“The Laptop” Is the Functional Equivalent of The Steele Dossier, 1: Rudy Is the Real Scandal

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I’m going to explain how The Laptop that Rudy Giuliani floated just before the election is the functional equivalent of the Steele dossier.

Before I do, let me make a fairly obvious (if counterintuitive) point: Of the three people that powerful Ukrainians attempted to cultivate for their ties to the Vice President or President — Paul Manafort, Hunter Biden, and Rudy Giuliani — just one provably affected US policy through the Vice President or President: Rudy.

Contrary to what you may have read, for example, Manafort actually wasn’t the one who prevented the GOP platform from being strengthened to support Ukraine, JD Gordon was (though Trump’s do-not-recall answer about his own involvement can’t rule that out). Mueller’s decision not to prosecute Gordon as an agent of Russia was only recently made public (thanks to the relentless work of Jason Leopold and his lawyer).

And while there’s a lot of circumstantial evidence that Manafort entered into a quid pro quo on August 2, 2016, trading campaign strategy for a commitment to help carve up Ukraine to Russia’s liking along with $19 million a financial benefit for Manafort personally, because the investigation into Manafort became public in 2016, his ongoing efforts to push that Russian plan to dismember Ukraine never (as far as has been made public) had the involvement of Trump. It’s possible Trump was involved or Manafort got certain commitments in 2016, but Manafort’s own cover-up prevented DOJ from determining whether or not that was true.

According to the NYT story that has renewed the frenzy around the laptop Rudy Giuliani released just before the election, Federal prosecutors still haven’t determined whether Hunter Biden’s treatment of Chinese, Kazakh, and Ukrainian influence efforts amounted to a crime. But they do have evidence that Hunter Biden tried to be explicit that he could not influence his father to help Burisma.

In one email to Mr. Archer in April 2014, Mr. Biden outlined his vision for working with Burisma. In the email, Hunter Biden indicated that the forthcoming announcement of a trip to Ukraine by Vice President Biden — who is referred to in the email as “my guy,” but not by name — should “be characterized as part of our advice and thinking — but what he will say and do is out of our hands.”

The announcement “could be a really good thing or it could end up creating too great an expectation. We need to temper expectations regarding that visit,” Hunter Biden wrote.

Vice President Biden traveled to Kyiv, the Ukrainian capital, about a week after the email.

In the same April 2014 email, Hunter Biden indicated that Burisma’s officials “need to know in no uncertain terms that we will not and cannot intervene directly with domestic policymakers, and that we need to abide by FARA and any other U.S. laws in the strictest sense across the board.”

He suggested enlisting the law firm where he worked at the time, Boies Schiller Flexner, to help Burisma through “direct discussions at state, energy and NSC,” referring to two cabinet departments and the National Security Council at the White House.

The firm “can devise a media plan and arrange for legal protections and mitigate U.S. domestic negative press regarding the current leadership if need be,” Mr. Biden wrote in the email.

And sworn testimony from experts in both parties say Hunter did not dissuade his father from taking steps to crack down on corruption.

Of these three well-connected Americans being cultivated by powerful and corrupt Ukrainians — some but not all of them known Russian agents — only Rudy Giuliani is known to have had a direct effect on policy. Among other things, Rudy got Marie Yovanovitch fired. In only Rudy’s case, then, do we have clearcut proof that a Ukrainian influence operation had the desired effect of  changing American policy. Though even there, it’s not yet clear whether Rudy’s unregistered influence peddling was criminal.

(Obviously, Manafort pled guilty to being an unregistered Ukrainian agent during the earlier period, and he got paid orders of magnitude more than Hunter Biden did, too.)

So as we fight about The Laptop again, based on a reference to verified emails in a NYT article bylined by serial Rudy mouthpiece Ken Vogel, the first thing we should keep in mind is that there’s far more evidence that Rudy Giuliani successfully influenced the President or Vice President as a secret agent of Ukraine than Hunter Biden.

Liar’s Poker: The Complexity of Julian Assange’s Extradition

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There’s a remarkable passage in the High Court ruling granting the US appeal to extradite Julian Assange. It basically judged that the key medical expert who determined that Assange would be at risk of suicide if he were extradited, Michael Kopelman, had deliberately not told the truth in his first report on Assange about his family ties to Stella Morris and their two kids, and had not used available means to correct his falsehood afterwards.

We do not accept that Professor Kopelman was confronted with a dilemma of such difficulty as has been claimed. No reason has been put forward why, if it was felt that concern for Ms Moris’ safety made it necessary to conceal her identity, he could not simply have reported all relevant facts but indicated that he did not think it right to name her. That, indeed, is what Mr Assange’s solicitor seems to have expected him to do: her statement says that she canvassed with Professor Kopelman whether the identification of Ms Moris as Mr Assange’s partner could be deferred, and the report served, without detriment to or qualification of its conclusions or their basis. Thus she was not proposing that the report should contain anything misleading, only that for the time being Ms Moris should not be named.

Nor has any reason been given why an application could not have been made to the court pursuant to rule 19.9 of the Criminal Procedure Rules which enables material to be withheld in appropriate circumstances. But in any event, even making every allowance for his being placed in a difficult situation, we cannot agree with the judge’s view that Professor Kopelman did not fail in his professional duty. As the judge found, he made at least two statements which were misleading; and we see no escape from the inference that he did so deliberately, having decided to obscure certain facts in order to avoid mentioning the obviously-relevant facts of Ms Moris’ recent and continuing relationship and of the children whom she had by Mr Assange. At the conclusion of his first report, and in accordance with rule 19.4 of the Criminal Procedure Rules, he signed a declaration in the form required by paragraph 19B.1 of the Criminal Practice Direction. In this, he stated amongst other things –

“(vii) I have exercised reasonable skill and care in order to be accurate and complete in preparing this report.

(viii) I have endeavoured to include in my report those matters, of which I have knowledge or of which I have been made aware, that might adversely affect the validity of my opinion. I have clearly stated any qualifications to my opinion. …

(x) I will notify those instructing me immediately and confirm in writing if for any reason my existing report requires any correction or qualification.”

In our view, Professor Kopelman plainly did not comply with those statements, because in his first report he chose not to state what he knew of the relationship between Mr Assange and Ms Moris when opining on the effects of Mr Assange’s “solitary confinement” in the Embassy and the risk of suicide; and subsequently he failed to correct his report or to make clear his earlier knowledge of the relationship. We regret to say that declaration (viii) was simply untrue. His second report did nothing to correct the misleading impressions created by the first. On the contrary, it maintained his silence about his knowledge at the time of the first report.

With all respect to the judge, we cannot agree with her implicit finding that Professor Kopelman’s failings could be excused or overlooked merely because his conduct could be viewed as “an understandable human response”. Many people mislead courts for reasons which might be understandable but that does not excuse the behaviour and it is incompatible with the obligations of an expert witness to do so. Nor was it relevant to the judge’s assessment of his evidence that she had learned of Mr Assange’s relationship with Ms Moris before she read the medical evidence: it was no thanks to Professor Kopelman that she had done so.

There were, therefore, substantial reasons for the judge to question the impartiality and reliability of Professor Kopelman’s opinion. With respect to the judge, we would have expected to see a rather fuller analysis than she gave of her reasons for deciding that she could accept his evidence not least because it was central to the success of Mr Assange on the single ground which led to his discharge.

The question for this court, however, is whether she was entitled to accept his evidence. Mr Lewis confirmed that the USA did not submit to the judge that the professor’s evidence was inadmissible and should be excluded but rather that it should be given little weight, particularly where it was not supported by other expert evidence or contemporary medical records. In the end the argument before the judge devolved to one of weight. It is highly unusual for the court to be considering an expert witness whom a judge has found to have given misleading evidence but whose evidence has nonetheless been accepted. [my emphasis]

Because the US did not argue that his testimony was, as a result, inadmissible, but instead argued his testimony should be given little weight, the High Court ruled they were unable to second guess Vanessa Baraitser’s ruling, which relied heavily on Kopelman’s opinion. For that reason, the High Court rejected US’ two bases for appeal tied to Kopelman’s opinion.

Nevertheless, the High Court accepted that US assurances that Assange would not be subjected to solitary confinement unless he does something new to merit it were sufficient to grant the extradition request.

Ground 2: Having decided that the threshold for discharge under section 91 was met, the judge ought to have notified the USA of her provisional view to afford it the opportunity of offering assurances to the court;

[snip]

Ground 5: The USA has now provided the United Kingdom with a package of assurances which are responsive to the judge’s specific findings in this case. In particular, the US has provided assurances that Mr Assange will not be subject to SAMs or imprisoned at ADX (unless he were to do something subsequent to the offering of these assurances that meets the tests for the imposition of SAMs or designation to ADX). The USA has also provided an assurance that they will consent to Mr Assange being transferred to Australia to serve any custodial sentence imposed on him if he is convicted.

[snip]

The first and fourth assurances wholly exclude the possibility of Mr Assange being made subject to SAMs, or detained at the ADX, either pretrial or after conviction, unless, after entry of the assurances, he commits any future act which renders him liable to such conditions of detention. It is difficult to see why extradition should be refused on the basis that Mr Assange might in future act in a way which exposes him to conditions he is anxious to avoid.

The ultimate effect is that, unless Assange succeeds in his own appeal of this or the underlying decision, then Priti Patel will soon face the decision of whether or not to extradite him.

These two issues go to the dubious credibility of both sides. The High Court ruled that Kopelman did not give unvarnished expert opinion (he was in no way the only one of WikiLeaks’ experts to do so), but found that could not, at this point, affect the legal analysis. And it found that US assurances that US jails would treat Assange humanely were sufficient, even though I believe there is a high likelihood that Assange will do something that ends up getting  him put in some form of isolation.

WikiLeaks has lied systematically throughout this extradition process — about why Assange was charged when he was, about what he was charged with, about how strong the case against him is, about what a Yahoo article actually said. I have described how a very close Assange associate ordered me, in advance of the first extradition hearing, to stop doing factual reporting on Joshua Schulte’s case because it would undermine the story about journalism WikiLeaks wanted to tell, which is one way I’m absolutely certain the lying is intentional. They have affirmatively told a story that was most useful to their propaganda effort, one they knew to be false.

It’s bad enough that WikiLeaks has chosen to lie over and over in Assange’s defense.

