It’s an oft-heard refrain from high-profile criminal defendants: that the case against them is entirely “political.” That contention rarely carries the day in a court of law, but Julian Assange’s case may be the rare one where it finds some traction.
Judges normally have little patience for such arguments, but legal experts say the WikiLeaks founder could have a better shot because of the extradition process needed to bring him to the U.S. for trial on the computer hacking indictment unsealed Thursday — just after he was dragged out of the Ecuadorian Embassy in London by British police.
Like most extradition treaties, the U.S.-U.K. one excludes “political offenses.” There’s no clear definition of that term, but it is known to cover crimes like treason, espionage and sedition, as well as offenses that are directed in some way against the power of the state.
The exception for “political offenses” helps explain the rifle-shot nature of the Assange indictment unveiled Thursday. While cases brought by special counsel Robert Mueller have often involved sprawling “speaking indictments” that run to dozens of pages, Assange’s indictment comes in at just six pages and charges him with a single count of conspiracy to commit computer intrusion.
“Although he’s been charged with conspiracy to gain access to a government computer … and that’s not a political offense, I would suspect his defense will argue it’s all about espionage,” said John Bellinger, the State Department’s legal adviser under President George W. Bush.
Making that argument won’t require a lot of speculation or trying to persuade judges to connect the dots based on some sea of news clippings about Russia, Assange and the 2016 election. The indictment against Assange specifically mentions that the alleged hacking was “in furtherance” of two different provisions of the Espionage Act involving obtaining and disclosing classified information.
“It’s clear his defense counsel will jump on those references to violations of the espionage laws and say, ‘Therefore, he is being sought for extradition for political offenses,’” Bellinger said.
In addition, Chelsea Manning, the former U.S. intelligence analyst whom Assange is accused of helping to access Defense Department computers, was convicted at a 2011 court-martial on six Espionage Act counts involving classified government reports published by WikiLeaks. And even the hacking charge leveled at Assange on Thursday includes a violation that applies solely to “national defense” information and tracks closely with wording in the Espionage Act — one of the key statutes U.S. authorities use to prosecute leaks.
Legal experts said the use of the hacking charge has a two-fold purpose: helping ease Assange’s extradition by making the central charge sound more like a common crime, and trying to reassure journalists and First Amendment advocates that Assange isn’t being prosecuted simply for publishing classified information — an activity that mainstream news outlets regularly engage in.
“It is a rifle shot to steer clear of a case that would worry the average journalist that they could be prosecuted over stories that make it into The New York Times, The Washington Post and POLITICO all the time,” said Ashley Deeks, a University of Virginia law professor.
The timing of the charges could also provide fodder for Assange’s defense to fight extradition. The indictment was returned in March 2018 and kept under seal until Thursday. But all the acts mentioned took place back in 2010, and virtually all of them were known to the government by the time Manning — who at the time was known as Army Pfc. Bradley Manning — went before a pretrial hearing in a military court in 2011.
That could fuel arguments that what’s motivating the charges isn’t anything that happened in 2010, but rather events from 2016 that were more overtly political in nature like WikiLeaks’ role in publishing hacked Democratic Party emails in that year’s presidential election — and Russia’s alleged involvement in the hack.
However, while many of the allegations against Assange have been public for almost a decade, there remained some ambiguity at Manning’s 2013 court-martial whether Assange was actually the person who had the online exchanges with Manning. Manning said at the time that she suspected she was in touch with Assange or someone close to him, but wasn’t really sure.
“What’s needed is evidence that would prove every element of the crime beyond a reasonable doubt. That’s my assumption — that they had to get to a level of confidence that they could prove it was Assange who Manning was communicating with,” said Mary McCord, who served in a top post at the Justice Department’s National Security Division from 2014 through the early months of the Trump administration.
Other former officials say they suspect that the Obama administration may have been reluctant to bring a case against Assange because of a controversy that erupted in 2013 over the Justice Department’s investigative techniques involving Fox News and Associated Press journalists enmeshed in leak investigations.
