Prosecuting Julian Assange for Espionage Is a Coup Attempt Against the First Amendment

Attorney Jameel Jaffer and The Intercept's Ryan Grim are this week’s podcast guests.

Photo illustration: Elise Swain/The Intercept, Getty Images

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The Trump administration’s prosecution of Julian Assange is an all out assault on freedom of speech. This week on Intercepted: For the first time in U.S. history, the government is criminally prosecuting a publisher for printing truthful information. Whether Assange is extradited or not, this case casts a dangerous cloud over aggressive national security reporting and means criminalizing journalism is on the table. Jameel Jaffer, director of the Knight First Amendment Institute at Columbia University and former top lawyer at the ACLU, analyzes the indictment and explains why he believes this case represents a grave threat to a free press. As Democrats continue to debate whether to initiate an impeachment inquiry against Trump, Nancy Pelosi seems to be getting under The Donald’s skin. The Intercept’s Ryan Grim explains Pelosi’s rise to power within the Democratic Party, her political origins, and what her possible end game strategy is for Donald Trump. Grim also discusses his new book, “We’ve Got People: From Jesse Jackson to Alexandria Ocasio-Cortez, the End of Big Money and the Rise of a Movement.”

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Announcer: When reality seems too difficult for us to face, we retreat behind defensive mechanisms.

Donald J. Trump: Every time I go into a room, if there aren’t cameras, they come out and say “Oh, he was yelling. He was screaming.”

Announcer: His defense mechanism is a special type of rationalization that we call projection.

DJT: Kellyanne, what was my temperament yesterday? Mercedes, you were in the room yesterday. I walked in. What was my attitude when I walked in? Did I ever scream? Larry, were you at the meeting?

Larry Kudlow: Yes, sir.

DJT: Oh, fantastic. Larry, you were there. There were many people there by the way. We can get you 25, 20 other people to say this. What was my attitude yesterday?

Announcer: Pinwheeling through life, defenses held high, darting away from reality through the escape hatches of his emotional being.

DJT: Sarah, we were just talking about the meeting yesterday. The narrative was I was screaming and ranting. Couldn’t have been more calmer then, respectfully say sorry to inconvenience you and I left the room. These are bad people. You know a lot of people say deep state, I don’t say deep state. We have a lot of bad people and I think they’re being found out.

[Everybody’s Talkin’ by Harry Nilsson plays.]

[Music interlude.]

Jeremy Scahill: This is Intercepted.

[Music interlude.]

JS: I’m Jeremy Scahill, coming to you from the offices of The Intercept in New York City. And this is episode 95 of Intercepted.

DJT: When you report fake news, you are the enemy of the people. Go ahead.

When I say the enemy of the people, I’m talking about the fake news.

The fake news is in fact, and I hate to say this, in fact, the enemy of the people.

A few days ago, I called the fake news the enemy of the people and they are. They are the enemy of the people.

The fake news media they are truly an enemy of the people. The fake news, enemy of the people. They really are. They are so bad.

JS: We are at a historic and dangerous crossroads right now in this country. The Trump Justice Department has openly declared war on the First Amendment. And the case that they have chosen to pave the way for criminally prosecuting journalists and publishers is that of Wikileaks founder Julian Assange and they are doing it by using the Espionage Act. This is the first time in the history of this country, the first time since the First Amendment to the U.S. Constitution was enshrined as law, that the government of this country is criminally charging a publisher for publishing truthful information.

What is at issue here is not John Podesta’s emails. It’s not the sexual assault allegations against Julian Assange in Sweden. It’s not the 2016 elections. It’s not about Russia or the Trump campaign. This indictment centers around the exposure of war crimes by the forces of the most powerful nation on earth. It’s about publishing documents that laid bare the blackmail, the backroom deals, the threats, the lies of the US government in nations across the world. It is retaliation against an organization that presented to the world video evidence of a U.S. helicopter massacre of Iraqi civilians and two Reuters news journalists.

[Audio from WikiLeaks’ “Collateral Murder” video plays.]

JS: This indictment is revenge for publishing documents on the U.S. kill campaigns in Iraq and Afghanistan, for publishing documents about torture and the creation of proxy forces in Iraq. But this is not just about Wikileaks and Julian Assange. At the heart of the 17 Espionage Act charges against Assange is the most extreme threat to press freedom and freedom of speech in the modern era. Not even Richard Nixon went this far, despite wanting desperately to criminalize journalism.

Richard Nixon: I have never heard or seen such outrageous, vicious, disturbing reporting in 27 years of public life. Don’t get the impression that you aroused my anger. One can only be angry with those he respects.

RN [on tape]: The press is the enemy. The press is the enemy. The establishment is the enemy. The professors are the enemy.

JS: The case against Julian Assange is actually a de facto prosecution of all publishers. If this succeeds, then the pandora’s box is open. Tomorrow, this administration could be going after the publishers of The New York Times or The Washington Post or The Guardian. They are already going after The Intercept, but this too could escalate to actually prosecuting journalists. This administration wants to put journalists in prison. The New York Times was a publishing partner with Wikileaks. It did story after story after story on the very documents Wikileaks published that were provided by U.S. army whistleblower Chelsea Manning. That’s what this case is about.