But out of a combination of sloppiness and willful ethical failures, press organizations and journalists have replicated those lies, claiming to do so in the name of “journalism.” In effect, press NGOs and journalists have spent the last two years stating that the lying and hacking that WikiLeaks does is what they do — a claim that I fear will backfire in the future. You can’t defend journalism by lying, but that is what Assange has induced journalists and their advocates to do, the world over.

That said, the US is little more credible. There’s scant reason to credit US assurances on jail and prison conditions. That’s true — and would be true for all international extradition cases — because our jails and prisons are shamefully inhumane. But it’s also true because a national security defendant like Assange would have little leeway before triggering more severe restrictions.

This is an example where neither side should be credited.

But that doesn’t change the danger. The way in which DOJ has applied the Espionage Act poses a grave threat to journalism.

17 of the 18 charges against Assange criminalize things that journalists also do: soliciting and publishing classified information.

The 18th charge is a hacking conspiracy, one that extends from efforts to hack multiple targets in 2010, including a WikiLeaks dissident, through the Stratfor hack, includes WikiLeaks’ efforts to exploit their role in helping Edward Snowden flee to Russia, right up to WikiLeaks’ efforts to recruit CIA SysAdmins like Joshua Schulte to hack the CIA, though the indictment stops short of WikiLeaks’ publication of those hacked files. There is nothing controversial about the CFAA charge — and, indeed, people who support privacy should be outraged about some of this (and this is not the only surveillance of private citizens I’ve heard about). A lot of people have been duped to cheerlead really invasive hacking and spying, if done by WikiLeaks, in the name of journalism.

The hacking charge parallels the Espionage charges, which is central to underlying extradition ruling. Judge Baraitser used the way these efforts worked in parallel to distinguish Assange from journalists.

[Baraitser] distinguished what Assange does from what journalists do because, as alleged in the indictment and in actual fact, hacking is such a central part of what Assange does. It’s not clear she would have gotten to this ruling without the language included in the superseding indictment (a superseding indictment which, again, virtually all Assange boosters either willfully ignore or are genuinely ignorant exists). But as it happened, she relied heavily on the language in the superseding indictment and very clearly distinguished what Assange does from what journalists do.

Of particular interest (because this is the language in the indictment that I believe sets up adding Vault 7 to the indictment), Baraitser accepted the US government’s description of Assange recruiting people to hack.

Mr. Assange, it is alleged, had been engaged in recruiting others to obtain information for him for some time. For example, in August 2009 he spoke to an audience of hackers at a “Hacking at Random” conference and told them that unless they were a serving member of the US military they would have no legal liability for stealing classified information and giving it to Wikileaks. At the same conference he told the audience that there was a small vulnerability within the US Congress document distribution system stating, “this is what any one of you would find if you were actually looking”. In October 2009 also to an audience of hackers at the “Hack in the Box Security Conference” he told the audience, “I was a famous teenage hacker in Australia, and I’ve been reading generals’ emails since I was 17” and referred to the Wikileaks list of “flags” that it wanted captured. After Ms. Manning made her disclosures to him he continued to encourage people to take information. For example, in December 2013 he attended a Chaos computer club conference and told the audience to join the CIA in order to steal information stating “I’m not saying don’t join the CIA; no, go and join the CIA. Go in there, go into the ballpark and get the ball and bring it out”.

Again, it’s not just that Assange solicited people to share classified information with him (which journalists do), but that he also explicitly encourages people to hack to get it.

She further used European privacy protections to distinguish Assange’s bulk publication of the identities of US and Coalition (therefore, also UK) informants from journalism.

She distinguished Assange’s publication online (in bulk, though that distinction is less clear and not one of great comfort to someone who also publishes online) from traditional journalism.

More importantly, Baraitser talked about the balancing involved in Article 10 (particularly with regards to the right of private life).

The defence submits that, by disclosing Ms. Manning’s materials, Mr. Assange was acting within the parameters of responsible journalism. The difficulty with this argument is that it vests in Mr. Assange the right to make the decision to sacrifice the safety of these few individuals, knowing nothing of their circumstances or the dangers they faced, in the name of free speech. In the modern digital age, vast amounts of information can be indiscriminately disclosed to a global audience, almost instantly, by anyone with access to a computer and an internet connection. Unlike the traditional press, those who choose to use the internet to disclose sensitive information in this way are not bound by a professional code or ethical journalistic duty or practice. Those who post information on the internet have no obligation to act responsibly or to exercise judgment in their decisions. In the modern era, where “dumps” of vast amounts of data onto the internet can be carried out by almost anyone, it is difficult to see how a concept of “responsible journalism” can sensibly be applied.

[comparison with other outlets and their condemnation of him]

The law already constrains in various ways what may be published in order to avoid damage to private interests. For example, the High Court recently awarded damages against the Associated Newspaper Ltd, after the MailOnline website published an article , reporting on the arrest of the claimant in the aftermath of the Manchester Arena bombing, and disclosing details capable of leading to his identification (Alaedeen Sicri v Associated Newspapers Limited, [2020] EWHC 3541 (QB)). Free speech does not comprise a ‘trump card’ even where matters of serious public concern are disclosed (see Stoll above), and it does not provide an unfettered right for some, like Mr. Assange, to decide the fate of others, on the basis of their partially informed assessment of the risks.

This was not necessarily a national security stance. Rather, in language that would apply equally to Assange’s indiscriminate publication of the DNC and Podesta emails (as well as the publication of the Turkish and Saudi emails), Baraitser argued that Assange’s publication in bulk was not protected because it did not and could not properly weigh the risk to others.

That’s scant comfort for the way Assange’s prosecution could be used against actual journalists, though, for several reasons. First, the Espionage Act charges still criminalize actions that journalists do, including the publication of classified information. Plus, the US First Amendment protects publication, not journalists, and so the distinction Baraitser made works less well in the US. And the US has none of the privacy protections that Baraitser used to distinguish his indiscriminate publication of informant identities (though it should).

In other words, unless the charges — or the way they’re presented — change between now and trial, ultimately the application of them to Assange would be a dangerous precedent given US law.

They may well change. The US government may have plans to make an argument that — even key press defenders have said — would make the Espionage Act charges more palatable: by, in effect, declaring Assange a spy. That’s one of the reasons I find the sealed ex parte filing submitted in the Joshua Schulte case on August 4 of such interest, because it seems so reactive to what is going on in the Assange extradition.

To understand why I think this is a possibility, it’s important to understand key details about the timeline leading up to Assange’s charges, details that WikiLeaks has worked very hard to obscure:

  • As CNN reported in a 2017 piece that Julian Assange’s expert professed to be unable to find with Google, “The US view of WikiLeaks and Assange began to change after investigators found what they believe was proof that WikiLeaks played an active role in helping Edward Snowden, a former NSA analyst, disclose a massive cache of classified documents.” Snowden’s own book gave significant reason to believe this went well beyond simply fleeing to Russia. In any case, once Assange helped Snowden flee, WikiLeaks had eliminated the “NYTimes problem” DOJ faced if they prosecuted Assange for things real news outlets also do, because whatever else journalists do to protect their own sources, they don’t help the intelligence officers of one country flee to a hostile country.
  • Just before Obama left office, the review of WikiLeaks’ role in the Russian election operation changed the view of the Obama Administration. It’s impossible to know whether that would have led Obama to charge Assange if he had more time. But there’s reason to believe that developments people like to blame on Trump — like increased surveillance of Assange — were set in motion before Trump came in.
  • The 2017 release of hacked CIA tools — the publication that led Mike Pompeo to call WikiLeaks a hostile non-state intelligence agency and to consider and in some cases implement more onerous steps against Assange — not only involved the same actions currently charged for the Manning leaks (including the apparently selective publication of CIA officer identities), but it also involved efforts to extort the US government and even the President’s son. Additionally, the concern about WikiLeaks’ treatment of the CIA leak was not just or even primarily about the files that got released, but the files that WikiLeaks was hoarding; that’s what the government was really trying to understand when they conducted some of the more aggressive spying on WikiLeaks associates: what WikiLeaks was doing with the CIA’s source code, the vast majority of which is still unaccounted for.
  • In addition to the Vault 7 release, after Roger Stone almost got Trump to shut down the entire Russian investigation in June 2017, later in 2017 DOJ started investigating Assange’s role in the 2016 operation, an investigation that at least by 2018 encompassed the question of whether he was an Agent of Russia. Particularly about these topics, Assange repeatedly foregrounded Russian-favored storylines during his extradition, rather than the truth.
  • The surveillance that ratcheted up starting in summer 2017 and especially in December 2017 reportedly bore fruit. That month, according to even WikiLeaks-friendly sources speaking to Yahoo, Russia tried to exfiltrate Assange. This is a core detail of the Yahoo story that WikiLeaks has otherwise embraced, one that likely affects everything that came later. Julian Assange was not charged in 2016 after he helped Russia tamper in the US election. He was not charged in April 2017 after the Vault 7 release. He was charged the day the Russians tried to exfiltrate him. The Espionage Act charges that pose such a threat to journalism only came in May 2019, at least 8 months after DOJ started investigating whether Assange was a Russian Agent based on his 2016 conduct and two years after they significantly ramped up surveillance of him. The second superseding indictment that Assange boosters like to ignore includes conduct that extends through 2015 and incorporates multiple hacking conspiracies (in a single count) and his actions with regards to Edward Snowden. None of that changes the danger the Espionage Act charges pose to journalism. But it means they post-date the time when Russia came to fetch Assange.

In 2020, as part of a presumptively cynical attempt to coerce Jeremy Hammond to testify against Assange in a grand jury, prosecutors on this case asserted, as fact, that Assange is a Russian spy.

I don’t know whether that’s true or not — or whether the government would ever share its evidence to make the case, much less prove that he was a Russian spy during all the current charged acts going back to 2010. I know of plenty of circumstantial evidence going back even before 2009 that makes it plausible (here’s a compendium of some, but not all, of that evidence I know of). If that were proven, it would suggest Assange is — and may have been since he convinced Chelsea Manning to keep stealing documents, some of which she didn’t personally work with — a spy, using a classic technique of recruiting people using one motive to serve a very different one. It’d be a brilliant way to convince a lot of people to ruin their lives if that were true.