The imbroglio led Eric Holder, the attorney general at the time, to pledge that no journalist would be prosecuted “for doing his or her job.” However, McCord said this would not have ruled out a case for hacking, like the one unsealed Thursday against Assange.
“I don’t think anybody thought that when Attorney General Holder said that, he thought their job was to hack into classified computer systems,” said McCord, now a law professor at Georgetown. “I was never in a room where anybody was hand-wringing about that. I don’t think there would have been any hesitation to file a change like that if there was sufficient evidence.”
Assange’s attorneys are also likely to argue that the relatively modest single-count indictment against him is just a placeholder intended to secure his transfer to the U.S., where he could be hit with more serious charges related to the 2016 election or to obtaining and publishing a set of documents the following year known as “Vault 7,” detailing CIA hacking techniques.
Press reports on Thursday quoted anonymous U.S. officials saying the charges against Assange could be revised or expanded. In addition, several lawmakers may have complicated Assange’s extradition on the current indictment by publicly suggesting it should be a vehicle to punish him for being a tool of Russia.
“Unfortunately, whatever Assange’s intentions when he started WikiLeaks, what he’s really become is a direct participant in Russian efforts to undermine the West and a dedicated accomplice in efforts to undermine American security,” Sen. Mark Warner (D-Va.) said.
While Assange faces a maximum possible penalty of five years in prison on the current charge, Sen. Ben Sasse (R-Neb.) seemed to be pressing for a far more serious case.
“Julian Assange has long been a wicked tool of Vladimir Putin and the Russian intelligence services,” Sasse wrote on Twitter. “He deserves to spend the rest of his life in prison.”
The U.S.-U.K. treaty contains provisions aimed at preventing a bait-and-switch, where a suspect is extradited on one set of charges, only to have them swapped for another. But executive branch officials in the U.K. could waive that, leaving the door open to additional or new charges against Assange.
It is likely the charges would still have to meet muster under other parts of the treaty, however, so offenses considered political would be off the table.
If the U.S. tried to make such a move after obtaining Assange, it’s unclear whether the American courts would step in or leave the issue to Justice Department officials and their counterparts in the Britain.
“Who decides could be important here,” Deeks said.
She said Justice Department officials must realize there’s at least some possibility that the British courts turn down the extradition request.
“It’s possible the Trump administration has decided that the juice is worth the squeeze, and that even if they don’t get him extradited there’s some chance of succeeding by making a show of disapproval of what he did,” the professor said.
Bellinger, now a partner at the law firm Arnold & Porter, said British courts tend to have a broader view of what constitutes political offenses than do American courts. However, he said he would not be surprised if the U.S. and Britain agreed or had already agreed to limit the scope of any future charges in order to try to increase the chances of the British courts approving the extradition.
“In this case, it may be — in order to get Assange extradited to the U.S. — just easier to focus on things the U.S. and U.K. governments can agree on, even if it means leaving some other things off the table,” he said. “The Trump administration may not be eager to charge him with interference in the election when you’ve got these pre-existing offenses dating back to 2010 with Chelsea Manning. Frankly, this may be a clearer pathway to charges and a conviction.”
A Justice Department spokesman declined to comment for this article.
Assange’s camp did not respond to a message seeking comment about strategy for the extradition process, but a legal adviser to Assange said they were gearing up for a fight in the British courts. The adviser, Geoffrey Robertson, also said Thursday that the claim that Assange agreed to aid Manning in hacking a password didn’t transform the case.
“Any American journalist who would buy a source a cup of coffee would be helping a source,” Robertson said on CNN.
A British magistrate is expected to consider the extradition request at a hearing set for May 2. Whatever ruling comes out of that hearing could be appealed through the British courts and perhaps even to the European Court of Human Rights. (Despite Britain’s Brexit vote, the U.K. government has agreed to remain under that court’s jurisdiction, at least for now.)
Even if Assange is brought to the U.S., he could try making many of the same arguments in U.S. courts. So, the seven years of delay he brought on by holing up in the Ecuadorian Embassy could lead to a new chapter that also drags on for years.
“One thing is for sure: This will be litigated for a long time,” Bellinger said.
Article originally published on POLITICO Magazine
Beatriz Simpkins 