So too did The Guardian and Der Spiegel and dozens of other news organizations. Are they going to get indicted next on espionage charges? Think about that. Really think about that because that is where all of this leads. The editor of The New York Times, Dean Baquet, even defended Wikileaks publication of DNC emails. Why? Because they are newsworthy and publishing them was a clear act of journalism.

Dean Baquet: I think that truth trumps strategy and everything else, every day. And if a powerful figure writes emails that are newsworthy, you just gotta publish them. I mean, look, Edward Snowden stole documents. We, The Guardian, The Washington Post, and others reported them. I think they provoked one of the most compelling arguments about national security we’ve had in a generation.

JS: It may be tempting for some people to say they don’t care what happens to Julian Assange or to take some pleasure in the apparent irony that Assange is now being indicted under the administration of a man who regularly praised Wikileaks during the 2016 elections.

DJT: Wikileaks, I love Wikileaks.

It’s been amazing what’s been coming out on Wikileaks.

The wonder of Wikileaks.

Wikileaks has done a job on her, hasn’t it?

Oh, we love Wikileaks. Boy they have really — Wikileaks!

This Wikileaks is like a treasure trove.

JS: When we talk about this espionage case against Julian Assange, it doesn’t matter what anyone thinks of him as a person. This is a precedent setting moment of grave historical and moral importance. And this prosecution is what people like Dick Cheney have long wanted — to criminalize journalism that holds war criminals responsible or exposes their crimes for all the world and the American public to see. It is part of the worldview of people like the current Attorney General, William Barr. He is a militant believer in extreme executive power and the theory of the Unitary Executive.

For these people, Iran-Contra was a model for how to conduct foreign policy, not some massive crime. And it was William Barr, of course, who pardoned Iran Contra criminals. It was Dick Cheney who, as a member of Congress, wrote the minority report celebrating the Iran-Contra operations while his colleagues worked to expose the criminality at play there. We are all living through this arch of history right now. It’s a do or die moment for free speech and the free press. Trump likes to talk about how he believes there was an effort to take down the president or engage in a coup. But the coup is happening in front of our eyes. It is nothing short of an attempt to overthrow the Constitution of the United States. And officials like Mike Pompeo who ran the CIA and is now Secretary of State laid the groundwork by painting Wikileaks as a terror-type organization, an intelligence service.

Mike Pompeo: WikiLeaks walks like a hostile intelligence service and talks like a hostile intelligence service, and has encouraged its followers to find jobs at the CIA in order to obtain intelligence. It’s time to call out WikiLeaks for what it really is – a non-state hostile intelligence service, often abetted by state actors like Russia. We have to recognize that we can no longer allow Assange and his colleagues the latitude to use free speech values against us, to give them the space to crush us with misappropriated secrets as a perversion of what our great Constitution stands for. It ends now.

JS: In April of 2017, I interviewed Julian Assange when he was still holed up inside the Ecuadorian embassy in London right after Pompeo delivered this speech.

Julian Assange: Look, Pompeo said explicitly that he was going to redefine the legal parameters of the First Amendment to define publishers like WikiLeaks in such a manner that the First Amendment would not apply to them. What the hell is going on? This is the head of the largest intelligence service in the world, the intelligence service of the United States. He doesn’t get to make proclamations on interpretation of the law.

That’s a responsibility for the courts. It’s a responsibility for Congress. And perhaps it’s a responsibility for the attorney general. It’s way out of line to usurp the roles of those entities that are formally engaged in defining the interpretations of the First Amendment. For any, frankly, any other group to pronounce themselves, but for the head of the CIA, to pronounce what the boundaries are of reporting and not reporting are is a very disturbing precedent.

JS: President Barack Obama had no love for Julian Assange or Wikileaks. This happened on Obama’s watch but his administration ultimately decided not to bring this Espionage case, the case that Trump’s Justice Department is now pursuing. Barack Obama was terrible on press freedom. He prosecuted 8 journalistic sources under the Espionage Act. So why didn’t Obama prosecute this case? Here are the words of the former Obama Justice Department spokesman Matthew Miller in 2013.

He said: “The problem the department has always had in investigating Julian Assange is there is no way to prosecute him for publishing information without the same theory being applied to journalists. And if you are not going to prosecute journalists for publishing classified information, which the department is not, then there is no way to prosecute Assange.” That was the former Justice Department spokesperson Matthew Miller speaking in 2013.

So, the Obama policy was to throw the book at whistleblowers and journalistic sources, but as a matter of policy, they declined to take it a very dangerous step further and actually charge a publisher with publishing truthful information. Now, that’s precisely what the Trump administration is doing.

The Washington Post reported last week that two prosecutors involved in the case against Assange “Argued against the Justice Department’s decision to accuse him of violating the Espionage Act because of fear that such charges posed serious risks for First Amendment protections and other concerns.” According to the Post, “Part of the concern among Justice Department veterans was that prosecutors had looked at the same evidence for years during the Obama administration and determined such charges were a bad idea. In large part because Assange’s conduct was too similar to that of reporters at established news organizations.” The Post goes on to say “People familiar with the Assange case said that the Justice Department did not have significant evidence or facts beyond what the Obama-era officials had when they reviewed the case.”