I’m not going to persuade the boosters nor, probably, is anything the US government would be willing to say in unclassified form. But I invite Assange boosters to consider whether they would continue their own activism for him if they were convinced of that fact. (There’s absolutely a case to be made for doing so, particularly for non-Americans.) More importantly, I invite journalists and journalism NGOs, particularly the ones who have been telling partial truths, lies of omissions, or magnifying brazen falsehoods, to consider what that would mean for their profession, if after spending two years proclaiming that what Assange does is what journalists do it were revealed that Assange was not what the deliberate lies WikiLeaks is telling proclaim him to be.

I’d like to protect journalism. That requires opposing the Espionage Act charges against Assange for obtaining classified information and publishing it. But it also requires telling the truth about Julian Assange.

What today’s High Court judgment confirms is that neither side can be trusted.

Citing “Considerable Detail” in Affidavits, Judge Denies Bid to Unseal Project Veritas Warrants

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Magistrate judge Sarah Cave just denied a bid by the Reporter’s Committee for the Freedom of the Press to unseal the warrant affidavits targeting James O’Keefe and other Project Veritas personnel.While she rejected the government’s claim there was an exemption for warrant applications in ongoing criminal investigations, she found that a balancing test supported the government’s bid to keep the affidavits secret.

Of particular note, Cave conducted an in camera review of the affidavit and determined that there was so much information about individuals who, “voluntarily or involuntarily,” had provided information for the investigation, releasing the affidavits would thwart cooperation in the investigation.

Third, the Court has reviewed the Materials in camera and observes that they contain considerable detail about individuals who may have already provided information to the Government—voluntarily or involuntarily—such that unsealing of the Materials “could subject [them] to witness tampering, harassment, or retaliation.” In re Sealed Search Warrants Issued June 4 & 5, 2008, 2008 WL 5667021 at *4; see Amodeo II, 71 F.3d at 1050 (noting that if the confidentiality of cooperating witnesses “cannot be assured, cooperation will not be forthcoming”); Smith 985 F. Supp. 2d at 531–32 (noting that disclosure of search warrant materials would undermine ongoing investigation by, inter alia “officially confirm[ing] who some of the cooperating witnesses in these investigations are,” which “could lead to efforts by [the targets of the investigation] to frustrate the ongoing investigations”). Release of the information in the Materials “is likely to cause persons in [this] or future cases to resist involvement where cooperation is desirable,” and thereby undermine law enforcement interests. Amodeo II, 71 F.3d at 1050.

Cave describes that “the Materials include references to a number of individuals employed by or associated with Project Veritas. Their conduct in relation to the alleged criminal activity is described in considerable detail, although not all of that conduct may be criminal.”

Cave also determined that, because of the amount of detail the government obtained  there was no way to redact the names in the affidavit to make it available that way.

Finally, the Court has carefully examined the Materials to determine whether redactions would be sufficient to protect the countervailing interests that outweigh the presumption of public access, and concludes that “no portion of those documents may be unsealed without compromising the interest in the integrity and security of the [I]nvestigation” and the privacy interests of third parties. In re Sealed Search Warrants Issued June 4 & 5, 2008, 2008 WL 5667021, at *5. As noted above, the Materials contain not only the legal theories of the Investigation, but also details about the information the Government has obtained and from which sources. The nature and extent of any possible redactions to omit this information would “render[] unintelligible” the contents of the Materials, and could be “more likely to mislead than to inform the public” in the way that RCFP predicts. Amodeo II, 71 F.3d at 1052. Accordingly, the Court concludes that unsealing the Materials, “even in redacted form, cannot be accomplished at this stage without serious risk to the [I]nvestigation,” and they must therefore remain sealed at this time. In re Sealed Search Warrant Issued June 4 & 5, 2008, 2008 WL 5667021, at *5

We’ll have to wait to see what the government’s case is or was against Project Veritas.

But it sounds like there’s a good deal behind these warrants.

Parallel Tracks: Project Veritas Served on Their Subpoena Stance

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There’s a temporal problem in Project Veritas’ initial motion to appoint a Special Master to sort through materials seized from James O’Keefe in a search on November 6.

In one place, it described that, “At 6:00 AM on Saturday, November 6, 2021, the Federal Bureau of Investigation (“FBI”) executed a search warrant at Mr. O’Keefe’s home.” In another, it described that, “On November 5, 2021, at approximately 6:00 AM, the FBI executed search warrants at the homes of two former Project Veritas journalists, seizing their cell phones and other electronic devices.” But the very next paragraph describes that the O’Keefe search happened two days after the initial search: “Approximately two days later, the FBI executed a search warrant at the home of James O’Keefe.” Then, the letter describes that, “on November 4, 2021 – two days before its search of Mr. O’Keefe’s home — the undersigned had accepted service of a grand jury subpoena directed to Project Veritas.” Shortly thereafter, the letter says the earlier search happened on November 4, not November 5. “On November 4, 2021, at about the same time that FBI agents finished searching the home of a former Project Veritas journalist.”

Even while incorrectly stating that the initial search happened on November 5, the filing (and a subsequent one) don’t describe precisely when NYT’s Mike Schmidt twice reached out for comment about the searches, a key part of their obviously false narrative that Schmidt had to have gotten tipped off by the FBI.

The searches happened on November 4 and 6, at 6AM. I asked Mike Schmidt when he reached out but he didn’t respond, though Eric Cochran’s motion to appoint a Special Master says Schmidt reached out approximately an hour after the 3-hour search happened, so around 10AM.

The incorrect claim in that initial filing that the first searches occurred on November 5 may be nothing more than a typo, but sorting through the timeline alerted me to a chronological detail of some import that PV may want to obscure. PV got word themselves of the investigation, and reached out to one of the prosecutors involved, Mitzi Steiner, to find out more about the investigation on October 26. After Steiner refused to reveal anything about the investigation, lawyers for PV offered to accept a subpoena the next day, promising they had “material and helpful information” to the investigation. But after DOJ sent a subpoena on November 4 — almost certainly after the first searches, which targeted former PV staffers — PV persistently refused to say whether it would comply with the subpoena.

[T]he Government has repeatedly offered to be flexible about the Subpoena’s return date if Project Veritas confirms that it will comply with the requests therein. Project Veritas has repeatedly declined to do so, and similarly declines in its motion here to represent that it will comply.

And after PV repeatedly declined to ask for an extension in response to reassurances they would comply with the subpoena, they used the search on O’Keefe as an excuse to try to get such an extension.

Judge Analisa Torres denied PV’s request for an extension, which could have significant repercussions going forward.

There are several implications of this timeline. First, DOJ may believe, with some justification, that by first serving a subpoena on PV in response to their invitation to do so, only to have them equivocate about whether they would comply, they had fulfilled DOJ’s requirements to seek alternative resolutions, short of a search. That is, PV’s own games may have led to the search on O’Keefe.

The other issue is how this affects PV’s ability to claim expansive privilege protections. When PV alerted DOJ that it not only knew of the investigation, but who was leading it, DOJ likely took measures to identify how they had learned of the investigation. That’s a good way to identify attempts to obstruct an investigation. For example, after it became clear that Roger Stone was tampering in the Mueller investigation in 2018, Mueller obtained a pen register to learn with whom, besides Michael Caputo, Stone was communicating. That appears to be what alerted Mueller to how panicked Stone was by the Andrew Miller interview. That, in turn, is something that may have helped them obtain probable cause on the others. In a directly relevant example, for example, DOJ learned that Lev Parnas had deleted his iCloud account, which seems to be one of the things that helped SDNY obtain warrants for Rudy’s cloud-based accounts in 2019. When co-conspirators attempt to coordinate stories or delete evidence, it makes it a lot easier to obtain warrants.

As a result, there may be information pertaining to PV’s involvement in the alleged theft in three different places. First, I would be shocked if SDNY had not obtained the cloud-based communications of O’Keefe, Eric Cochran, and Spencer Meads. That said, DOJ has already indicated that it knows key communications of interest took place on Telegram, and it’s unclear what access DOJ has to that, independent of the phones Telegram texts were sent on. Then there are the contents of their phones, which may (and uncontroversially could) be subjected a Special Master review. If Torres grants PV’s request for a Special Master, it would give PV an opportunity to at least understand what the full legal exposure is. But then there’s the matter of the subpoena. I would be unsurprised if PV filed a challenge to the subpoena, which might go before Chief Judge Laura Taylor Swain rather than Judge Torres, and might be sealed as a grand jury matter. But this is a subpoena they invited, which will make it a lot harder to claim the subpoena was improper.

With Michael Cohen, the government was able to demonstrate during the Special Master review that some of the materials that Cohen might otherwise have tried to claim were privileged were not, in part because they had already seized his cloud communications (including his Trump Organization emails, which were hosted and turned over by Microsoft). Here, if PV responded to the subpoena at all, the government get a privilege log, laying out why PV thinks conversations O’Keefe had with 45 different lawyers were really privileged, thereby committing PV and O’Keefe to the claims they made in a subpoena response (assuming, of course, they don’t buy time by challenging the subpoena).

Whatever the merit — or abuses — of the focus on PV, PV’s games on the subpoena may have made efforts to protect O’Keefe far more difficult. And their game-playing with the subpoena will make it more difficult for other news outlets in the future to have DOJ treat efforts to accommodate reasonable requests in good faith.

It’s a complex issue and we don’t have enough information to know whether DOJ’s case — that PV was involved in the theft of Ashley Biden’s diary itself, and so not protected under any First Amendment precedent that might otherwise be available to them — is solid or if it instead charges them for involvement after the diary was already stolen, the First Amendment standard under Bartnicki which applies to journalists and non-journalists alike. PV is also trying to shield materials — including donor information and claimed attorney-client privileged materials — along with anything purporting to relate to journalism. The seeming desperation to hide donor information (which normally wouldn’t be involved in the scope of such a request) raises real questions about the sincerity of their journalistic claims, particularly given the recent revelation that PV would let donors dictate the timing of PV’s publications. And as DOJ noted in its response to PV’s motion for a Special Master to review the seized material, PV is not trying to protect the identities of its purported (second-hand) sources for the diary, so some protections that might otherwise apply do not here.

It is troubling that DOJ seized records from O’Keefe citing crimes that suggest liability for a crime after the fact, because if PV genuinely was only involved after the fact, it would pose a dangerous precedent for actual journalists. But the games that PV appears to have played with their subpoena dangle — and some changes they’ve already made to their story — suggest there my be more to the story.

Timeline

These events are covered by three SDNY dockets: 21-mc-813 for James O’Keefe, 21-mc-819 for Eric Cochran, and 21-mc-825 for Spencer Meads.

