The Trump Administration Wants the Power to Decide Who's a Journalist

With the indictment of Wikileaks co-founder Julian Assange on espionage charges Thursday, Trump administration prosecutors are attempting to assert the power to determine who is and who is not a journalist.

It’s a reminder that in America there is no accepted definition for what journalism is, and that journalists largely operate under the same protections as any citizen: the First Amendment. Instead, news organizations rely on a set of professional, legal, and political norms to safely function. And the Obama and Trump administrations have blown up many of them.

Assange’s indictment is just the most stark example.

“This is a five-alarm fire for the First Amendment,” said Jonathan Peters, a media law professor at the University of Georgia. “This administration has no credibility to decide who's a journalist.”

The media world has long worried that the U.S. government would take up the question of whether WikiLeaks co-founder Julian Assange is a journalist. Those fears became reality when the Department of Justice slapped Assange with an 18-count indictment under the Espionage Act, explicitly arguing that WikiLeaks is not a legitimate publisher.

It marks the first time the U.S. has ever charged a journalist under the World War I-era law, which curbs speech deemed damaging to national security.

READ: The U.S. just charged Julian Assange under the Espionage Act

The Obama and Trump Administrations have prosecuted an unprecedented number of national security leakers under the Espionage Act. While there’s no carve-out protecting journalists reporting on the activities of government in the public interest, federal prosecutors have never gone so far as to indict someone who published classified leaks or other illegally obtained information.

“They’ve upped the ante now, ”said Jane Kirtley, director of the University of Minnesota Silha Center for the Study of Media Ethics and Law. “The government has been dancing around this issue for many years. I think selecting someone like Julian Assange is a very deliberate step by the administration.”

The indictment, which centers on Assange’s 2010 interactions with former Army intelligence analyst Chelsea Manning, paints WikiLeaks as an illegitimate media outlet. DOJ officials attempted to hammer the point home in a briefing with reporters yesterday, claiming that Assange is no journalist.

Legal scholars and press freedom groups contend that’s a distinction without a difference; WikiLeaks commits acts of journalism. Assange’s prosecution, they argue, is a ploy to give government more power over independent media.

“Obtaining and publishing information that the government would prefer to keep secret is vital to journalism and democracy,” said Dean Baquet, executive editor of The New York Times, which has published documents obtained by WikiLeaks. “The new indictment is a deeply troubling step toward giving the government greater control over what Americans are allowed to know."

In many ways the 47-year-old Australian’s career has been building up to this moment. WikiLeaks represented a new brand of media organization — part hacker collective, part publisher of massive troves of classified information. The documents it published revealed national security abuses and inner workings of governments around the world.

Yet many mainstream journalists scorned Assange for publishing unredacted files and for what they saw as an anti-American activist streak. His self-imposed exile in a small room in London’s Ecuadorean embassy since 2012 — an attempt to avoid sexual assault charges in Sweden — made him a cartoonish anti-hero for transparency and accountability.

Assange’s saga appeared to be coming to a conclusion in April, when British authorities hauled him out of the embassy to face bail-skipping charges and U.S. prosecutors indicted him as part of an alleged hacking conspiracy with Manning. But the Justice Department’s superseding indictment filed in the Eastern District of Virginia Thursday dialed up the government’s allegations to new heights.

It portrays Assange as an active conspirator in Manning’s attempts to illegally obtain classified diplomatic cables and other files about the U.S. wars in Iraq and Afghanistan. Prosecutors allege that the WikiLeaks co-founder aided Manning in her attempt to break into a Pentagon computer system to download additional documents.

Their shared goal was to subvert the U.S. government, the indictment claims, and publication of the documents endangered lives. Attorneys tell VICE News that those two arguments around the motivations and impacts of journalism could be key points of contention in the coming legal battle. The question looming over it all is whether the government should have much say in either.

“I don’t think there’s any way to understand this indictment except as a frontal attack on press freedom,” said Jameel Jaffer, director of the Knight First Amendment Institute at Columbia University.

The indictment brings that threat into focus. Much of the charging document describes run-of-the-mill reporting techniques: coaxing sources for additional access; protecting their identities; and soliciting and publishing sensitive information they provide. It’s left news organizations and media lawyers worried that other journalists who cover national security could be next.

“The administration has gone from denigrating journalists as ‘enemies of the people’ to now criminalizing common practices in journalism that have long served the public interest,” Marty Baron, executive editor of The Washington Post, said in a statement.

The government has previously considered charging journalists under the Espionage Act — but always pulled back. In 1942, a federal grand jury declined to indict a Chicago Tribune reporter who hinted that the U.S. military had cracked Japanase communication codes in a story about the Battle of Midway. The Obama Administration, which charged several government employees under the law, looked into similar charges against Assange before dropping the idea.

The Justice Department under Trump, who has made media hatred central to his political movement, blew up that norm. Whether Assange’s case sets a new precedent, or legal institutions return to their previous standards for press protections, remains to be seen.

“Career prosecutors are not going to look at a case like this as a vehicle for impacting the well-respected role of traditional media,” said Jacob Frenkel, a former federal prosecutor and now a white-collar defense attorney. “In reality, career prosecutors still can be trusted, as can experienced judges, to make well-reasoned decisions that will protect our valued constitutional rights, of which the media and its right gather information is central.”

For now, Assange sits in a high-security prison in London as his complex web of legal battles plays out. Swedish authorities’ recent announcement that they reopened a sexual assault investigation into the WikiLeaks co-founder put their extradition request on a collision course with that of the U.S.

British officials will have an important say in where Assange goes from here. While it remains unclear whether the new charges will affect the extradition process, which could drag on for years, debate around the Espionage Act could play a role.

“If in England or elsewhere, the courts feel that the law in the requesting country is wrong, that could be a reason not to extradite,” said Stefano Maffei, a professor who specializes in European extradition law at the University of Parma in Italy. “I don’t see any case that’s like this case. The nature of the alleged crime is unique.”

Greg Walters contributed reporting.

Cover: WikiLeaks Founder Julian Assange leaves Southwark Crown Court in a security van after being sentenced on May 1, 2019 in London, England. Wikileaks Founder Julian Assange, 47, was sentenced to 50 weeks in prison for breaching his bail conditions when he took refuge in the Ecuadorian Embassy in 2012 to avoid extradition to Sweden over sexual assault allegations, charges he denies. The UK will now decide whether to extradite him to US to face conspiracy charges after his whistle-blowing website Wikileaks published classified US documents. (Photo by Jack Taylor/Getty Images)