And there’s another possibility at play here. It is going to be difficult for the Trump administration to get Julian Assange extradited to the U.S. because the espionage charges are political. It is, of course, possible that a right-wing government in the U.K. could make some deal and hand Assange over but that’s much more difficult with the new Espionage Act indictments. It’s possible that some people within the Trump administration know this and that the point is not just to prosecute Assange but to have this dangerous cloud hanging over every news outlet and reporter who does aggressive national security reporting or works with whistleblowers. It’s an ominous threat and it may be very beneficial for Trump to just have that floating in the air rather than have a trail where Assange has the best lawyers fighting this case and major news organizations standing with him against the prosecution.

Every single one of us should be extremely concerned about the prosecution of Julian Assange under the Espionage Act. Whether you like it or not, the battle to protect the First Amendment to the U.S. Constitution right now is also the battle to defend Julian Assange from the dangerous use of the Espionage Act. Failure to stop this prosecution will have far-reaching consequences. It could mean that the journalists or publications that you read every day could be next. The administration is banking on the idea that so many people, including many Democrats, hate Julian Assange so much that they won’t raise a ruckus over this case.

William Barr and Donald Trump and Mike Pompeo want you to hate Julian Assange so much that you will give up your own freedoms just to watch him burned at the stake. It is the same mentality that got us the PATRIOT Act with only one, one, U.S. Senator voting against it. The same mentality that gave Bush and Cheney a blank check for war in the immediate aftermath of 9/11 when only one member of the House of Representatives voted against it.

No one who cares about their freedom of speech or the freedom of the press should fall for this villainous tactic. Trump and his administration talk about journalists the way Joseph Goebbels talked about journalists. They want to lock up reporters. They want to shut down news organizations who aggressively investigate Trump. If you don’t see this attack on Assange under the Espionage Act as one of the most absolutely dangerous threats from this administration when it comes to the media, then you’re not paying attention or you’re allowing yourself to be used by Trump and his dangerous team of political prosecutors.

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Attorney Jameel Jaffer Analyzes the Indictment Against Julian Assange and the Threat to Press Freedom

JS: Joining me now to discuss all of this is Jameel Jaffer. He is the Director of Knight First Amendment Institute at Columbia University. He’s the former Deputy Legal Director at the American Civil Liberties Union. Jameel was one of the main lawyers fighting against the Bush and Obama administrations assassination programs and violations of civil liberties.

Jameel Jaffer, welcome to Intercepted.

Jameel Jaffer: Thank you.

JS: So on May 23rd, the Justice Department issued the superseding indictment in the Julian Assange case, the founder of WikiLeaks. What does this indictment allege that Julian Assange did that’s criminal?

JJ: It is very difficult to tell from this indictment precisely where the government thinks the line is. So, plainly the indictment includes allegations relating to Assange’s agreement with Chelsea Manning to help hack a particular password relating to government database —

JS: This was the first charge that they floated that triggered the extradition request?

JJ: Right, there was an earlier indictment, right, just a few weeks earlier. That indictment was for a violation of the Computer Fraud and Abuse Act. This indictment is for violations of the Espionage Act, 18 counts. And most of the indictment describes conduct that ordinary journalists, investigative journalists, national security journalist engage in every day. That’s why I say it’s difficult to see where the government thinks the line is because virtually every story about national security policy that’s on the front page in The New York Times or The Washington Post is the result of conduct of the kind that is described in this indictment of Assange. So, what constitutional line is it that Assange is on one side of and “journalists” are on the other side of? You know, that’s the question that I think we need to ask.

JS: You’ve been immersed in these issues for many years, especially in your prior work at the ACLU. You were one of the main people litigating on issues of drone warfare and targeted assassination. A lot of the information we have about those programs come from news organizations publishing documents, including WikiLeaks also publishing documents showing what many people would say are clear war crimes particularly the helicopter gunship attack on Iraqi civilians and Reuters News journalist.

[Footage of U.S. Apache attack helicopter:  

TK: Got a bunch of bodies laying there.

TK: We got about eight individuals.

TK: We got one guy crawling around down there.]

JS: Is there anything in this indictment that would allow someone to say “well, this isn’t journalistic conduct and Assange wasn’t acting as a journalist”? Is there anything in the indictment that the Justice Department is alleging about Assange and WikiLeaks under the espionage charges not the computer hacking stuff that The New York Times, [The] Washington Post, The Intercept wouldn’t also be guilty of?

JJ: Well, so first, I absolutely agree with you that what we know about, you know everything from the Bush administration’s torture policies to warrantless wiretapping, all of that or almost all of it comes from whistleblowers — people who are willing to violate the law, the Espionage Act — because they thought that the public deserved to know more than the government was telling it. As to your question about, you know, what is it that somebody could point to in this indictment that might help distinguish Assange from everybody else. Well, you know there is this agreement that Assange and Chelsea Manning apparently entered into with Assange volunteering or offering to crack a password that would have allowed Manning to access a government database under a different username. So, even if this had been successful it wouldn’t have resulted in Manning been a being able to access any additional documents. But at least according to the indictment, this agreement Assange couldn’t or didn’t actually crack the password. So, nothing happened as a result of this.

JS: But that’s not an espionage-related charge, is it?