2020

October 12: O’Keefe sends email, not mentioning Ashley Biden by name (but clearly referring to her) explaining his decision not to publish “Sting Ray” Story.

October 25: National File publishes pages from Ashely Biden’s diary, linking parallel New York Post campaign targeting Hunter. It explains the provenance of the diary this way:

National File also knows the reported precise location of the physical diary, and has been told by a whistleblower that there exists an audio recording of Ashley Biden admitting this is her diary.

[snip]

National File obtained this document from a whistleblower who was concerned the media organization that employs him would not publish this potential critical story in the final 10 days before the 2020 presidential election. National File’s whistleblower also has a recording of Ashley Biden admitting the diary is hers, and employed a handwriting expert who verified the pages were all written by Ashley. National File has in its posession a recording of this whistleblower detailing the work his media outlet did in preparation of releasing these documents. In the recording, the whistleblower explains that the media organization he works for chose not to release the documents after receiving pressure from a competing media organization.

November 3: PV provides the diary to local law enforcement in FL.

2021

October 26: Paul Calli call DOJ, asks for AUSA Mitzi Steiner, and asked to speak about the PV investigation; Steiner asked how Calli had obtained her name, what else he had obtained, and declined to speak with Calli.

October 27: Lawyers for Project Veritas inform the DOJ that they will accept service for a subpoena relating to the investigation

November 3, 3:49 PM: Search warrants for Eric Cochran and Spencer Meads approved.

November 4, AM: FBI executes search warrants on former PV employees, Cochran and Spencer Meads.

November 4: PV lawyers accept service of subpoena.

November 4, one hour after the search: Mike Schmidt reaches out to Cochran and O’Keefe for comment about the investigation.

November 5, 11:18 AM: Warrant for O’Keefe authorized

November 5: NYT publishes story on investigation including language that PV would later baseless claim had to have come from the FBI.

November 6: FBI executes a search warrant on James O’Keefe

November 6: Schmidt contacts O’Keefe for comment.

November 6: Lawyers for Project Veritas ask the FBI to sequester material from the phone.

November 7: DOJ declines PV’s request and states the FBI has complied with all media guidelines.

November 8, 6:11PM: DOJ emails PV and tells them the extraction may start as soon as the next day.

November 8: After PV says it’ll file a legal challenge, FBI says it’ll only stop extraction after PV files such a challenge.

November 10: On behalf of PV, Calli Law moves to appoint a Special Master.

November 11, 12:51-12:53AM: Calli asks for confirmation that DOJ stopped extraction and review on O’Keefe’s phone on November 8.

November 11, 7:57AM: DOJ responds that the substantive review of O’Keefe’s phone was paused upon filing of motion on November 10.

November 11; 2:13PM: Judge Analisa Torres sets initial briefing schedule; in response to Torres order, DOJ stops extraction of O’Keefe phone.

November 12: In response to DOJ request, Torres extends briefing schedule.

November 12: Greenberg Traurig lawyer Adam Hoffinger, representing Eric Cochran, asks for Special Master to apply to materials seized from him, as well.

November 12: Letter signed by FL attorney Brian Dickerson but apparently docketed by NY lawyer Eric Franz asks for Special Master to apply to Spencer Meads

November 12, 3:49PM: Calli asks for clarification on review and extraction.

November 12, 3:59PM: DOJ responds that, “upon the filing of your motion, the Government paused the review of all material obtained from the search of your  client’s residence.”

November 14: Calli submits clarification letter regarding extraction and review.

November 15: Torres sets schedule in Cochran docket.

November 15: DOJ requests permission to reply to PV on November 19.

November 15: Calli requests inquiry into government leaks to NYT.

November 16: Torres grants permission to respond on November 19.

November 16: Ian H. Marcus Amelkin asks to delete initials of PV source, A.H., from docket.

November 17: Torres denies Amelkin request without prejudice.

November 17: Cochran motion to appoint Special Master.

November 18: For Meads, Dickerson formally moves for Special Master (and also complains that FBI seized dated devices).

November 19: Calli requests extension on response deadline for PV subpoena.

November 19: Government files opposition to request for Special Master and inquiry into purported leaks.

November 19: DOJ requests permission to respond to motion for extension on subpoena. Torres grants request.

November 21: DOJ opposition to extend subpoena deadline.

November 21: Government motion to oppose unsealing affidavits.

November 22: Torres denies motion for extension on subpoena.

November 22: PV reply to government opposition to Special Master.

November 23: Torres denies motion (including from RCFP) to unseal affidavits.

November 23: Cochran reply to government opposition to unseal affidavits.

November 24: Meads reply to refusal to unseal affidavits, including letters from House and Senate complaining to DOJ.

Charlie Savage Plays with His Magic Time Machine To Avoid Doing Journalism

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Charlie Savage just did something astonishing in the name of press freedom. He said that the truth doesn’t matter now, in 2021, because he reported a different truth eleven years ago.

He took issue with my headline to this piece, noting that he was obfuscating the facts about the Julian Assange prosecution so as to shoehorn it into a story about actual journalists.

Charlie made several obfuscations or clear errors in that piece:

  • He didn’t explain (as he hasn’t, to misleading effect, in past stories on Assange) the nature of the 2nd superseding indictment and the way it added to the most problematic first superseding one
  • He said the 2019 superseding indictment (again, he was silent about the 2020 superseding indictment) raised the “specter of prosecuting reporters;” this line is how Charlie shoehorned Assange into a story about actual journalists
  • He claimed that the decision to charge Assange for “his journalistic-style acts” arose from the change in Administrations, Obama to Trump (and specifically to Bill Barr), not the evidence DOJ had obtained about Assange’s actions over time

Charlie presented all this as actual journalism about the Assange prosecution, but along the way, he made claims that were either inflammatory and inexact — a veritable specter haunting journalism — or, worse, what I believe to be false statements, false statements that parrot the propaganda that Wikileaks is spreading to obscure the facts.

The “specter” comment, I take to be a figure of speech, melodramatic and cynical, but mostly rhetorical.

The silence about the 2020 superseding indictment is a habit I have called Charlie on before, but one that is an error of omission, rather than of fact.

It’s this passage that I objected to at length:

But the specter of prosecuting reporters returned in 2019, when the department under Attorney General William P. Barr expanded a hacking conspiracy indictment of Julian Assange, the WikiLeaks founder, to treat his journalistic-style acts of soliciting and publishing classified information as crimes.

Obama-era officials had weighed charging Mr. Assange for publishing leaked military and diplomatic files, but worried about establishing a precedent that could damage mainstream news outlets that sometimes publish government secrets, like The Times. The Trump administration, however, was undeterred by that prospect.

As presented, this passage made several claims:

  1. “Obama-era officials” had considered charging Assange for publishing activities, but “Obama-era officials” did not do so because it might damage “mainstream news outlets” like the NYT
  2. The reason that the Trump administration was willing to charge Assange for publishing was because they were “undeterred” from the prospect of doing damage to the NYT
  3. DOJ under Billy Barr expanded a hacking conspiracy “to treat his journalistic-style acts of soliciting and publishing classified information as crimes”

I believe the last claim is largely factual but misleading, as if the operative issue were Barr’s involvement or as if Barr deliberately treated Assange’s “journalistic-style acts” — as distinct from that of actual journalists — as a crime. There may be evidence that Barr specifically had it in for WikiLeaks or that Barr (as distinct from Trump’s other Attorneys General) treated Assange as he did out of the same contempt with which he treated actual journalists. There may be evidence that Barr — whose tenure as AG exhibited great respect for some of the journalists he had known since his first term as AG — was trying to burn down journalism, as an institution. But Charlie provides no evidence of that, nor has anyone else I know. (Indeed, Charlie’s larger argument presents evidence that Barr’s attacks on journalism, including subpoenas that may or may not have been obtained under Barr in defiance of guidelines adopted under Eric Holder, may only differ from Obama’s in their political tilt.)

Of course, one of the worst things that the Trump Administration did to a journalist, obtaining years of Ali Watkins’ email records, happened under Jeff Sessions, not Barr.

The first and second claims together set up a clear contrast. Obama-era officials — and by context, this means the entirety of the Obama Administration — did not prosecute Assange for publication because of what became known — based off a description that DOJ’s spox Matthew Miller gave publicly in 2013 — as the NYT problem, the risk that prosecuting WikiLeaks would endanger NYT. But the Trump Administration was willing to charge Assange for publication because they didn’t think the risk that such charges posed to the NYT were all that grave or damaging or important.

There’s no way to understand these two points except as a contrast of Administrations, to suggest that Obama’s Administration — which was epically shitty on leak investigations — wouldn’t do what the Trump Administration did do. It further involves treating the Department of Justice as an organization entirely subject to the whims of a President and an Attorney General, rather than as the enormous bureaucracy full of career professionals who guard their independence jealously, who even did so, with varying degrees of success, in the face of Barr’s unprecedented politicization of the department.

It’s certainly possible that’s true. It’s possible that Evan Perez and three other CNN journalists who reported in 2017 that what actually changed pertained to Snowden simply made that report up out of thin air. It’s certainly possible that under a President who attempted to shut down the Russian hacking investigation to protect Assange even after his CIA Director declared war on Assange, who almost blew up the investigation into Joshua Schulte, who entertained pardoning Assange in 2016, in 2017, in 2018, and in 2020, at the same time viewed the Assange prosecution as a unique opportunity to set up future prosecutions of journalists. It’s certainly possible that Billy Barr, who sabotaged the Mike Flynn and Roger Stone prosecutions to serve Trump’s interests, went rogue on the Assange case.

But given the abundant evidence that this prosecution happened in spite of Trump’s feelings about WikiLeaks rather than because of them, you would need to do actual reporting to make that claim.

And, as noted, I asked Charlie whether he had done the reporting to sustain that claim before I wrote the post…

… just as I — months earlier — asked Charlie why he was falsely claiming Assange was charged in 2018 rather than within a day of a Russian exfiltration attempt in 2017, something that probably has far more to do with why DOJ charged Assange when and how they did than who was Attorney General at the time.

After his bullshit attempt to explain that date error away, Charlie removed the date, though without notice of correction, must less credit to me for having to fact check the NYT.

