Trump, leakers and journalists: the Assange precedent and revisiting the Espionage Act

When campaigning in 2016, presidential candidate Donald Trump was delighted by leaked, hacked or disclosed material that wound its way to the digital treasure troves of WikiLeaks. The online publisher of government secrets had become an invaluable resource for Trump's battering of the Democratic establishment hopeful, Hillary Clinton, with her nonchalant attitude to the security of email communications and a venal electoral strategy. "Very little pick-up by the dishonest media of incredible information provided by WikiLeaks," he tooted on what was then Twitter. "So dishonest! Rigged system!" After winning the keys to the White House, he mysteriously forgot the organisation whose fruit he so merrily feasted on.

During the Biden administration, the fate of the founding publisher of WikiLeaks, an Australian national who had never been on American soil and had published classified US defence and diplomatic material outside the country (Cablegate was a gem; Collateral Murder , a chilling exposure of atrocity in Baghdad), was decided. Kept in the excruciating, spiritually crushing conditions of Belmarsh Prison in London for over five years, Julian Assange was convicted under the US Espionage Act of 1917 in June 2024, the victim of a relic dusted and burnished for deployment against the Fourth Estate. Assange's conviction on one count of conspiracy to obtain and disclose national defence information has paved a grim road for future prosecutions against the press, a pathway previously not taken for its dangers.

With this nasty legacy, recent threats by Trump against journalists who published and discussed the findings of a leaked preliminary report from the Defense Intelligence Agency are hard to dismiss. The report dared question the extent of damage inflicted on Iran's nuclear facilities by Operation Midnight Hammer, which involved 75 precision guided munitions in all. "Monumental Damage was done to all Nuclear sites in Iran, as shown by satellite images," Trump asserted with beaming confidence. "Obliteration is an accurate term!"

CNN and The New York Times duly challenged the account in discussing the findings of the short DIA report. Damage to the program had not been as absolute as hoped, setting it back by a matter of months rather than years. This sent Secretary of Defense Pete Hegseth into a state of apoplexy, haranguing those press outlets who "cheer against Trump so hard, it's like in your DNA and in your blood". For his part, Trump accused the Democrats on a Truth Social post of leaking "information on the PERFECT FLIGHT on the Nuclear Sites in Iran", demanding their prosecution. He further charged his personal lawyer to harangue The New York Times with a letter demanding it "retract and apologize for" the article, one it claimed was "false" and "defamatory".

To Maria Bartiromo of Fox Business, Trump also added that reporters could be forced to reveal their sources on "National Security" grounds. "We can find out. If they want to, we can find out easily. You go up and tell a reporter, 'National security, who gave it?' You have to do that, and I suspect we'll be doing things like that."

According to Rollingstone, the President has already queried whether the press could be snared by the Espionage Act. While the magazine misses a beat in ignoring the Assange precedent, it notes the current administration's overly stimulated interest in the statute. Prior to returning to the White House, Trump and his inner circle considered how the Act could be used not only to target leakers in government and whistleblowers "but against media outlets that received classified or highly sensitive information". The publication relies on two sources who had discussed the matter with the President.

One source, a senior Trump administration official, insists that the Act has again come up specifically regarding reports on the efficacy of the US strike on Iran's nuclear facilities. Members of the administration are "looking for the right case to launch their 'maiden voyage' of an unprecedented type of Espionage Act prosecution", one designed to deter news outlets from publishing classified government information or concealing the identities of their leaking sources. "All we'd really need is one text or email from a reporter telling a source: 'Can you pull something for me?' or something very direct of that nature'." A less ignorant source would not have to look far for the one existing, successful example in the US prosecutor's kit.

When pressed on the issue of whether the espionage statute would become the spear for the administration to target leakers and journalists, White House spokesperson Anna Kelly was broad in reply: "Leaking classified information is a crime, and anyone who threatens American national security in this manner should be held accountable."

The unanswered question regarding Assange's prosecution and eventual conviction remains the possible and fundamental role played by the Constitution's First Amendment protecting press freedom. Unfortunately, the central ghastliness of the Espionage Act is its subversion of free speech and motive. Given the Australian publisher's plea deal, the mettle of that defence was never tested in court.

Some members of Congress have shown a worthy interest in that valuable right, notably in the context of defending Assange. In their November 8, 2023 letter to President Joe Biden, sixteen lawmakers spanning both sides of politics, including Trump loyalist Marjorie Taylor Greene and progressive Democrat Alexandria Ocasio-Cortez, declared their commitment "to the principles of free speech and freedom of the press" in urging the withdrawal of the US extradition request for Assange. Unfortunately, and significantly, that request was ignored.

Where Greene and other MAGA cheerleaders sit on Trump's dangerous enchantment with the Espionage Act remains to be seen, notably on the issue of prosecuting publishers and journalists. MAGA can be incorrigibly fickle, especially when attuned to the authoritarian impulses of their great helmsman.