JJ: I mean, it’s hard to see how you could charge that alone under the Espionage Act. I think that the government would say that the publication of all this stuff by Assange or certainly the dissemination of it by Manning to Assange violated the text of the Espionage Act and insofar as there is a First Amendment defense, it doesn’t apply to somebody who entered into this kind of agreement. That’s the way that the government might explain the relevance of that agreement.

The problem with that is that the agreement came very late in this process of Manning providing information to Assange. Most of the documents were provided long before they entered into this disagreement. Manning already had access to the documents that she had access to and she had already provided most of them to Assange and she didn’t get access to any more documents as a result of this agreement. So, it’s certainly not obvious how that agreement can play this sort of crucial role that the government seems to think it does.

JS: In reading some of the indictments of journalistic sources or whistleblowers, alleged whistleblowers under the Trump administration, there’s a narrative that seems to have as part of its goal criminalizing normal journalistic tactics. For instance, suggesting to sources to use encryption or trying to figure out secure ways of communicating with sources. The New York Times, The Washington Post, The Intercept all news organizations now have some form of a portal where they are soliciting leaks.

JJ: Yeah.

JS: They’re soliciting leaks on this president. They’re soliciting leaks on national security issues. How is it different what The New York Times or The Intercept is doing when you compare it to WikiLeaks from this indictment? It really seems like much of the trade craft of journalism these days, the tools for journalism these days are being by default criminalized in these indictments.

JJ: Investigative journalists spend time cultivating sources, communicating securely with those sources, protecting their sources’ identities. Those are things that journalists do routinely and legitimately. And this indictment spends a lot of space describing those acts in terms that tar those acts by association with the Espionage Act. I actually think that this indictment is aimed at the media. It’s not about Assange specifically. The indictment is about the media and I say that in part because the indictment is framed so broadly. The language in the indictment is describing journalism, but also because I don’t think that the Justice Department would have filed this indictment if its main concerns or its main goal was to bring Julian Assange to an American courtroom.

Espionage is uniformly regarded to be a political crime which means that countries don’t extradite for espionage offenses and the Justice Department knows this very well. When the only indictment that has been filed was for violation of the Computer Fraud and Abuse Act, it was entirely conceivable that Assange would be extradited to the United States to face trial for that charge. But this, I can’t see how the Justice Department wouldn’t have known that filing Espionage Act charges would profoundly complicate its efforts to get Assange extradited to the United States.

The best way to understand the indictment is it’s not about Assange. It’s about the American media. It’s about sending a message to investigative journalists or national security journalists whose work is described in the indictment. And the message is what you’re doing is possibly criminal. You know, you mentioned some of the practices that are common across the American media landscape. I hope that media organizations won’t reconsider those practices in light of this indictment but I’m sure that their general counsels in many media organizations in the United States right now who are thinking carefully about whether they need to operate differently as a result of this message that the Justice Department seems very intentionally to be sending that journalist who practice this kind of journalism are at the very least, on thin ice.

JS: Knowing what you just said about complicating the extradition, why would they spend the resources and engage in this case if they really knew there was almost no chance? You really think it’s centrally about threatening news organizations?

JJ: I think so. Yes, and I think that that is a plausible explanation for their decision given everything that led up to this. You know, we have seen an increasingly aggressive use of the Espionage Act over the last 18 years against, principally, leakers. Historically, it was very rare for the government to use the Espionage Act against people who gave information to the press but starting with the Bush administration and then much more aggressively under the Obama administration, the Justice Department has you used the Espionage Act to go after whistleblowers and leakers who gave classified information to the press. And you know the Obama administration prosecuted more of these cases than all previous administrations combined. So, that was a very aggressive use of the Espionage Act.

But we until now, hadn’t seen the Justice Department cross this next line and the next line is not just against whistleblowers and leakers but against publishers and that’s the line that they’ve now crossed. But I think given everything that led up to this the statements that President Trump and then-Attorney General Sessions gave to the media last year and the year before about leak investigations.

Jeff Sessions: This include leaks to both the media and in some cases even unauthorized disclosures. Nearly as many criminal referrals involving unauthorized disclosures of classified information as we received in the previous three years combined.

JJ: The Attorney General said to the press that the Justice Department had 27 ongoing leak investigations, which is nine times as many as the Obama administration had going.

When Jim Comey’s memos got leaked to the press, Comey’s memos described a meeting in which Comey himself suggested that the government should jail more leakers and President Trump said why stop at leakers, we need a reporter in prison as well, then they’ll learn. I think it’s you know, perfectly plausible that the point of this indictment was not to ensure that Julian Assange would answer for whatever crimes the government thinks he should answer for. The purpose of the indictment was to chill investigative journalism that challenges the government’s authority to decide what information the public should have about controversial national security policies.

JS: Let’s also remember that very senior U.S. officials and prominent political figures have suggested assassinating Julian Assange, sending a drone to go and get him. I mean, one thing about Julian Assange is he does have a pretty interesting —

JJ: Brings out the best in people.

JS: Brings out the best in people but he also has an interesting track record of being right about the actions of the state and —

JJ: Well, he does in some respects but you know, you asked me earlier what distinguishes Assange. So, the other — and I made one point which is this you know, this agreement that Assange entered into with Chelsea Manning. There is something else that the government points to in the indictment which is Assange’s decision to publish the names of human sources, right, indiscriminately. And you know, I actually think that that decision was reckless and unethical, his decision to publish those names. It doesn’t trouble me that Assange is criticized for his decision to do those things and there might even be scenarios in which I could imagine some form of legal accountability for the decision to publish those names indiscriminately.