Anyway, Charlie apparently didn’t read the post when I first wrote it, but instead only read it yesterday when I excused Icelandic journalists for making the same error — attributing the decision to prosecute Assange to Billy Barr’s animus rather than newly discovered evidence — that Charlie had earlier made. And Charlie went off on a typically thin-skinned tirade. He accused me (the person who keeps having to correct his errors) of being confused. He claimed that the thrust of my piece — that he was misrepresenting the facts about Assange — was “false.” He claimed the charges against and extradition of Assange was a precedent not already set by Minh Quang Pham’s extradition and prosecution. He accused me of not grasping that this was a First Amendment argument and not the journalism argument he had shoehorned it into. He suggested my insistence on accurate reporting about the CFAA overt acts against Assange (including the significance of Edward Snowden to them) was a “hobbyhorse,” and that I only insisted on accurate reporting on the topic in an effort to, “us[e] something [Charlie] said as a peg to artificially sex it up (dumb NYT!) even though it doesn’t actually fit.” He then made a comment that still treats the prosecution of Assange as binary — the original indictment on a single CFAA charge or the first superseding indictment that added the dangerous Espionage Act charges — rather than tertiary, the second superseding indictment that, at least per Vanessa Baraitser, clearly distinguished what Assange did from what journalists do.

That’s when things went absolutely haywire. Pulitzer prize winning journalist Charlie Savage said that his repeated claim that the charges against Assange arose from a change in Administration rather than a changed understanding of Assange did not rely on what Miller said, because he had “been writing since 2010 about deliberations inside DOJ re wanting to charge Assange/WL,” linking to this story.

 

That is, Charlie presented as a defense to my complaint that he was misrepresenting what happened in 2016 and 2017 by pointing to reporting he did in 2010, which — I pointed out — is actually before 2013 and so useless in offering a better reason to cling to that 2013 detail rather than rely on more recent reporting. Because DOJ did not have the same understanding of WikiLeaks in 2010 as they got after Julian Assange played a key role in a Russian intelligence operation against the United States, obtained files from a CIA SysAdmin after explicitly calling on CIA SysAdmins to steal such things (in a speech invoking Snowden), attempted to extort the US with those CIA files, and then implicitly threatened the President’s son with them, Charlie Savage says, it’s okay to misrepresent what happened in 2016 and 2017. Charlie’s reporting in 2010 excuses his refusal to do reporting in 2021.

Given his snotty condescension, it seems clear that Charlie hasn’t considered that, better than most journalists in the United States, I understand the grave risks of what DOJ did with Assange. I’ve thought about it in a visceral way that a recipient of official leaks backed by an entire legal department probably can’t even fathom. But that hasn’t stopped me from trying to understand — and write accurately about — what DOJ claims to be doing with Assange. Indeed, as someone whose career has intersected with WikiLeaks far more closely than Charlie’s has and as someone who knows what people very close to Assange claim to believe, I feel I have an obligation to try to unpack what really happened and what the real legal implications of it are, not least because that’s the only way to assess where DOJ is telling the truth and whether they’re simply making shit up to take out Assange. DOJ is acting ruthlessly. But at the same time, at least one person very close to Assange told me explicitly she wanted me to misrepresent the truth in his defense, and WikiLeaks has been telling outrageous lies in Assange’s defense with little pushback by people like Charlie because, I guess, he thinks he’s defending journalism.

As I understand it, the entire point of journalism is to try to write the truth, rather than obfuscate it in an attempt to protect an institution called journalism. It does no good to the institution — either its integrity or the ability to demonstrate the risks of the Assange prosecution — to blame it all on Billy Barr rather than explore how and why DOJ’s institutional approach to Assange has changed over time.

Charlie Savage’s Obfuscations in the Service of Claiming Julian Assange Is a Journalist

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Everyone is fighting for press freedoms again, and therefore lots of people are misrepresenting the facts about Julian Assange’s prosecution in purported defense of press freedom again.

These are the paragraphs with which UK Judge Vanessa Baraitser distinguished what Julian Assange is accused of from what “ordinary investigative journalists” entitled to protection in the UK or European Union do.

99. As part of his assistance to Ms. Manning, [Assange] agreed to use the rainbow tools, which he had for the purpose of cracking Microsoft password hashes, to decipher an alphanumeric code she had given him. The code was to an encrypted password hash stored on a Department of Defence computer connected to the SIPRNet. It is alleged that had they succeeded, Ms. Manning might have been able to log on to computers connected to the network under a username that did not belong to her. This is the conduct which most obviously demonstrates Mr. Assange’s complicity in Ms. Manning’s theft of the information, and separates his activity from that of the ordinary investigative journalist.

100. At the same time as these communications, it is alleged, he was encouraging others to hack into computers to obtain information. This activity does not form part of the “Manning” allegations but it took place at exactly the same time and supports the case that Mr. Assange was engaged in a wider scheme, to work with computer hackers and whistle blowers to obtain information for Wikileaks. Ms. Manning was aware of his work with these hacking groups as Mr. Assange messaged her several times about it. For example, it is alleged that, on 5 March 2010 Mr. Assange told Ms. Manning that he had received stolen banking documents from a source (Teenager); on 10 March 2010, Mr. Assange told Ms. Manning that he had given an “intel source” a “list of things we wanted” and the source had provided four months of recordings of all phones in the Parliament of the government of NATO country-1; and, on 17 March 2010, Mr. Assange told Ms. Manning that he used the unauthorised access given to him by a source, to access a government website of NATO country-1 used to track police vehicles. His agreement with Ms. Manning, to decipher the alphanumeric code she gave him, took place on 8 March 2010, in the midst of his efforts to obtain, and to recruit others to obtain, information through computer hacking.

101. Mr. Assange, it is alleged, had been engaged in recruiting others to obtain information for him for some time. For example, in August 2009 he spoke to an audience of hackers at a “Hacking at Random” conference and told them that unless they were a serving member of the US military they would have no legal liability for stealing classified information and giving it to Wikileaks. At the same conference he told the audience that there was a small vulnerability within the US Congress document distribution system stating, “this is what any one of you would find if you were actually looking”. In October 2009 also to an audience of hackers at the “Hack in the Box Security Conference” he told the audience, “I was a famous teenage hacker in Australia, and I’ve been reading generals’ emails since I was 17” and referred to the Wikileaks list of “flags” that it wanted captured. After Ms. Manning made her disclosures to him he continued to encourage people to take information. For example, in December 2013 he attended a Chaos computer club conference and told the audience to join the CIA in order to steal information stating “I’m not saying don’t join the CIA; no, go and join the CIA. Go in there, go into the ballpark and get the ball and bring it out”.

Assange is not an “ordinary investigative journalist,” according to the judge who ruled that his extradition would not violate journalistic protections, because he allegedly:

  • Tried to help Manning hack a password
  • Solicited hacks of Iceland
  • Identified a vulnerability in a US server and encouraged people to use it
  • In a speech invoking WikiLeaks’ role in helping Edward Snowden to flee to what ended up being Russia, allegedly encouraged people to join the CIA with the express intent of stealing files from it

A key point for Baraitser is this was all happening at the same time, Assange was allegedly soliciting hacks in Iceland even as he attempted to help Manning crack a password, and Manning knew about the other hacking.

Charlie Savage mentions none of this in a story explaining that Julian Assange’s extradition and prosecution, “raised the specter of prosecuting reporters.” He doesn’t even mention the second superseding indictment at all, the one that lays out (among other things) the allegation that Assange entered in a conspiracy to hack Stratfor, a hack that at least six people on both sides of the Atlantic already did time for.

But the specter of prosecuting reporters returned in 2019, when the department under Attorney General William P. Barr expanded a hacking conspiracy indictment of Julian Assange, the WikiLeaks founder, to treat his journalistic-style acts of soliciting and publishing classified information as crimes.

From there, Charlie tells a narrative that WikiLeaks has been pushing as part of Assange’s extradition defense, a claim that because DOJ Public Affairs head Matthew Miller said, in November 2013, that DOJ could not distinguish Julian Assange from what the NYT does, that means that the Obama Administration continued to face that challenge for the remaining three years of the Obama Administration, long after Miller left, and right through the time WikiLeaks played a key role in a Russian intelligence-led attack on American democracy. As Charlie presents it — citing no sources or public records, and I asked him if he was relying on any and he didn’t respond — the decision to prosecute Julian Assange arose not so much from a subsequent investigation that came to distinguish Assange’s actions from those of journalists, but instead because the Trump Administration “was undeterred” about the prospect of damaging “mainstream news outlets.”

Obama-era officials had weighed charging Mr. Assange for publishing leaked military and diplomatic files, but worried about establishing a precedent that could damage mainstream news outlets that sometimes publish government secrets, like The Times. The Trump administration, however, was undeterred by that prospect.

For now, the First Amendment issues are on hold as Mr. Assange fights extradition from Britain. Soon after the Biden administration took office, the Justice Department pressed forward with that extradition effort in British court, leaving the charges in place.

But that was before Mr. Garland was sworn in — and before the latest uproar about the escalating aggression of the Justice Department’s leak investigation tactics prompted him to focus on drafting a new approach that, he testified, will be “the most protective of journalists’ ability to do their jobs in history.”

It’s Trump’s doing, not the result of further investigation, Charlie reports, as news.

The WikiLeaks narrative that Charlie repeats unquestioningly is inconsistent with an April 2017 report — one Assange’s journalism professor expert witness claims to have been unable to find with the magic of Google — that what came to distinguish Assange from other journalists was his role in helping Edward Snowden.

The US view of WikiLeaks and Assange began to change after investigators found what they believe was proof that WikiLeaks played an active role in helping Edward Snowden, a former NSA analyst, disclose a massive cache of classified documents.

We now know, four years later, that not just DOJ but even “mainstream news outlets” considered what WikiLeaks did to help Snowden something other than journalism.

Bart Gellman’s book (which was published before the most recent superseding indictment) not only lays out how WaPo’s lawyers told Gellman that he and Laura Poitras could not safely, under the law, play the role (which is referenced in the superseding indictment against Assange that Charlie doesn’t mention) that WikiLeaks would end up playing, helping Snowden get asylum in what ended up be an adversarial nation. Gellman even cites communications he and Poitras sent to Snowden in real time explaining that taking steps to help Snowden get asylum in what might be, and as it happens turned out to be, a hostile country was not journalism.

We had lawyered up and it showed. “You were clear with me and I want to be equally clear with you,” I wrote. “There are a number of unwarranted assumptions in your email. My intentions and objectives are purely journalistic, and I will not tie them or time them to any other goal.” I was working hard and intended to publish, but “I cannot give you the bottom line you want.”

