WEBVTT - Assange Indictment Raises First Amendment Questions

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<v Speaker 1>Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every

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<v Speaker 1>day we bring you insight and analysis into the most

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<v Speaker 1>important legal news of the day. You can find more

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<v Speaker 1>and on Bloomberg dot com slash podcasts. Federal prosecutors have

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<v Speaker 1>thrown the proverbial book at Julian Assange, charging the Wiki

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<v Speaker 1>Leaks founder with seventeen counts of violating the Espionage Act.

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<v Speaker 1>The escalation of the charges against Assange may raise the

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<v Speaker 1>chances of his extradition straight to the US instead of

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<v Speaker 1>to Sweden from the UK, but also reignited a debate

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<v Speaker 1>over whether the US was punishing Assange for activities protected

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<v Speaker 1>by the First Amendment. Joining me is Andrew Kent, professor

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<v Speaker 1>at Fordham Law School. Andrew, this is a novel use

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<v Speaker 1>of the espionage Will it stand up in court? I

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<v Speaker 1>think it probably will, although I think there are reasons

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<v Speaker 1>to be concerned about it. Let's talk about the reasons

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<v Speaker 1>to be concerned about it. The head of the Justice

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<v Speaker 1>Department's National Security Division said that Assange is no journalist.

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<v Speaker 1>Can you draw a legal distinction between what Assange did

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<v Speaker 1>and what other news organizations. Do you know that's really

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<v Speaker 1>the you know, the hundred thousand dollar question or whatever

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<v Speaker 1>you want to call it. You and that's it's very difficult,

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<v Speaker 1>although perhaps recently Assange has made it somewhat less difficult

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<v Speaker 1>in a variety of ways. So previously, when he was

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<v Speaker 1>just disclosing information and kind of remaining in the background,

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<v Speaker 1>he might have looked very much like a just a

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<v Speaker 1>publisher of information. But as he's been cooperating with the

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<v Speaker 1>Russian intelligence et cetera, could be easier for prosecutors to

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<v Speaker 1>show that he was acting with, you know, a purpose

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<v Speaker 1>to harm the United States that an ordinary journalist, of

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<v Speaker 1>course would not have. Does this establish a precedent? I

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<v Speaker 1>take it that that's one of the things that news

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<v Speaker 1>organizations and defenders of the First Amendment are worried about. It. Again,

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<v Speaker 1>it depends a bit on what the government proves and

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<v Speaker 1>what the court requires a government to prove. A court

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<v Speaker 1>could interpret the statute to require a showing that Assange acted,

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<v Speaker 1>you know, with some bad purpose to harm the United States,

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<v Speaker 1>harm the security of the United States. I think if

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<v Speaker 1>it does that, then it's not as much of a

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<v Speaker 1>precedent because of as they said, journalists, generally, you do

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<v Speaker 1>not act with that purpose at all. They act with

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<v Speaker 1>the purpose of of informing the public. If the government

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<v Speaker 1>does not have to prove that if the if the

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<v Speaker 1>court doesn't require them to, then it is a broader

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<v Speaker 1>precedent and raises more concerns. So the extradition is ahead.

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<v Speaker 1>The extradition fight. The question is whether the UK will

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<v Speaker 1>extradite directly to the US or to Sweden, where prosecutors

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<v Speaker 1>are investigating rape allegation against Assange. Will the step up

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<v Speaker 1>of these charges the escalation help in the in the

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<v Speaker 1>US is attempt to get Assange here first? Yeah, it's

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<v Speaker 1>hard to say because our extradition treaty with the UK

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<v Speaker 1>has an exception for so called political offenses, like most

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<v Speaker 1>extradition treaties do. And um, you know, some might say

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<v Speaker 1>that that prosecuting someone for publishing government information because it

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<v Speaker 1>could implicate the First Amendment, that should be a political offense,

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<v Speaker 1>and maybe the UK wouldn't extradite, But actually the UK

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<v Speaker 1>has much more severe rules about publishing official secrets than

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<v Speaker 1>we do, and don't have a First Amendment UM or

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<v Speaker 1>any kind of similar similarly broad protections. So it's a

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<v Speaker 1>it's a. It's a little unclear I think which way

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<v Speaker 1>this will cut in terms of accelerating or or or

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<v Speaker 1>decelerating his extradition. The Obama administration made a decision not

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<v Speaker 1>to prosecute Assange for espionage. Does this show any change

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<v Speaker 1>in policy in the Trump administration or is it not

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<v Speaker 1>indicative of anything outside this particular their case? Sorright? You

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<v Speaker 1>could show a change in policy, again, you know, depending

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<v Speaker 1>on both what you know, we the public think, and

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<v Speaker 1>what the court requires the government to prove about Ossge personally.