JS: Assange would take issue with your characterization of this and —

JJ: As indiscriminate? OK, so just stipulate that it’s indiscriminate with the asterisk, OK, that maybe I’m wrong about that. But if it was indiscriminate, right, I still think that the dangers of allowing the government to file Espionage Act charges against any publisher who makes that kind of mistake even recklessly, right, far outweigh the dangers of allowing publishers to make those decisions for themselves. But that’s just my sort of response to your I think, entirely fair point that Assange has been right about many things. Yes, absolutely. He’s also been wrong about some things.

JS: Don’t get me wrong here, and I have questions about non-Manning provided documents published by WikiLeaks and some of the decisions that he’s made but that’s not what this is about at all.

JJ: That’s right.

JS: And in fact, that raises the question, these were primarily documents published around 2010-2011 that we’re talking about here. This isn’t about Russia. This isn’t about the 2016 election. This is about Chelsea Manning and documents on the State Department, U.S. military, war crimes, etc.

JJ: These are documents of huge public significance, in my view.

JS: No one talks about what they actually showed. But why did President Obama and his Justice Department decide not to bring this case? The former Obama-era Justice Department spokesman, Matt Miller said the following back in 2013: “The problem the department has always had in investigating Julian Assange is there’s no way to prosecute him for publishing information without the same theory being applied to journalists.” Why ultimately didn’t Obama go forward with this? He was just, you know, racking and stacking journalistic sources under the Espionage Act. Why didn’t they do this?

JJ: I take that statement at face value because it seems plausible to me that the Obama administration looked very carefully at charging Assange or charging WikiLeaks and decided that there’s no line that could be drawn between WikiLeaks and media organizations that the Obama administration did not want to take on and whose work the Obama administration respected even if they disagreed with individual publishing decisions occasionally and that they concluded that the First Amendment damage would be far more significant than they could defend and for that reason they decided not to file charges. All that seems plausible to me.

The current administration changed course not because they had a different view of Assange or because they had a different theory of prosecuting Assange specifically, but because they wanted to send a message to precisely the media organizations that some people in the Obama administration were, this may give them a little more credit than they deserve, but trying to protect. The Obama administration didn’t want to do this kind of damage to the First Amendment. This administration is motivated by the desire to do that kind of damage to the freedom of the press. I think that’s what this indictment is about.

JS: UCLA law professor Eugene Volokh broke down the charges in the indictment, including the ways in which Assange may not be protected under the First Amendment in his view, but he also points out that counts that criminalize publishing materials known to have been illegally leaked. He said this: “In Bartnicki vs. Vopper, 2001, the court made clear that third parties are generally free to publish material that they know was illegally gathered.” He then goes on to write, “But the government’s theory appears to be that this doesn’t apply to illegal leaks of national defense information.” Is the government trying to build a case to criminalize publication of leaks that have at their center “national defense information”? What do they even mean by that phrase, national defense information?

JJ: That’s a phrase from the Espionage Act. It’s not defined in the Espionage Act, but courts have generally interpreted that phrase to mean classified information. Anything that’s classified is within the reach of the Espionage Act, which is, you know, an extremely troubling thing because the Espionage Act reaches not just the initial disclosure by the leaker to the press but also, the disclosure by the press to the public and any subsequent disclosure. So, if you read the Espionage Act literally, even our conversation right here about things that were originally disclosed by Manning to Assange and then reproduced, you know, a million times in the New York Times or Der Spiegel or whatever or The Intercept, right and now we are having a conversation about those disclosures, even this conversation if you read the Espionage Act literally, is unlawful which is crazy, right?

So, for many years most legal scholars, I think every single First Amendment scholar, has had the view that the Espionage Act would be unconstitutional as applied in some circumstances, but in which circumstances it’s constitutional and in which circumstances it’s unconstitutional, that’s a very murky question. There is this case that Professor Volokh refers to Bartnicki from 2001 where the court held that the publication of an intercepted, illegally intercepted phone call couldn’t be prosecuted. The First Amendment barred the prosecution because at least in a situation where the publisher hadn’t participated in the illegality. So, then there’s the question: well, what does this, you know, concept of participation in the illegality mean? And, you know, one theory of the Assange indictment is that the government believes that by offering to hack this password, Assange became a participant in the illegality.

But you know the problem with that theory is that illegality was not the source of the documents. The documents were all leaked or almost all of them were provided to Assange before that illegality took place. So, that’s the trouble with that particular theory. So, if you take that theory out of the equation then what are you left with? You’re left with what Eugene Volokh says is, you know, this in a way much broader theory that what distinguishes Bartnicki in the government’s view is not that Assange was a participant in the illegality, whereas the publisher and Bartnicki wasn’t, but that Assange was publishing national defense information or government secrets, you know, national security secrets, whereas Bartnicki didn’t involve national security secrets. You know, if that’s the government’s theory, then it really does mean that national security journalism is criminal.

