By Wired

May 25, 2019 "Information Clearing House" - The Trump administration’s position that the Espionage Act should apply here would have immediate and broadly-felt repercussions far beyond WikiLeaks. Because however you personally care to classify Assange, the acts at the heart of this latest indictment mirror those made by journalists every day. They’re the reason US citizens know about PRISM, and the Pentagon Papers, and any number of other revelations around abuses of power and governmental impropriety.

“The people leaking it are obviously violating their secrecy agreement and breaking the law, but as long as the journalist doesn’t pay the leaker, or help them hack passwords, this is what investigative journalists in the national security community do on a day-to-day basis,” says Bradley Moss, an attorney at Mark Zaid PC who focuses on national security and intelligence issues. “If they can bring this charge and convict Assange on it, they can bring it against anyone.”

That’s in part because the Espionage Act doesn’t carve out any exemptions for journalists; that protection has come from the First Amendment, and from a recognition among previous administrations that prosecuting publishers of leaks would set a dangerous precedent. In fact, Thursday’s charges deal specifically with incidents that occurred in 2009 and 2010, during the Obama administration. The attorney general at the time, Eric Holder, passed on these same charges for specifically that reason.

“It was absolutely looked at, and the department ultimately made the decision that it wasn’t appropriate to charge Assange for publishing classified information,” says former Obama DOJ spokesperson Matthew Miller. “Not because he’s a journalist—we didn’t believe he was—but that the same legal theories you would apply to him could be used against a reporter for any major media outlet. That was the driving force.”

John Demers, who leads the Justice Department’s National Security Division, attempted to draw a distinction between Assange and traditional media outlets to reporters Thursday. “Some say that Assange is a journalist, and that he should be immune from prosecution for these actions. The department takes serious the role of journalists in our democracy,” Demers said. “It is not and has never been the department’s policy to target them for reporting. But Julian Assange is no journalist.”

Unfortunately, that distinction doesn’t matter in the eyes of the Espionage Act. A successful prosecution of Assange would establish a precedent that publishing sensitive national security materials is a crime, full stop. From there, the Trump administration—and whoever follows—would be emboldened to prosecute similar journalistic acts. Not only that; they’d get to decide who counts as a journalist in the first place.