Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every day we bring you insight and analysis into the most important legal news of the day. You can find more episodes of the Bloomberg Law Podcast on Apple Podcasts, SoundCloud and on Bloomberg dot com slash podcasts. Federal prosecutors have thrown the proverbial book at Julian Assange, charging the Wiki Leaks founder with seventeen counts of violating the Espionage Act.
The escalation of the charges against Assange may raise the chances of his extradition straight to the US instead of to Sweden from the UK, but also reignited a debate over whether the US was punishing Assange for activities protected by the First Amendment. Joining me is Andrew Kent, professor at Fordham Law School. Andrew, this is a novel use of the espionage Will it stand up in court? I think it probably will, although I think there are reasons
to be concerned about it. Let's talk about the reasons to be concerned about it. The head of the Justice Department's National Security Division said that Assange is no journalist. Can you draw a legal distinction between what Assange did and what other news organizations. Do you know that's really the you know, the hundred thousand dollar question or whatever you want to call it. You and that's it's very difficult, although perhaps recently Assange has made it somewhat less difficult
in a variety of ways. So previously, when he was just disclosing information and kind of remaining in the background, he might have looked very much like a just a publisher of information. But as he's been cooperating with the Russian intelligence et cetera, could be easier for prosecutors to show that he was acting with, you know, a purpose to harm the United States that an ordinary journalist, of
course would not have. Does this establish a precedent? I take it that that's one of the things that news organizations and defenders of the First Amendment are worried about. It. Again, it depends a bit on what the government proves and what the court requires a government to prove. A court could interpret the statute to require a showing that Assange acted, you know, with some bad purpose to harm the United States,
harm the security of the United States. I think if it does that, then it's not as much of a precedent because of as they said, journalists, generally, you do not act with that purpose at all. They act with the purpose of of informing the public. If the government does not have to prove that if the if the court doesn't require them to, then it is a broader precedent and raises more concerns. So the extradition is ahead.
The extradition fight. The question is whether the UK will extradite directly to the US or to Sweden, where prosecutors are investigating rape allegation against Assange. Will the step up of these charges the escalation help in the in the US is attempt to get Assange here first? Yeah, it's hard to say because our extradition treaty with the UK has an exception for so called political offenses, like most
extradition treaties do. And um, you know, some might say that that prosecuting someone for publishing government information because it could implicate the First Amendment, that should be a political offense, and maybe the UK wouldn't extradite, But actually the UK has much more severe rules about publishing official secrets than we do, and don't have a First Amendment UM or
any kind of similar similarly broad protections. So it's a it's a. It's a little unclear I think which way this will cut in terms of accelerating or or or decelerating his extradition. The Obama administration made a decision not to prosecute Assange for espionage. Does this show any change in policy in the Trump administration or is it not
indicative of anything outside this particular their case? Sorright? You could show a change in policy, again, you know, depending on both what you know, we the public think, and what the court requires the government to prove about Ossge personally.
If if the if the government's going to argue in a court, would accept a theory that's simply publishing this information which he was not entitled to have, that's enough, then this could show a really a big change in policy that could potentially sweep in a lot of what reporters for places like The New York Times do every day.
But again, if if there's a narrower construction of the of the statute that he's charged under, and there needs to be the showing of of intent to harm um, then you know that then it wouldn't be quite as quite as broader, quite as concerning. In a an article today in the New York Times. The Times said that, like many other news organizations it published, it obtained precisely the same archives of documents from Wiki leaks without authorization
from the government. But the Time MS took steps to withhold the names of informants in the subset of files that it published. Is that legally different from publishing the
other classified information. Well, if if there does need to be some kind of showing of bad intent or harm, then yes, I mean, one of the fairly outrageous things that Wiki leagues did was to expose the names of foreign human rights activists and your religious dissidents and other people who had been confidentially communicating with the United States
government about problems within their own countries. And certainly, you know, broadcasting those names to anyone in the world could really, you know, both harm the United States interest but also you know, directly physically harm particular people, you know, potentially. So, um, you know, certainly the New York Times acted much more responsibly than Wiki leaks did. And um, you know, under the very broad statute that we have here, that doesn't
necessarily make a difference. But again, if the court construes a statute more narrowly looking for bad intent, than than The Times and other responsible news organ nations could take comfort from from their much more responsible practices. About a minute here, Andrew, there is no mention no charges relating to the hacking of the presidential election. Is that surprising? Well,
perhaps not coming from Trump's Justice department. Um, you know, we all know what the president thinks about about the hacking. I mean he's still, you know, fairly recently he's calling it a hoax and a witch hunt. Um, and you know. But but also probably more importantly, to prosecute a case like that would probably have to reveal an extraordinary amount of cyber and other secrets of our intelligence agencies about
how they gathered that information. And generally our government doesn't want to sort of blow really great secrets like that just in order to get a criminal prosecution of a single person. Thanks so much, Andrew, As always as Andrew can to professor at Fordham Law School. Thanks for listening to the Bloomberg Law Podcast. You can subscribe and listen to the show on Apple podcast, SoundCloud and on Bloomberg dot com slash podcast. I'm June Brosso. This is Bloomberg m M