JS: One of the top lawyers under the Bush administration, Jack Goldsmith, who is a co-founder of the Lawfare blog wrote the following on this point: “The New York Times menu, like on their webpage includes Secure Drop, ‘an encrypted submission system set up by The Times [that] uses the Tor anonymity software to protect [the] identity, location and the information’ of the person who sends it.” He said, “Like WikiLeaks, these reporters and organizations encourage the sources to provide the ‘protected information’ for public dissemination and also like WikiLeaks, they often encourage the sources to engage in a ‘pattern of illegally procuring and providing protected information.” This was a top lawyer under George W. Bush.

JJ: Yeah, yeah, you know, it goes back long before Secure Drop, right? Now, as you say, media organizations use Secure Drop to —

JS: Woodward was meeting Deep Throat in a garage, was that criminal?

JJ: And, you know, I think The New York Times has probably had a tip line for you know, a hundred years, right? So, this is not new. This is journalism. This is what it’s always been.

JS: If this prosecution were to go forward and Assange was convicted under the Espionage Act, what would that mean for the First Amendment and for freedom of the press in this country?

JJ: You know, I think it would be a huge blow to the freedom of the press and more importantly a huge blow to the public’s ability to understand government conduct and to hold government decision-makers accountable for their decisions. If we’ve learned anything from history, it’s that relying on the people who put these programs in place to tell us the full story about the effectiveness and lawfulness and morality of these programs, you know, it would be a huge mistake. You know, we know what the Bush administration told the public about the interrogation of prisoners and then we know what we learned from whistleblowers and from investigative journalism.

George W. Bush: This government does not torture people. You know, we stick to U.S. law and our international obligations.

JJ: And what the government was actually doing was waterboarding prisoners using the same techniques that the Viet Cong had used, right, on American prisoners. You know, you see a similar divergence of narratives with respect to the drone program, right, where the government is saying, you know, that civilian casualties are in the single digits.

Barack Obama: What we have been very cautious about is making sure that we are not taking strikes in situations where for example, we think there’s the presence of women or children or if it is a normally populated area.

JJ: Journalists like you who actually report, you know, based on conversations with people on the ground and going to the places where these drones are used find out that civilian casualty numbers are in the hundreds or even thousands. This is a pattern that goes back long before 9/11 but I think since 9/11, it’s probably been especially pronounced where you know, what the government tells us about national security policy is quite different from what is actually true about national security policy.

JS: Are we on the road toward having an Official Secrets Act?

JJ: If the government were —

JS: Successful.

JJ: Were successful in prosecuting Assange on the theory that is laid out in this indictment, it would essentially be introducing an Official Secrets Act. I worry that you know, prosecuting Assange is actually not even necessary to at least getting us some way towards that end because you know, news organizations are going to have to now operate under the shadow of this indictment and it’s an indictment that names Assange but describes the media. You know, that’s the problem that the indictment is prosecutorial indictment, but what’s being prosecuted is not just Assange, it’s the press.

JS: Jameel Jaffer, thanks for all the work that you have done and continue to do and thanks for being with us.

JJ: Thank you.

JS: Jameel Jaffer is the Director of Knight First Amendment Institute at Columbia University. He’s also the former Deputy Legal Director at the ACLU. You can find him on Twitter at Jameel Jaffer

[Music interlude.]

Ryan Grim Discusses His New Book, “We’ve Got People”

JS: There is a very mild, collegial debate brewing among Democrats in Congress: to impeach or not. Calls are mounting for the opening of an impeachment inquiry and the effort now has the support of at least one Republican congressman, Justin Amash, the libertarian politician from Michigan.

Justin Amash: Nonetheless we have a job to do and I think we owe it to the American people to represent them, to ensure that the people we have in office are doing the right thing, are of good character, aren’t violating the public trust.

JS: Nancy Pelosi, the House speaker, has not shown any sign that she will back such a move imminently and she appears to be opting for a tactic of trying to drive Trump insane. She said this to reporters last week:

Nancy Pelosi: We do believe that it’s important to follow the facts. We believe that no one is above the law, including the President of the United States, and we believe that the President of the United States is engaged in a cover-up, in a cover-up. And that was the nature of the meeting.

JS: Trump then staged his massive tantrum and put on a performance of calling off a meeting with congressional Democrats about infrastructure and marching out to the Rose Garden to denounce the Mueller investigation and Nancy Pelosi, in general.

DJT: I just saw that Nancy Pelosi just before our meeting made a statement that we believe that the President of the United States is engaged in a cover-up. Well, it turns out, I’m the most — and I think most of you would agree to this — I’m the most transparent president probably in the history of this country.

JS: Trump seems to be going nuts from the Democrats’ continuing probe into his possible obstruction of justice, corruption, abuse of power. And regarding Pelosi, the right-wing and Trump backers hit back. A doctored video featuring a slowed-down Nancy Pelosi went viral on social media. Rudy Giuliani and Trump himself shared that altered video. Trump also called Pelosi, “a mess” and Pelosi tweeted back, “When the ‘extremely stable genius’ starts acting more presidential, I’ll be happy to work with him on infrastructure, trade and other issues.”