Poitras wrote to him separately.

There have been several developments since Monday (e.g., your decision to leave the country, your choice of location, possible intentions re asylum), that have come as a surprise and make [it] necessary to be clear. As B explained, our intentions and objectives are journalistic. I believe you know my interest and commitment to this subject. B’s work on the topic speaks for itself. I cannot travel to interview you in person. However, I do have questions if you are still willing to answer them. [my emphasis]

In other words, WaPo’s own lawyers made it clear that helping an intelligence source obtain asylum in another country is not journalism and might, instead, be viewed by the US government as abetting espionage.

Given Charlie’s focus on the transition from the Trump to Biden Administration, there’s something else glaringly absent from his story: the official record on the government response to WikiLeaks’ role in the 2016 election attack. Admittedly, great swaths of that discussion remain redacted (which suggests there’s stuff we may not know), but the Senate Intelligence Committee’s report the Obama Administration’s response to the 2016 Russian interference campaign discussed how part of that process involved “develop[ing] a complete understanding of WikiLeaks.”

The executive branch struggled to develop a complete understanding of WikiLeaks. Some officials viewed WikiLeaks as a legitimate news outlet, while others viewed WikiLeaks as a hostile organization acting intentionally and deliberately to undermine U.S. or allies’ interests.

In other words, in 2016 — three years after the Miller quote that WikiLeaks has trained obedient journalists to parrot unquestioningly — the government came to some new “complete” understanding of WikiLeaks. One of the most important players in this process was then White House Homeland Security Advisor, Lisa Monaco. Her interview with the committee is cited repeatedly in the unredacted passages of the report.

Admittedly, Monaco’s views on how or whether her own understanding of WikiLeaks changed as part of that process do not appear in the report. The SSCI report redacts what those Obama officials came to understand about WikiLeaks in the waning days of the Obama Administration. But, in a story presented as “news,” it seems important to consider how that process might influence Monaco’s understanding of the case against Assange, given that one of the last things she did when last in government was struggle to respond to an attack on American democracy in part because the government treated WikiLeaks as a journalistic outlet for far too long during the attack. Whatever she believes, Monaco knows far more than Matthew Miller, or us, for that matter. We might not agree with her thus far non-public understanding of WikiLeaks, but even the four year old understanding of WikiLeaks she brought to her position as Deputy Attorney General surely will have a bigger influence on DOJ’s decisions about Assange going forward than what the Public Affairs guy said eight years ago.

It’s not that I disagree that some of the charges against Assange — particularly for publishing the names of US and Coalition informants — present a dangerous precedent. They do, and those risks are important to talk about, accurately and honestly. On that note, though, it’s again worthwhile to see how Baraitser distinguishes Assange (note, the circumstances of the release of the informant names is the area where Assange presented the most evidence to challenge the government’s evidence).

The defence submits that, by disclosing Ms. Manning’s materials, Mr. Assange was acting within the parameters of responsible journalism. The difficulty with this argument is that it vests in Mr. Assange the right to make the decision to sacrifice the safety of these few individuals, knowing nothing of their circumstances or the dangers they faced, in the name of free speech. In the modern digital age, vast amounts of information can be indiscriminately disclosed to a global audience, almost instantly, by anyone with access to a computer and an internet connection. Unlike the traditional press, those who choose to use the internet to disclose sensitive information in this way are not bound by a professional code or ethical journalistic duty or practice. Those who post information on the internet have no obligation to act responsibly or to exercise judgment in their decisions. In the modern era, where “dumps” of vast amounts of data onto the internet can be carried out by almost anyone, it is difficult to see how a concept of “responsible journalism” can sensibly be applied.

[snip]

Free speech does not comprise a ‘trump card’ even where matters of serious public concern are disclosed (see Stoll above), and it does not provide an unfettered right for some, like Mr. Assange, to decide the fate of others, on the basis of their partially informed assessment of the risks.

[snip]

The New York Times published the following condemnation on 25 July 2012:

“The Times and the other news organizations agreed at the outset that we would not disclose —either in our articles or any of our online supplementary material — anything that was likely to put lives at risk or jeopardize military or antiterrorist operations. We have, for example, withheld any names of operatives in the field and informants cited in the reports. We have avoided anything that might compromise American or allied intelligence-gathering methods such as communications intercepts. We have not linked to the archives of raw material. At the request of the White House, The Times also urged WikiLeaks to withhold any harmful material from its Web site.”

This is a distinctly European decision. That’s true because in Europe, unlike the US, such protections are tied to being a journalist. Plus Baraitser argued that under EU law, Assange’s release violated privacy protections that simply don’t exist in the US. Mind you, it’s one thing to say the NYT won’t publish details that might endanger military operations and another thing to say such revelations shouldn’t be protected by the First Amendment. Even if WikiLeaks is a “hostile organization acting intentionally and deliberately to undermine U.S. or allies’ interests,” (as SSCI described), that should not, itself, surpass the First Amendment consideration.

But it underscores the point. There are First Amendment problems with the publication charges and, to a lesser extent, the other Manning-focused ones. But Assange actually wouldn’t be the first person extradited from the UK significantly for publication activities, the same thing happened to Minh Quang Pham for the few months he spent as AQAP’s graphic designer. That precedent has not only gone virtually unnoticed, but did little to harm the press freedom of others in the US. Not only are the First Amendment risks of Assange’s prosecution not tied to whether or not Assange is a journalist, but the effort to reinvent both the history of his prosecution and what he is accused of to turn him into a journalist has led a bunch of journalists and press freedom advocates to violate the principles that are supposed to distinguish journalism.

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Flashbacks to the 2015 Campaign

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Katy Tur at SXSW
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Several years ago, I got Mrs Dr Peterr Katy Tur’s book Unbelievable: My Front-Row Seat to the Craziest Campaign in American History. Tur had been the NBC reporter assigned to the Trump campaign in 2015 and 2016, and listening to the impeachment coverage yesterday and the coverage this morning, one episode she recounted in the book came flashing back . . .

In Dec 2015, three days before Trump announced his pledge to institute a Muslim travel ban, Trump got rattled at a rally in Raleigh NC where protesters coordinated their efforts and threw him off his game, interrupting his speech every couple of minutes from different parts of the arena. Disgusted, Trump abruptly left the podium and started shaking hands offstage, and Tur sent out a simple tweet describing what had happened.

Right before lunch the next day, Hope Hicks wrote her to say “Katy, Mr. Trump thought your tweets from last night were disgraceful. Not nice! Best, Hope.” Shortly thereafter, the media gets the word about the travel ban Trump intended to announce that night, and that becomes the big story of the day with Katy doing liveshots all afternoon. That evening, before a rally inside the USS Yorktown (an aircraft carrier-turned-museum in Charleston harbor), Trump blasted her with four attack tweets in the span of four minutes.

Tur says the rally’s specific location was a surprise, in that it wasn’t held on the carrier deck but inside the belly of the ship, with the media crowded into a pen.

Yes, we are in a pen: a makeshift enclosure made of bicycle racks and jammed full of desks, reporters, and camera equipment. We’re in the middle of the carrier, slammed against the right side wall. As usual, almost all of Trump’s supporters are white and a lot of them are looking at us, not exactly kindly. The campaign and Secret Service force us to stay inside the pen while Trump is onstage. They even discourage bathroom breaks. None of them have a good explanation for why we’re kept separate from the supporters. Are we the threat or are they?

Trump starts his rambling speech, and the crowd eats it up. Then Trump opens up on the media.

“The mainstream media,” Trump says. “These people back here, they’re the worst. They are so dishonest.”

Hoots and hollers.

And then I hear my name.

“She’s back there, little Katy. She’s back there.”

Trump then calls her a liar several times, and a third rate reporter several times as well, before pivoting to a more general attack on the media. Finally, once he’s got the crowd sufficiently whipped up, he formally announces the Muslim ban, and the crowd which she described earlier as looking at her like “a large animal, angry and unchained” went nuts.

She goes live with Chris Matthews as Trump leaves the stage, and when she’s done with that, Chris Hayes takes over and wants to keep her on the air for the lead story on his show that followed Matthews’.

[Trump] supporters are taking their time to leave. They’re still whipped up. I know someone is going to start yelling at me as soon as I start talking. So I do what I always do. I find the pinhole deep in the back of the lens and I tune everything else out.

A couple of minutes later, I’m done. The crowd that had gathered behind my live shot is gone except for a few stragglers, yelling at me. They’re five feet away, held back by those lousy bicycle racks. A Trump staffer shoos them away. MSNBC has cleared me and my bosses want [her cameraman/sound tech] Anthony and me to get out of there as quickly as we can. I don’t quite understand why until we pack up and start to head out. A Trump staffer stops me and says “These guys are going to walk you out.”

I look over and see two Secret Service agents. Thank goodness. They walk Anthony and me along the gangway back to our car. It’s pitch black and I’m nervous. We’re parked with the crowd.

Once we’re moving, I take a look at my phone. My mom has called. And called. And called. I dial her back. “Are you okay? Where are you staying? Can someone stay with you? You need security!? She is crying. And it hits me.

I’m a target.

On that day in December 2015, the security professionals of the US Secret Service recognized that Trump was dangerously inciting a mob, and stepped in to protect the target he had singled out.

On January 6, 2021, Trump again incited a mob, and this time there was no one to stop them.

The Baraitser Decision’s Impact (or Not) on Journalism

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Before and since Joe Biden was inaugurated, Julian Assange supporters are unsurprisingly pushing for Biden to direct DOJ to adopt a different stance in the prosecution of Assange.

I suspect that’s unlikely. Indeed, while I’m not sure how any of this would work under the extradition law or be tempered by the UK’s rejection of extradition based on humanitarian grounds and ongoing appeal of that decision, I think it more likely that DOJ does one of the following:

  • Supersedes the existing indictment to incorporate (at least) Vault 7
  • Adds conspiring with Russia, potentially showing a timeline of doing so that goes back up to a decade
  • Charges non-national security crimes (the quid pro quo for the pardon and possibly extortion) as a way to get around the finding that he’d be put in a SuperMax
  • Indicts an omnibus conspiracy naming others, or
  • Asks the UK to prosecute Assange under the equivalent crimes (including, possibly, for Vault 7)

I think that not because I believe Joe Biden will be shitty or good on issues pertaining to journalism or because I have it in for Assange. I think that because unlike virtually everyone weighing in on this topic (Alexa O’Brien is the sole exception I know of) I’ve actually been covering what has happened to WikiLeaks cases in the US and the public record shows that the US government as a whole and DOJ as an institution — not Presidents Obama, Trump, or Biden — have come to the conclusion that WikiLeaks is not a journalistic institution.

