Tue, 23 Apr 2019

Julian Assange's arrest on Thursday in the Ecuadorian Embassy in London opens the next chapter in the saga of the WikiLeaks founder: an expected extradition fight over a pending criminal prosecution in the United States.

It's also likely to trigger a debate over press freedom and call attention to unresolved questions about Assange's role in the release of stolen Democratic emails leading up to the 2016 presidential election, part of special counsel Robert Mueller's recently concluded investigation into ties between the Trump campaign and Russia.

Some takeaways from Assange's arrest:

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That distinction could be vital in the government's case and complicates Assange's efforts to cast the prosecution as infringing on press freedom. Justice Department media guidelines are meant to protect journalists from prosecution for doing their jobs, which has historically included the publication of classified information. But the protections don't easily extend to journalists or others who themselves break the law to obtain information or who solicit others to do so, as the government alleges.

"The act of coaching" someone how to steal information, as alleged in the indictment, "is a step too far," said Ryan Fayhee, a former Justice Department prosecutor who specialised in counterintelligence cases.

Assange may well have grounds to argue that, unlike Manning or government officials or contractors, he had no obligation to safeguard American secrets.

But his publication of stolen Democratic emails during the 2016 campaign and reliance for them on a foreign adversary like Russia may undermine any defense claim that he's motivated by a public good.

"His conduct, and his organisation's conduct, I believe, undermines any defense that he would pursue having to do with his genuine interest in rooting out corruption and his absolute commitment to transparency," Fayhee said. "Because Russia is anything but the right model to point to in terms of transparency."

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Ecuador's president, Lenin Moreno, said he had secured a guarantee from the United Kingdom that Assange wouldn't be extradited to a country where he could face a death penalty. That's likely a reassurance to Assange's supporters, but the charge he currently faces carries just a five-year maximum penalty.

The Espionage Act can carry the death penalty for people who deliver national defense information to foreign nations, but that charge was not brought against Assange in the current indictment.

Though some of the language in the indictment, including the references to national defense information, mimics the Espionage Act, there's no allegation Assange disclosed American secrets to a foreign power with the goal of harming the U.S.

Connection to Mueller's Russia investigation

On its face, the charges have nothing to do with Mueller's probe.

The indictment was brought not by Mueller and his team but rather by prosecutors in Virginia and the Justice Department's national security division.

There is no allegation in the indictment of any involvement in Russian election interference, coordination with Russian hackers or interactions with Trump campaign associates.

That's striking since Assange and WikiLeaks have surfaced, albeit obliquely and not by name, in multiple criminal cases brought by Mueller. WikiLeaks was the organisation that published Democratic emails stolen by Russian intelligence officers. And Roger Stone, a Trump confidant under indictment, repeatedly boasted of connections to WikiLeaks and of having advance knowledge of the organisation's publication plans.

It is unclear what information, if any, Assange might be willing to offer about how WikiLeaks came to possess the stolen emails.

Mueller has farmed out investigations peripheral to his central mission to other Justice Department offices. Though Assange and WikiLeaks cut to the heart of the question of whether the Trump campaign colluded with Russia, the special counsel ultimately closed his investigation without charging him and before he could even be taken into custody.

That could suggest Mueller didn't see a criminal case to be made against Assange or deferred to the Justice Department's existing investigation into him.

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