Nancy Pelosi is of course, the top Democrat in Congress. She is the House Speaker, third in line to the presidency. Despite Trump controlling the White House and the GOP with a firm grip on the Senate, Nancy Pelosi is incredibly powerful, and it’s important to understand who she is, how she rose to power, and what her endgame strategy with Trump might look like.

To discuss this, and the current state of the Democratic Party, I’m joined by my colleague Ryan Grim, The Intercept’s DC bureau chief. Ryan has a new book out this week that provides an essential in-depth context for the political landscape that we’re in now. It is called “We’ve Got People: From Jesse Jackson to Alexandria Ocasio-Cortez, the End of Big Money and the Rise of a Movement.”

Ryan Grim, welcome back to Intercepted.

Ryan Grim: It’s good to be here.

JS: Congrats on the book.

RG: Thank you.

JS: For people that don’t know much about Nancy Pelosi and you cover this in the book as you kind of trace the modern history of the Democratic Party, what is the Nancy Pelosi story? How did she end up where she is in the third most powerful position in the U.S. government?

RG: It’s been fun to watch this precise moment because it’s such an encapsulation of her career and not just who she is but like who our entire generation is. And so, she herself has a fascinating background. She was raised by a kind of mob-connected Congressman/Mayor of Baltimore. So, she learned, you know, actual brass knuckles politics from a very early age then moved out west. And so, she has this like fighting, like actual fighting liberal sensibility that’s quite rare. She turned out to have an extraordinary ability to raise money. And so while she was raising five children, she was also acting as a fundraiser for the party and kind of, working her way up through the party ranks in the 1970s and 1980s and she had not run for any elected office. She was a very much behind the scenes fundraiser/operative and she became very close with a guy named Phil Burton who was also known as a fighting liberal.

He was a guy who was not only progressive but wanted to punch you in the face and also, was all about raising a ton of money and screwing Republicans. Essentially, Pelosi is Burton’s Lieutenant, kind of, an enforcer and a fundraiser back home. He dies in 1983. His wife takes over for him and serves four years. She then dies. On her deathbed, she endorses Nancy Pelosi to take her seat. So, now there’s a special election, 1987. Her top opponent is the vice chair of the DSA, Democratic Socialists of America, openly gay man running on basically Reagan’s ignoring the AIDS epidemic.

JS: What is the position that Pelosi’s running for at this point?

RG: Congress. And so it’s a real establishment versus insurgent race. Nancy Pelosi likes to say that she’s from the Bay Area and so she understands the left. That’s true in the sense that she beat the left to win her seat. It’s not that she organized support among the left, but she barely won. If they were using the current top two system, I think she would have lost her first seat and there would be no Nancy Pelosi.

NP: Hello, I’m Congresswoman Nancy Pelosi. Thank you for the privilege to represent you and San Francisco in Congress. I’m grateful for the honor and hope to make you proud of my service there. Thank you.

RG: But she wins in 1987. She joins Steny Hoyer who’d been there for a while already and a class of Democrats who came in in the late 70s and 80s, kind of just as the party was ending. And in 1980, not only did you have Ronald Reagan elected and have him re-elected in 1984, but in ’80, a whole slew of liberal lions who’d been running for president just four years earlier, who’d been serving five, six terms, famous people at the time like Birch Bayh, Frank Church all upset by this upstart, insurgent Republicans. And so, you’ve got this rise of the new right, Newt Gingrich elected in ’78 and then Reagan in ’80 and it teaches people like Pelosi that liberalism is going to cost them elections, that if they let the country know how Progressive they are, then there’s going to be a backlash. And they learned that lesson over and over throughout the ’80s as Reagan kept pounding them.

Ronald Reagan: Well, the trouble with our liberal friends is not that they’re ignorant, it’s just that they know so much that isn’t so.

RG: They still controlled the House of Representatives, even though they lost the Senate and the White House. And so, what they did is say, “We’ve got the House, let’s go to the banks. Let’s go to the corporate America and say look, we’re not necessarily doing a lot for you, but we control the House. So, you’ll pay up.” And that was the way that they figured that they were going to be able to match Republicans.

JS: When you say pay up, are you talking about campaign contributions?

RG: Right, because prior to 1980, big money was not as much of a thing in politics, you know, they had labor support. They had, you know some corporate money and some wealthy donor money, but it wasn’t anywhere near the scale that we have today. And so, they diagnosed their 1980 problem as Republicans outspent us and outmaneuvered us. So, we need to match them dollar-for-dollar and to do that, we need to use our position in the House of Representatives and extract money from industry. That leads in an obvious direction. It reshaped the party.

JS: What was the impact of Clintonism on the Democratic party?

RG: You know, vanquishing the Rainbow Coalition in 1988, Jesse Jackson following Harold Washington before him, kind of, organizes this grassroots movement to say “Look, you don’t have, you don’t need big money. You don’t need to try to get back these Reagan Democrats. What you need to do is expand the electorate go out and register new voters, confront this rise of the new right with a new left.”

Jesse Jackson: What does it mean in the real world?  It means the top one percent of our size is paying 20 percent less in taxes. The bottom ten percent paying 20 percent more. It means reverse Robin Hood, taking from the poor and giving to the rich, Reaganomics.

