[Bartweiss]

> I also think it's a bizarre exagerration to argue that an attempted prosecution of Assage would result in "broad new powers to put Trump’s media 'enemies' in jail".

I think this depends almost entirely on what Assange is prosecuted for.

It's true that prosecutions of reporters began (after a post-Nixon lull) under Bush, and largely don't rely on anything that an Assange trial would determine. But there are at least two things Assange could be tried for which would seriously erode protections for reporters.

The article points out that the NYT has published classified information - that's basically the problem. Those publications aren't actually guaranteed to be legal. The Pentagon Papers case rejected a prior restraint argument for barring publication, but left open both the possibility of other prior restraint suits and the possibility of simple charges for mishandling classified information. A court case against Assange could be used to set either of those precedents, settling a currently-ambiguous question about press freedoms in the US under a Supreme Court that might well walk back the NYT v US interpretation. (And Assange can be indicted while the NYT isn't because that's discretionary - the DoJ is free to charge whoever they think is most likely to get them a convenient court ruling, however hypocritical that may be.)

Less likely but more even more frightening, some Congressmen have previously talked about charging Assange under the Espionage Act. In fact, a few people have specifically talked about having him subpoenaed without charge so that he could be extradited easily, then invoking Espionage Act once the capital punishment provision wouldn't cause complications. Convicting a non-resident non-citizen of espionage for sharing someone else's leaks would be a fairly shocking decision, but if it happened it would extend legal risk to reporters worldwide.

Edit: I was wrong about the lack of precedent here. A noncitizen has already been successfully charged for acts taken outside the United States which did not involve direct access to US resources: https://en.wikipedia.org/wiki/Alfred_Zehe

I haven't seriously followed what charges could be brought over the 2016/Russia question, since it seems relatively unlikely that a Trump DoJ would bring a case there. A subpoena over 2016 could potentially have come out of Congress, but that's not likely to lead to a criminal charge at present.

[dragonwriter]

> Convicting a non-resident non-citizen of espionage for sharing someone else's leaks would be a fairly shocking decision

The usual foreign intelligence case officer is a non-citizen, often non-resident, whose main business is soliciting, recieving, and redistributing other people's leaks of sensitive information.

It is, to say the least, not at all unheard of for such people to be convicted of espionage, as they are literally the primary target of espionage laws.

> I haven't seriously followed what charges could be brought over the 2016/Russia question, since it seems relatively unlikely that a Trump DoJ would bring a case there.

“Trump DoJ” is too simple of a model; both the Special Counsel's Office at DoJ and other DoJ offices (notably SDNY) are bringing indictments politically uncomfortable to Trump, stemming from (but not always specific to) the “2016/Russia question”.

[Bartweiss]

I mentioned non-resident with the purpose of excluding domestic spies like Anna Chapman, though perhaps "not active in the US" would have been more appropriate.

As for the DoJ, I agree that I simplified the issue. I'm making the assumption that the indictments we've seen so far are much more tractable for those offices than charging Assange would be, but perhaps I'm wrong about that.

I thought Espionage Act charges hadn't been levied against noncitizens operating wholly outside the United States, who would instead be charged under local espionage laws where they acted, US classified materials or other act-specific laws, or UCMJ spying rules in times of war. All of the cases I'd previously read about were either US citizens or foreigners like Truong and Yatskov who acted directly within US borders. It turns out this isn't true.

I'd never heard of Alfred Zehe, but apparently he was a German citizen who did some analysis for the Soviets in Mexico, and was arrested on Espionage Act charges when he later visited Boston. He filed for dismissal over this exact point - that he was a non-citizen, not in the US, and not directly accessing American sources - but was refused. And in a bizarrely ironic twist, it was Robert Mueller who directed prosecutors to withhold documents from the defense over "national security" that had already been offered to Warsaw Pact governments.

So it looks like not only was I wrong on the history of Espionage Act charges, but there's direct evidence that the current Special Counsel has no hesitation aggressively prosecuting such cases. I appreciate the correction.