Though Julian Assange is not a conventional journalist, much of what he does at WikiLeaks is difficult to distinguish in a legally meaningful way from what traditional news organizations do.CreditJack Taylor/Getty Images
WASHINGTON — Julian Assange, the WikiLeaks leader, has been indicted on 17 new counts of violating the Espionage Act for his role in obtaining and publishing classified military and diplomatic documents in 2010, the Justice Department announced on Thursday — a novel case that raises profound First Amendment issues.
The new charges were part of an expanded indictment obtained by the Trump administration that significantly raised the stakes of the legal case against Mr. Assange, who is already fighting extradition proceedings in London based on an earlier hacking-related count brought by federal prosecutors in Northern Virginia.
The secret documents that Mr. Assange published were provided by the former Army intelligence analyst Chelsea Manning, who was convicted at a court-martial trial in 2013 of leaking the records. The indictment accuses Mr. Assange of complicity in Ms. Manning’s leaks, saying he solicited unauthorized disclosures of classified information and encouraged her over several months.
“Assange, WikiLeaks affiliates and Manning shared the common objective to subvert lawful restrictions on classified information and to publicly disseminate it,” the indictment said.
Justice Department officials sought to minimize the constitutional implications of the new indictment. They noted in a briefing with reporters that most of the new charges against Mr. Assange were related to his obtaining of the archives of documents, as opposed to their publication.
The three charges that squarely addressed Mr. Assange’s publication of government secrets were focused on a handful of files that contained the names of people who had provided information to the United States in dangerous places like the Afghanistan and Iraq war zones, and authoritarian states like China, Iran, and Syria.
But the officials would not engage with questions about how the actions they said were felonies by Mr. Assange differed from ordinary investigative journalism. Notably, The New York Times, among many other news organizations, obtained precisely the same archives of documents from WikiLeaks, without authorization from the government.
Barry J. Pollack, a lawyer for Mr. Assange, said his client was being charged with a crime “for encouraging sources to provide him truthful information and for publishing that information.” That dramatic step, he said, removed the “fig leaf” that the case about his client was only about hacking.
“These unprecedented charges demonstrate the gravity of the threat the criminal prosecution of Julian Assange poses to all journalists in their endeavor to inform the public about actions that have taken by the U.S. government,” he said.Video2:54Julian Assange: Friend and Foe to Left and RightOver the years, the WikiLeaks founder has been embraced by everyone from Lady Gaga to Sean Hannity. But he’s also made enemies along the way. Our video shows how his anti-secrecy agenda has attracted, and repelled, people across the political spectrum.CreditCreditAndrew Testa for The New York Times
For most of American history, it was rare to treat the leaking of government secrets to the news media as a crime. But starting under the Bush administration, the Justice Department began making much more routine use of the Espionage Act to go after officials who provided information to the public through reporters, as opposed to actual spies. The World War I-era law criminalizes the disclosure of potentially damaging national security secrets to someone not authorized to receive them.
On its face, the Espionage Act could also be used to prosecute reporters who publish government secrets. But many legal scholars believe that prosecuting people for acts related to receiving and publishing information would violate the First Amendment. That notion has never been tested in court, however, because until now the government has never brought such charges.
Though he is not a conventional journalist, much of what Mr. Assange does at WikiLeaks is difficult to distinguish in a legally meaningful way from what traditional news organizations like The New York Times do: seek and publish information that officials want to be secret, including classified national security matters, and take steps to protect the confidentiality of sources.
The Obama administration had also weighed charging Mr. Assange, but rejected that step out of fears that it would chill investigative journalism and could be struck down as unconstitutional. A Justice Department official declined to address whether there was any new evidence that had come to light recently or whether the Trump administration had simply decided to take a step the Obama administration had shied away from.
The evidence laid out in the indictment against Mr. Assange mapped onto information presented by military prosecutors in the 2013 court-martial trial of Ms. Manning. Prosecutors in her case also alleged that her actions endangered the people whose names were revealed in the documents when Mr. Assange published them, though they presented no evidence that anyone was killed as a result.
A Justice Department official declined to say whether any such evidence now exists, but stressed that prosecutors would only need to prove in court what they say in the indictment: that publication put people in danger.
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Ms. Manning was sentenced to 35 years in prison — by far the longest punishment for a leak case in American history. But in one of his last acts in office, former President Barack Obama commuted most of the remainder of her sentence in January 2017.
She is now back in jail again, after a judge held her in contempt for refusing to testify about her interactions with Mr. Assange before the grand jury in the Eastern District of Virginia that indicted him.
Mr. Assange was previously indicted in March 2018 in federal court in Alexandria, Va., on a charge of conspiring to commit unlawful computer intrusion. Prosecutors accused Mr. Assange of agreeing to help Ms. Manning crack an encoded portion of a passcode that would have enabled her to log on to a classified military network.
That charge was unveiled in April, when Mr. Assange was arrested in London after being dragged out of the Ecuadorean Embassy, where he had resided for years to avoid capture. The United States has asked Britain to extradite Mr. Assange, who is fighting it, and the filing of the new charges clears the way for British courts to weigh whether it would be lawful to transfer custody of him to a place where he will face Espionage Act charges.