To that end, I want to return to Vanessa Baraitser’s ruling in Assange’s case, because most people weighing in about how and why Biden might change course are misrepresenting what she said about two issues.

The first issue pertains to the impact of her ruling on journalism. Yes, Baraitser ruled for the US. But all she had to do on this issue was weigh whether the crimes alleged in the indictment have a parallel in UK law (which in this case would be the far more onerous Official Secrets Act) and are permitted under European Convention on Human Rights law’s Article 10.

With regards to the former, Baraitser could have just noted that the Official Secrets Act clearly criminalizes the publication of classified information like that covered by the indictment. That was what most people I know honestly expected (even if they didn’t say as much publicly).

She didn’t. With regards most charges, her ruling relied heavily on the intersecting conspiracies alleged in the superseding indictment that most Assange boosters have not read, one to violate the Espionage Act and the other to violate CFAA (hacking). For the bulk of the charges (the ones covered by Theory One in this post), Baraitser described what Assange does to include a hacking element.

Mr. Assange is accused of aiding and abetting Ms. Manning in her theft and disclosure of the information, as an accessory to her offending. The defence submits that no offence is committed by Mr. Assange unless he has engaged in a criminal activity separate from Ms. Manning’s act of whistle-blowing. However, in my judgment, Mr. Assange’s alleged activities went beyond the mere encouragement of a whistle-blower.

Tseehe [sic] design and purpose of WikiLeaks, it is alleged, was to obtain protected information and publish it. Mr. Assange was willing to achieve this, it is alleged, through computer hacking, both by engaging in hacking activities himself but also by recruiting and soliciting others to do the same. This is amply demonstrated in the request in his work with various hacking groups. His work with Ms. Manning, it is alleged, was part of this plan.

[snip]

At the same time as these communications, it is alleged, he was encouraging others to hack into computers to obtain information. This activity does not form part of the “Manning” allegations but it took place at exactly the same time and supports the case that Mr. Assange was engaged in a wider scheme, to work with computer hackers and whistle blowers to obtain information for Wikileaks. Ms. Manning was aware of his work with these hacking groups as Mr. Assange messaged her several times about it. For example, it is alleged that, on 5 March 2010 Mr. Assange told Ms. Manning that he had received stolen banking documents from a source (Teenager); on 10 March 2010, Mr. Assange told Ms. Manning that he had given an “intel source” a “list of things we wanted and the source had provided four months of recordings of all phones in the Parliament of the government of NATO country-1; and, on 17 March 2010, Mr. Assange told Ms. Manning that he used the unauthorised access given to him by a source, to access a government website of NATO country-1 used to track police vehicles. His agreement with Ms. Manning, to decipher the alphanumeric code she gave him, took place on 8 March 2010, in the midst of his efforts to obtain, and to recruit others to obtain, information through computer hacking

[snip]

In relation to Ms. Manning, it is alleged that Mr. Assange was engaged in these same activities. During their contact over many months, he encouraged her to obtain information when she had told him she had no more to give him, he identified for her particular information he would like to have from the government database for her to provide to him, and, in the most obvious example of his using his computer hacking skills to further his objective, he tried to decipher an alphanumeric code she sent to him. If the allegations are proved, then his agreement with Ms. Manning and his agreements with these groups of computer hackers took him outside any role of investigative journalism. He was acting to further the overall objective of WikiLeaks to obtain protected information, by hacking if necessary. Notwithstanding the vital role played by the press in a democratic society, journalists have the same duty as everyone else to obey the ordinary criminal law. In this case Mr. Assange’s alleged acts were unlawful and he does not become immune from criminal liability merely because he claims he was acting as a journalist.

Thus, even though she didn’t have to do so to rule for the US on this point, she nevertheless distinguished what Assange does from what journalists do because, as alleged in the indictment and in actual fact, hacking is such a central part of what Assange does. It’s not clear she would have gotten to this ruling without the language included in the superseding indictment (a superseding indictment which, again, virtually all Assange boosters either willfully ignore or are genuinely ignorant exists). But as it happened, she relied heavily on the language in the superseding indictment and very clearly distinguished what Assange does from what journalists do.

Of particular interest (because this is the language in the indictment that I believe sets up adding Vault 7 to the indictment), Baraitser accepted the US government’s description of Assange recruiting people to hack.

Mr. Assange, it is alleged, had been engaged in recruiting others to obtain information for him for some time. For example, in August 2009 he spoke to an audience of hackers at a “Hacking at Random” conference and told them that unless they were a serving member of the US military they would have no legal liability for stealing classified information and giving it to Wikileaks. At the same conference he told the audience that there was a small vulnerability within the US Congress document distribution system stating, “this is what any one of you would find if you were actually looking”. In October 2009 also to an audience of hackers at the “Hack in the Box Security Conference” he told the audience, “I was a famous teenage hacker in Australia, and I’ve been reading generals’ emails since I was 17” and referred to the Wikileaks list of “flags” that it wanted captured. After Ms. Manning made her disclosures to him he continued to encourage people to take information. For example, in December 2013 he attended a Chaos computer club conference and told the audience to join the CIA in order to steal information stating “I’m not saying don’t join the CIA; no, go and join the CIA. Go in there, go into the ballpark and get the ball and bring it out”.

Again, it’s not just that Assange solicited people to share classified information with him (which journalists do), but that he also explicitly encourages people to hack to get it.

And while the way Baraitser distinguished Assange from others in her ruling on the three most dangerous charges, publishing informants’ identities (Theory Three in this post), is less compelling, she nevertheless went beyond a ruling on the act itself. She distinguished Assange’s publication online (in bulk, though that distinction is less clear and not one of great comfort to someone who also publishes online) from traditional journalism.

More importantly, Baraitser talked about the balancing involved in Article 10 (particularly with regards to the right of private life).

The defence submits that, by disclosing Ms. Manning’s materials, Mr. Assange was acting within the parameters of responsible journalism. The difficulty with this argument is that it vests in Mr. Assange the right to make the decision to sacrifice the safety of these few individuals, knowing nothing of their circumstances or the dangers they faced, in the name of free speech. In the modern digital age, vast amounts of information can be indiscriminately disclosed to a global audience, almost instantly, by anyone with access to a computer and an internet connection. Unlike the traditional press, those who choose to use the internet to disclose sensitive information in this way are not bound by a professional code or ethical journalistic duty or practice. Those who post information on the internet have no obligation to act responsibly or to exercise judgment in their decisions. In the modern era, where “dumps” of vast amounts of data onto the internet can be carried out by almost anyone, it is difficult to see how a concept of “responsible journalism” can sensibly be applied.

[comparison with other outlets and their condemnation of him]

The law already constrains in various ways what may be published in order to avoid damage to private interests. For example, the High Court recently awarded damages against the Associated Newspaper Ltd, after the MailOnline website published an article , reporting on the arrest of the claimant in the aftermath of the Manchester Arena bombing, and disclosing details capable of leading to his identification (Alaedeen Sicri v Associated Newspapers Limited, [2020] EWHC 3541 (QB)). Free speech does not comprise a ‘trump card’ even where matters of serious public concern are disclosed (see Stoll above), and it does not provide an unfettered right for some, like Mr. Assange, to decide the fate of others, on the basis of their partially informed assessment of the risks.

This was not necessarily a national security stance. Rather, in language that would apply equally to Assange’s indiscriminate publication of the DNC and Podesta emails (as well as the publication of the Turkish and Saudi emails), Baraitser argued that Assange’s publication in bulk was not protected because it did not and could not properly weigh the risk to others.

This part of the ruling, in particular, would not translate into US law. There is no such privacy balance in the US outside of much weaker defamation laws. And so this part of the ruling does not offer much comfort with regards the existing charges as precedent in the US context.

But that’s an issue Assange supporters have with US law, not with the Baraitser ruling.

With regards to the impact on journalism, Baraitser ruled that the charges before her (which contrary to a lot of WikiLeaks propaganda, doesn’t include the Collateral Murder video) were distinguishable from what journalists do.

As such, unless press organizations want to claim hacking is within the job description of journalists, this ruling should not chill journalism.

There’s certainly real concern about the charges as precedent in the US, particularly the publishing charges. But that’s different than the Baraitser ruling itself.

Update: Corrected ECHR thanks to Chetnolian.

The Intercept’s Silence about Edward Snowden’s Inclusion in Julian Assange’s Charges

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Back in October, I beat up The Intercept’s Micah Lee for writing a post that purported to cover the “crumbling” hacking case against Julian Assange by working from an outdated indictment rather than the superseding one that added 50-some paragraphs to the overt acts alleged in the single count for conspiracy to hack. Micah made a half-assed and still factually inaccurate “correction” (without crediting me for pointing out the embarrassing error) that utterly misunderstands US conspiracy law, and claimed events since 2011 had tolled whereas the original password hacking attempt had not.

In the 2020 indictment, attempting to portray Assange as a hacker rather than a journalist, the government listed other instances of Assange allegedly directing hacking activity by people other than Manning — but did not add to the charges against him, prompting a discussion of whether the statute of limitations on the alleged new crimes had expired. Assange’s lawyers called the newest evidence “‘make weight’ allegations designed to bring all of this back within the limitation period.” It remains to be seen if the U.S. government will pursue this reaching strategy. At the moment it seems that these supplemental allegations are peripheral to the first, and only clearly chargeable, instance described by the government that could be conceived as a conspiracy to commit a computer crime — providing marginal support for a case which is, at its core, already weak.

In short, having been alerted to the superseding indictment, The Intercept’s resident expert on hacking utterly dodged the allegations made in that expanded charge, not so much as mentioning what they were.

At the time, I promised to return to Micah’s embarrassing piece after I finished some more pressing issues.

It turns out, the problem at The Intercept is broader than just Micah’s piece.

A recent post from Charles Glass suggests that if President Biden were to “remove the Espionage Act charges against Assange,” it would amount to the withdrawal of his extradition application entirely.

WHEN JOE BIDEN becomes president of the United States on January 20, a historic opportunity awaits him to demonstrate America’s commitment to the First Amendment. He can, in a stroke, reverse four years of White House persecution of journalism by withdrawing the application to extradite Julian Assange from Britain to the U.S.

