Speaker 1: Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every
Speaker 1: day we bring you insight and analysis into the most
Speaker 1: important legal news of the day. You can find more
Speaker 1: episodes of the Bloomberg Law Podcast on Apple Podcasts, SoundCloud
Speaker 1: and on Bloomberg dot com slash podcasts. Federal prosecutors have
Speaker 1: thrown the proverbial book at Julian Assange, charging the Wiki
Speaker 1: Leaks founder with seventeen counts of violating the Espionage Act.
Speaker 1: The escalation of the charges against Assange may raise the
Speaker 1: chances of his extradition straight to the US instead of
Speaker 1: to Sweden from the UK, but also reignited a debate
Speaker 1: over whether the US was punishing Assange for activities protected
Speaker 1: by the First Amendment. Joining me is Andrew Kent, professor
Speaker 1: at Fordham Law School. Andrew, this is a novel use
Speaker 1: of the espionage Will it stand up in court? I
Speaker 1: think it probably will, although I think there are reasons
Speaker 1: to be concerned about it. Let's talk about the reasons
Speaker 1: to be concerned about it. The head of the Justice
Speaker 1: Department's National Security Division said that Assange is no journalist.
Speaker 1: Can you draw a legal distinction between what Assange did
Speaker 1: and what other news organizations. Do you know that's really
Speaker 1: the you know, the hundred thousand dollar question or whatever
Speaker 1: you want to call it. You and that's it's very difficult,
Speaker 1: although perhaps recently Assange has made it somewhat less difficult
Speaker 1: in a variety of ways. So previously, when he was
Speaker 1: just disclosing information and kind of remaining in the background,
Speaker 1: he might have looked very much like a just a
Speaker 1: publisher of information. But as he's been cooperating with the
Speaker 1: Russian intelligence et cetera, could be easier for prosecutors to
Speaker 1: show that he was acting with, you know, a purpose
Speaker 1: to harm the United States that an ordinary journalist, of
Speaker 1: course would not have. Does this establish a precedent? I
Speaker 1: take it that that's one of the things that news
Speaker 1: organizations and defenders of the First Amendment are worried about. It. Again,
Speaker 1: it depends a bit on what the government proves and
Speaker 1: what the court requires a government to prove. A court
Speaker 1: could interpret the statute to require a showing that Assange acted,
Speaker 1: you know, with some bad purpose to harm the United States,
Speaker 1: harm the security of the United States. I think if
Speaker 1: it does that, then it's not as much of a
Speaker 1: precedent because of as they said, journalists, generally, you do
Speaker 1: not act with that purpose at all. They act with
Speaker 1: the purpose of of informing the public. If the government
Speaker 1: does not have to prove that if the if the
Speaker 1: court doesn't require them to, then it is a broader
Speaker 1: precedent and raises more concerns. So the extradition is ahead.
Speaker 1: The extradition fight. The question is whether the UK will
Speaker 1: extradite directly to the US or to Sweden, where prosecutors
Speaker 1: are investigating rape allegation against Assange. Will the step up
Speaker 1: of these charges the escalation help in the in the
Speaker 1: US is attempt to get Assange here first? Yeah, it's
Speaker 1: hard to say because our extradition treaty with the UK
Speaker 1: has an exception for so called political offenses, like most
Speaker 1: extradition treaties do. And um, you know, some might say
Speaker 1: that that prosecuting someone for publishing government information because it
Speaker 1: could implicate the First Amendment, that should be a political offense,
Speaker 1: and maybe the UK wouldn't extradite, But actually the UK
Speaker 1: has much more severe rules about publishing official secrets than
Speaker 1: we do, and don't have a First Amendment UM or
Speaker 1: any kind of similar similarly broad protections. So it's a
Speaker 1: it's a. It's a little unclear I think which way
Speaker 1: this will cut in terms of accelerating or or or
Speaker 1: decelerating his extradition. The Obama administration made a decision not
Speaker 1: to prosecute Assange for espionage. Does this show any change
Speaker 1: in policy in the Trump administration or is it not
Speaker 1: indicative of anything outside this particular their case? Sorright? You
Speaker 1: could show a change in policy, again, you know, depending
Speaker 1: on both what you know, we the public think, and
Speaker 1: what the court requires the government to prove about Ossge personally.
Speaker 1: If if the if the government's going to argue in
Speaker 1: a court, would accept a theory that's simply publishing this
Speaker 1: information which he was not entitled to have, that's enough,
Speaker 1: then this could show a really a big change in
Speaker 1: policy that could potentially sweep in a lot of what
Speaker 1: reporters for places like The New York Times do every day.
Speaker 1: But again, if if there's a narrower construction of the
Speaker 1: of the statute that he's charged under, and there needs
Speaker 1: to be the showing of of intent to harm um,
Speaker 1: then you know that then it wouldn't be quite as
Speaker 1: quite as broader, quite as concerning. In a an article
Speaker 1: today in the New York Times. The Times said that,
Speaker 1: like many other news organizations it published, it obtained precisely
Speaker 1: the same archives of documents from Wiki leaks without authorization
Speaker 1: from the government. But the Time MS took steps to
Speaker 1: withhold the names of informants in the subset of files
Speaker 1: that it published. Is that legally different from publishing the
Speaker 1: other classified information. Well, if if there does need to
Speaker 1: be some kind of showing of bad intent or harm,
Speaker 1: then yes, I mean, one of the fairly outrageous things
Speaker 1: that Wiki leagues did was to expose the names of
Speaker 1: foreign human rights activists and your religious dissidents and other
Speaker 1: people who had been confidentially communicating with the United States
Speaker 1: government about problems within their own countries. And certainly, you know,
Speaker 1: broadcasting those names to anyone in the world could really,
Speaker 1: you know, both harm the United States interest but also
Speaker 1: you know, directly physically harm particular people, you know, potentially. So, um,
Speaker 1: you know, certainly the New York Times acted much more
Speaker 1: responsibly than Wiki leaks did. And um, you know, under
Speaker 1: the very broad statute that we have here, that doesn't
Speaker 1: necessarily make a difference. But again, if the court construes
Speaker 1: a statute more narrowly looking for bad intent, than than
Speaker 1: The Times and other responsible news organ nations could take
Speaker 1: comfort from from their much more responsible practices. About a
Speaker 1: minute here, Andrew, there is no mention no charges relating
Speaker 1: to the hacking of the presidential election. Is that surprising? Well,
Speaker 1: perhaps not coming from Trump's Justice department. Um, you know,
Speaker 1: we all know what the president thinks about about the hacking.
Speaker 1: I mean he's still, you know, fairly recently he's calling
Speaker 1: it a hoax and a witch hunt. Um, and you know.
Speaker 1: But but also probably more importantly, to prosecute a case
Speaker 1: like that would probably have to reveal an extraordinary amount
Speaker 1: of cyber and other secrets of our intelligence agencies about
Speaker 1: how they gathered that information. And generally our government doesn't
Speaker 1: want to sort of blow really great secrets like that
Speaker 1: just in order to get a criminal prosecution of a
Speaker 1: single person. Thanks so much, Andrew, As always as Andrew
Speaker 1: can to professor at Fordham Law School. Thanks for listening
Speaker 1: to the Bloomberg Law Podcast. You can subscribe and listen
Speaker 1: to the show on Apple podcast, SoundCloud and on Bloomberg
Speaker 1: dot com slash podcast. I'm June Brosso. This is Bloomberg
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