[mpyne]

The prosecution has to make it a capital case or not when they file formal charges. Until Manning was charged there was no way for a death penalty to be on the table, but the prosecution couldn't "pre-charge him" with a capital case and drop the death penalty the week after, it had to be at the same time. So no, not for a single day.

However if there was public awareness of the link itself (and its contents) at the time Barrett pasted the link then I would agree that it makes no sense to charge him with pointing out information that's already out there, as by then he's not the source or someone with involvement, but an observer.