquirer did for Trump in 2016 not CONFRAUDUS (with Trump as a principal)?

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