Bill Barr has been (in my opinion) wrongly attacked for many of his actions with regard to the Special Counsel Report. Indeed, I defended his decisions in print and I testified in favor of his confirmation. I still believe that he is an excellent choice for Attorney General. However, on the charges against Julian Assange, he is wrong. Dead wrong. As I stated in a recent column, the use of the Espionage Act strikes at the heart of the First Amendment. Now, the Washington Post is reporting that two prosecutors involved in the Wikileaks case argued against the new charges.
The Washington Post reported Friday, prosecutors objected that the charges “posed serious risks for First Amendment protections.” They were of course correct. It is reassuring that some of the prosecutors saw the dangers and raised their voices in opposition. However, the decision (presumably by Barr) to move forward has created a genuine legal crisis for the press freedom in the United States.
What is troubling is that the Obama Administration appears to have rejected this course. However, in 2017, Attorney General Jeff Sessions reportedly pushed the U.S. Attorney for the Eastern District of Virginia to take a second look the charges. Ironically, the veteran prosecutor who was asked to look at the case was named James Trump. He has a long and accomplished resume of prosecutions and is hardly timid in bringing charges. He was involved in the case against CIA officer Jeffrey Sterling for giving classified information to journalist James Risen.
However, Trump and his colleagues Daniel Grooms raised objections over the threat to press freedom. That debate appears to have raged for months.
I am assuming that Barr had to approve the final charges but there is no confirmation of his role.
I have always said that, despite our friendship, Barr and I hold divergent views in some areas. The most obvious is executive privilege and powers. I am a typical Madisonian scholar and tend to favor Congress in fights with the Executive Branch. My natural default position is to Article I. Barr’s natural default is to Article II and executive power. Barr is also a hawk on national security law, particularly when it comes to the protection of classified information. He is by no means anti-media. However, he has always been a hardliner on the protection of national secrets and national security.
Nevertheless, this is wrong and Barr should have stopped it. The initial charge against Assange avoided the direct attack on press rights but focusing on the stealing of information (and Assange’s alleged role in that theft). That restrained response was blown away with this all-out attack on First Amendment rights of journalists. Simply saying Assange is not a journalist is not enough. He is being charged for conduct that is indistinguishable from a wide array of reporters.
I previously wrote that Assange could have the makings of a modern John Peter Zenger trial. It now is and Barr and the Administration is on the wrong side of that fight.