[snip]

By removing the 1917 Espionage Act charges against Assange, Biden would be adhering to the precedent established by the administration in which he served for eight years as vice president. President Barack Obama’s Department of Justice investigated Assange and WikiLeaks for three years until 2013 before deciding, in the words of University of Maryland journalism professor Mark Feldstein, “to follow established precedent and not bring charges against Assange or any of the newspapers that published the documents.” Equal application of the law would have required the DOJ to prosecute media outlets, including the New York Times, that had as large a hand in publicizing war crimes as did Assange himself. If prosecutors put all the editors, publishers, and scholars who disseminated WikiLeaks materials in the dock, there would not be a courtroom anywhere in America big enough to hold the trial. Obama decided against it, knowing it would represent an unprecedented assault on freedoms Americans hold dear.

Glass went on to repeat the grossly erroneous claims about the history of Assange’s prosecution made at the extradition hearing by journalism history professor Mark Feldstein, who literally submitted a filing to the hearing admitting he wasn’t familiar with what the public record actually says about it.

That Glass ignored the hacking charge against Assange is remarkable given that, along with the erroneous piece from Micah, an earlier post from him is one of the few that addressed the (now superseded) CFAA count.

In addition, The Intercept did a Deconstructed show on the hearing in October. It, too, adopted the erroneous fairy tale about why the Trump Administration charged Assange when the Obama Administration did not. And while it introduced the allegation that Assange is a hacker, it then reverted to the so-called New York Times test, suggesting that if the publishing activities of Assange cannot be distinguished from the NYT’s, then it means Assange cannot and should not be prosecuted.

RG: Supporters of the prosecution of Assange make a number of arguments: That Assange is not a “real” journalist. He’s a hacker. He’s a traitor. He recklessly endangered lives and so he deserves no protection as a journalist. All of this is wrong.

The First Amendment isn’t worth the parchment it’s written on if it’s not respected, and defended, in the broader culture of the United States. People have to support it. Once that support erodes, it tends not to come back. That’s why authoritarians, when they want to curtail a particular freedom, usually find the most unsympathetic target they can, hoping nobody will come to his defense. Then once a new precedent is established, all bets are off. With Assange, Trump and Barr think they’ve found just such a man. It’s up to us not to take the bait.

[snip]

Kevin Gosztola: I think the key thing about Trevor Tim[m]’s testimony is destigmatizing the work of WikiLeaks, or even demystifying it. Because what you have through the U.S. government’s targeting of Wikileaks over the past decade is a concerted effort to make it seem like what WikiLeaks does is not journalism. And so the counter to that through the defense’s case is to make it abundantly clear that this is not reasonable; that in fact, everything that WikiLeaks does, from when it accepts the documents, when it tries to authenticate them, to when it makes media partnerships, to also make sure that names are redacted, to make sure that sensitive details are understood fully before the documents are published. And I think you see that this is the way to keep investigative journalism robust in the 21st century.

RG: I thought Trevor’s point was interesting that The New York Times does not get a press badge from the U.S. government. You know, it isn’t, and it shouldn’t be, up to the U.S. government to decide who is and who is not a journalist.

And the idea of who is or is not a responsible journalist is different from what is illegal or legal conduct, which I also thought was important because the prosecution wants to say: Well, he’s an irresponsible person, so therefore, he doesn’t have these protections. And the counter is no, it’s not up to the government to say what’s responsible or irresponsible journalism. You know, the government creates laws, and if the laws are violated, then you can start your prosecution. But if not, you can’t. And it’s never been against the law to publish classified information. It’s against the law to leak it, if you have access to it. But it’s not against the law to publish it.

As I have said over and over, I agree that the Espionage Act charges against Assange, as charged, pose a real threat to journalism (though so do the Trump DOJ’s other prosecutions of Espionage as a conspiracy, including the Henry Kyle Frese case where DOJ used a Title III wiretap to obtain evidence, and the Natalie Sours Edwards case where the Treasury Department attempted to achieve prior restraint on Jason Leopold, prosecutions that have gotten far less attention).

But I also think the sheer amount of shitty propaganda and outright lies people are telling in service of Julian Assange do their own damage to journalism. It is possible to discuss the risk that Assange’s prosecution on the Espionage charges poses without ignoring large swaths of the public record or even, as The Intercept has done in these three pieces and much of their earlier coverage, the actual charges.

The Intercept’s silence on the superseding indictment is all the more notable because of the way its founding act plays a part.

As I laid out here and here, the superseding charge incorporates a number of other overt acts in the CFAA conspiracy, going through 2015 (and seemingly setting up another superseding indictment that covers publications from 2015 through 2017). The new overt acts include a number of things that absolutely distinguish Assange and WikiLeaks from journalists and publishers. Of particular note, they allege that Julian Assange:

  • Entered into an agreement with individuals involved in Gnosis and Lulzsec before those individuals carried out the hack of Stratfor and remained in the agreement during and after the hack. This is a case where five of the people Assange allegedly entered into a conspiracy with have already pled guilty, in both the UK and US (as well as Ireland), making the primary proof required at trial that Assange did enter into agreement with the other co-conspirators, not that the hack occurred.
  • Directed Siggi to hack a WikiLeaks dissident to destroy incriminating evidence implicating Assange. While I’m less certain whether Siggi took steps to advance this conspiracy (and Siggi has credibility problems as a witness), I know of multiple different allegations that dissidents, sources, and competing outlets were similarly targeted for surveillance, with one WikiLeaks dissident claiming to have been hacked and threatened after a political split with the group.
  • Helped Edward Snowden flee, both by sending Sarah Harrison to facilitate his flight and creating distractions, and then using WikiLeaks’ assistance as a means to recruit further hackers and leakers.

The last one seems particularly irresponsible for The Intercept to suppress as they have, particularly given four other details:

  • Snowden’s description of setting up Tor bridges for Iranians with other Tor volunteers in the extended Arab Spring, making it highly likely he had a relationship with Jake Appelbaum before he took his NSA job in Hawaii.
  • Bart Gellman’s description of how Snowden worked to “optimize” his own outcome to encourage others to leak, mirroring Harrison’s stated motive for helping him flee.
  • The government’s suggestion that Daniel Everette Hale — Jeremy Scahill’s alleged source for his drone reporting — was inspired to leak by Snowden.
  • Snowden’s own (recent) treatment of three Intercept sources — along with Hale, Reality Winner and Terry Albury — as a group meriting a Trump pardon, something that will likely make Hale’s defense at trial next year more difficult.

The government’s theory about Snowden as a recruitment tool is really problematic (though I suspect the government plans to make it a lot more specific after inauguration, even before Hale’s trial next year). But it is also the case that publishers don’t usually help their sources flee as a way to ensure they’ll recruit future leakers and hackers (indeed, in his book, Gellman talked at length about how careful he was to avoid crossing that line when Snowden tried to trick him into it).

One can argue that WikiLeaks was heroic for doing so. One can argue that the US empire has what’s coming to it and so WikiLeaks was right to help Snowden flee. But one can’t argue that the overt acts alleged in the CFAA count of the superseding indictment are things that journalists routinely do. And, if proven, that gets the government well beyond the New York Times test.

Importantly, if you’re engaging in a debate about Assange’s fate but ignoring credible allegations that Assange did a bunch of things that journalists do not do, you should not, at the same time, claim you’re serving journalism. You’re serving propaganda (particularly if you’re also telling a fairy tale about what changed in 2016 and 2017).

All the more so if you’re The Intercept. The government has alleged that one thing that distinguishes Julian Assange from journalists — and they’re right — is that he sent someone halfway around the world to save the guy who created the opportunity to create The Intercept in the first place. Unless Assange is pardoned before Trump leaves (and maybe even then, since many of the acts Assange is charged with are more obviously illegal in the UK), this allegation is going to remain out there.

The founding possibility for The Intercept has now been included as an overt act in a hacking indictment. One way or another, it seems The Intercept needs to address that.

After Wailing That No One Was Reporting on the Hunter Biden Laptop, Glenn Greenwald Is Now Wailing because Ben Collins Did

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As I’ve addressed both here and on Twitter (post 1, post 2), Glenn Greenwald has written at least three error-ridden posts wailing that no one has written about the Hunter Biden laptop that Steve Bannon and Rudy Giuliani used to seed an attempted attack on Joe Biden.

In an apparent attempt to generate more subscribers to his Substack of non-stop Hunter Biden laptop posts, Glenn continues to wail about people doing actual journalism. Yesterday, for example, he attacked Brandy Zadrozny (who was recently targeted directly by Glenn’s buddy Tucker Carlson) and Ben Collins, claiming that their reporting on organized disinformation efforts,  “is not journalism: it’s quashing of dissent.”

Collins responded with a long thread of the reporting that he had done over the last year, describing along the way the victims of such disinformation.

Among those stories, Collins included a story where he reported that a month before the Hunter Biden laptop was “discovered,” a fake person was pushing it.

Just days before the election, then, Collins was doing precisely what Glenn was demanding, reporting on the Hunter Biden laptop. Only, he wasn’t telling the precise story Glenn wanted told about the “laptop.”

One month before a purported leak of files from Hunter Biden’s laptop, a fake “intelligence” document about him went viral on the right-wing internet, asserting an elaborate conspiracy theory involving former Vice President Joe Biden’s son and business in China.

The document, a 64-page composition that was later disseminated by close associates of President Donald Trump, appears to be the work of a fake “intelligence firm” called Typhoon Investigations, according to researchers and public documents.

The author of the document, a self-identified Swiss security analyst named Martin Aspen, is a fabricated identity, according to analysis by disinformation researchers, who also concluded that Aspen’s profile picture was created with an artificial intelligence face generator. The intelligence firm that Aspen lists as his previous employer said that no one by that name had ever worked for the company and that no one by that name lives in Switzerland, according to public records and social media searches.

One of the original posters of the document, a blogger and professor named Christopher Balding, took credit for writing parts of it when asked about it and said Aspen does not exist.

Glenn replied to Collins’ thread with a ridiculously dickish response, then tried to suggest that because Collins is paid by NBC, he must be a fraud.

To recap then. Glenn has spent weeks suggesting no one at big media outlets was reporting on the Hunter Biden laptop.

Collins noted that he did.

Glenn’s response to was to call him a fraud because he did that reporting at NBC.

I guess it wasn’t reporting he was really after.

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