ANAHEIM, Calif. (CN) – Prosecuting WikiLeaks founder Julian Assange for publishing leaked documents related to the 2016 presidential election would set a terrible precedent for journalists, the top lawyer for The New York Times said Tuesday.
Addressing a room full of federal and circuit judges at the Ninth Circuit’s annual judicial conference, David McCraw, the deputy general counsel for The New York Times, explained that regardless of how one feels about Assange and traditional news outlets receiving the same kind of deference over publishing leaked materials, his prosecution would be a gut punch to free speech.
“I think the prosecution of him would be a very, very bad precedent for publishers,” McCraw said. “From that incident, from everything I know, he’s sort of in a classic publisher’s position and I think the law would have a very hard time drawing a distinction between The New York Times and WikiLeaks.”
McCraw went on to clarify that while Assange employs certain methods that he finds discomfiting and irresponsible, such as dumping unredacted documents revealing the personal information of ordinary people, Assange should be afforded the same protections as a traditional journalist.
“Do I wish journalism was practiced in a certain way, like it is with The New York Times, The Washington Post, or The Wall Street Journal? Of course. But I also think new ways of publishing have their value. Our colleagues who are not only challenging us financially but journalistically have raised an awareness that there are different ways to report,” McCraw said.
“But if someone is in the business of publishing information, I think that whatever privilege happens to apply – whatever extension of the law that would apply – should be there. Because the question isn’t whether he’s a journalist. It’s in that instance was he committing an act of journalism.”
Assange has long considered himself a journalist operating no differently than other news outlets. This has complicated matters, because if Assange can be prosecuted for publishing leaked information, why not prosecute news organizations like The New York Times?
Earlier this month, a grand jury returned an indictment against twelve Russian military spies for hacking into the servers and emails of the Democratic National Committee and state election officials, stealing documents and staging the release of those documents to interfere with the 2016 presidential election. While the indictment did not name Assange and WikiLeaks specifically, it has been widely suggested that WikiLeaks received the materials and could very well be the group referred to in the indictment as “Organization Number 1.”
Barry Pollack, who represents Assange in an ongoing criminal investigation in the Eastern District of Virginia, weighed in on the indictment Tuesday.
“If you read the indictment that just came out on Russians and you look at what Organization Number 1, which is clearly WikiLeaks, is alleged to have done in that indictment, it is doing exactly what The New York Times and The Washington Post do every day of the week,” Pollack said. “He [Assange] is communicating with a source, the source provides him with information, he publishes that information.
“There are no questions about the truthfulness or accuracy or authenticity of that information. And then he encourages the source to give him more information. He says ‘don’t give it to my competitors, give it to me. This story will have more impact if I publish it.’”
Pollack and McCraw spoke as part of a panel titled “The Law of Leaks,” a session on how the United States has ramped up efforts to prosecute people who have leaked state secrets. Thirteen people have been prosecuted under the first law against leaking state secrets, the Espionage Act of 1917, most under the Obama administration.
President Donald Trump has waged an unprecedented war against the media, taking to Twitter last year to call the media “the enemy of the American people.” Yet no publisher has ever been indicted over leaks, and both McCraw and Pollack expressed doubts about whether it will happen any time soon.
“Unlike firing off a tweet, bringing a prosecution requires a career professional prosecutor to sign off on the prosecution, so there also is a tremendous check there that doesn’t exist in some of the rhetoric we hear,” Pollack said.
“Prosecutions of journalists would be difficult,” McCraw said. “I think they’d be unpopular, I think they’d be wrong, and I think they’d be unsuccessful. I see this PR campaign against the press as almost an alternative to legal measures.”