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<v Speaker 1>If if the if the government's going to argue in

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<v Speaker 1>a court, would accept a theory that's simply publishing this

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<v Speaker 1>information which he was not entitled to have, that's enough,

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<v Speaker 1>then this could show a really a big change in

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<v Speaker 1>policy that could potentially sweep in a lot of what

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<v Speaker 1>reporters for places like The New York Times do every day.

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<v Speaker 1>But again, if if there's a narrower construction of the

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<v Speaker 1>of the statute that he's charged under, and there needs

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<v Speaker 1>to be the showing of of intent to harm um,

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<v Speaker 1>then you know that then it wouldn't be quite as

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<v Speaker 1>quite as broader, quite as concerning. In a an article

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<v Speaker 1>today in the New York Times. The Times said that,

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<v Speaker 1>like many other news organizations it published, it obtained precisely

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<v Speaker 1>the same archives of documents from Wiki leaks without authorization

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<v Speaker 1>from the government. But the Time MS took steps to

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<v Speaker 1>withhold the names of informants in the subset of files

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<v Speaker 1>that it published. Is that legally different from publishing the

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<v Speaker 1>other classified information. Well, if if there does need to

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<v Speaker 1>be some kind of showing of bad intent or harm,

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<v Speaker 1>then yes, I mean, one of the fairly outrageous things

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<v Speaker 1>that Wiki leagues did was to expose the names of

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<v Speaker 1>foreign human rights activists and your religious dissidents and other

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<v Speaker 1>people who had been confidentially communicating with the United States

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<v Speaker 1>government about problems within their own countries. And certainly, you know,

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<v Speaker 1>broadcasting those names to anyone in the world could really,

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<v Speaker 1>you know, both harm the United States interest but also

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<v Speaker 1>you know, directly physically harm particular people, you know, potentially. So, um,

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<v Speaker 1>you know, certainly the New York Times acted much more

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<v Speaker 1>responsibly than Wiki leaks did. And um, you know, under

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<v Speaker 1>the very broad statute that we have here, that doesn't

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<v Speaker 1>necessarily make a difference. But again, if the court construes

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<v Speaker 1>a statute more narrowly looking for bad intent, than than

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<v Speaker 1>The Times and other responsible news organ nations could take

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<v Speaker 1>comfort from from their much more responsible practices. About a

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<v Speaker 1>minute here, Andrew, there is no mention no charges relating

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<v Speaker 1>to the hacking of the presidential election. Is that surprising? Well,

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<v Speaker 1>perhaps not coming from Trump's Justice department. Um, you know,

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<v Speaker 1>we all know what the president thinks about about the hacking.

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<v Speaker 1>I mean he's still, you know, fairly recently he's calling

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<v Speaker 1>it a hoax and a witch hunt. Um, and you know.

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<v Speaker 1>But but also probably more importantly, to prosecute a case

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<v Speaker 1>like that would probably have to reveal an extraordinary amount

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<v Speaker 1>of cyber and other secrets of our intelligence agencies about

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<v Speaker 1>how they gathered that information. And generally our government doesn't

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<v Speaker 1>want to sort of blow really great secrets like that

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<v Speaker 1>just in order to get a criminal prosecution of a

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<v Speaker 1>single person. Thanks so much, Andrew, As always as Andrew

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<v Speaker 1>can to professor at Fordham Law School. Thanks for listening

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<v Speaker 1>to the Bloomberg Law Podcast. You can subscribe and listen

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<v Speaker 1>to the show on Apple podcast, SoundCloud and on Bloomberg

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<v Speaker 1>dot com slash podcast. I'm June Brosso. This is Bloomberg

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<v Speaker 1>m M