JS: What he was saying and the vision that Jesse Jackson had about multiculturalism and needing to grapple with race and sexual orientation, I mean, he was way ahead of the curve and he lost to the big establishment Democrats and that system churned out Bill Clinton and the response to Reagan and Bush ultimately was a pretty conservative Southern governor in Bill Clinton.

RG: And what people don’t realize because it’s gone down the memory hole, was that Jackson very nearly won.

JS: The Democratic primary?

RG: Yeah, very nearly won the Democratic primary and then he’s running against George H.W. Bush which you know, who knows? You know, it’s hard to conceive of but who knows? Came very close and the Democratic party had a complete apoplectic meltdown when it appeared like he actually might seize the nomination.

JS: You’re talking about in ’88?

RG: ’88. So, instead they went with the electable Michael Dukakis.

MIchael Dukakis: By working together to create opportunity and a good life for all, all of us are enriched, not just an economic term but as citizens and as human beings.

Announcer: For a new era of economic greatness in America, Michael Dukakis for president.

RG: That then opens the way for these new Democrats, Bill Clinton. And Bill Clinton’s famous Sister Souljah moment which this is summer of 1992.

JS: Yeah, she was a young rapper and this was at the moment too when you had the rise of NWA and other so-called gangster rap that then the Joe Liebermans of the world, the Tipper Gore’s of the world talked about how this is what’s really destroying, you know, white American society is these gangster rappers.

RG: And so, Clinton famously calls her out.

Bill Clinton: You had a rap singer here last night named Sister Souljah. I defend her right to express herself through music, but her comments before and after Los Angeles were filled with the kind of hatred that you do not honor today and tonight. She told the Washington Post about a month ago and I quote “If black people kill black people every day, why not have a week and kill white people? So, you’re a gang member and you’d normally kill somebody, why not kill a white person?”

Last year, she said, “You can’t call me or any black person anywhere in the world a racist. We don’t have the power to do to white people what white people have done to us. And even if we did, we don’t have that lowdown dirty nature. If there are any good white people, I haven’t met them. Where are they?” Right here in this room. That’s where they are.

And when people say that, if you took the words white and black and you reverse them, you might think David Duke was giving that speech.

RG: What’s important is where he did it. This was at the Rainbow Coalition Conference with Jesse Jackson right there on stage. And so, I think that part has also been missed too that it was not just a signal to Reagan Democrats that he’s like willing to take on these black people who were dominating the Democratic Party. It was also a signal to Jesse Jackson and to the kind of, left in the Democratic Party. This is my party now. I’m doing this at your conference. Jackson demanded an apology from him and he never got it. And that was his way of saying “This is my party now.” People also forget Clinton won with 43 percent of the vote because Ross Perot was in as a third party candidate. So, it’s not like he you know, that this new Democratic centrism was some resounding success.

And that more than anything else has become a rallying cry for today’s left that says “Look, if you actually won with this pragmatism, that what you call pragmatism then OK. Then we can have a conversation. If this centrism, if this compromising approach was actually keeping the fascists out of the gates, Ok, then that’s a plausible argument to make, but it’s not.” You got 43 percent with Bill Clinton. You lost to Bush. The one time you took a chance and nominated the unelectable person, Barack Obama, he wins twice. He then pivots to center and loses a thousand seats and we end up with Trump. So the pragmatism isn’t very pragmatic. And so, the new generation which did not experience the trauma of losing to Newt Gingrich and Ronald Reagan doesn’t have the fear of the Republican Party that the Pelosis of the world have.

JS: I want to zero in on the Crime Bill and the so-called War on Drugs under Bill Clinton because it comes up quite often now because of Joe Biden being a sponsor of the Crime Bill.

Joe Biden: And Madame President, we have predators on our streets that society has in fact in part because of its neglect created. Again, it does not mean because we created them that we somehow forgive them or do not take them out of society to protect my family and yours from them. They are beyond the pale many of those people, beyond the pale. And it’s a sad commentary on society. We have no choice but to take them out of society.

JS: For people that don’t have a living memory of it or you know, weren’t around then, explain Clinton’s Crime Bill, race policies, War on Drugs.

RG: Right, crime was an actual problem. It was a problem all across the country and significantly because of the hollowing out of the manufacturing industry and the middle class and working classes that Reagan and the deregulating Democrats brought about in the ’80s. So, you do have a bottoming out and you do have a surge in crime and so a response to that, also a response to the Civil Rights Movement, is just getting tougher and tougher and tougher. And there was there was no political lever to push in the other direction and so, in both primaries, Democratic and Republican, the candidate who could say that they were tougher on crime was the one who was going to win and so it just keeps getting ratcheted up and up and up. Bill Clinton famously calls for a hundred thousand new cops on the street and gets a standing ovation for that.

BC: The savings will be used to put a hundred thousand police officers on the street, a 20 percent increase. It will be used to build prisons to keep a hundred thousand violent criminals off the street. It will be used to give our young people something to say yes to, places where they can go after school where they are safe, where they can do constructive things that will help them to build their lives, where teachers replace gang leaders as role models. All of these things should be done and will be done.

RG: And that’s a cornerstone of the ’94 Crime Bill. The idea is to just jack up sentences, mandatory minimums, three strikes and you’re out. So, you wind up then throughout the ’90s with crime rates falling yet the prison population soaring. So, you’re like wait a minute how are there fewer crimes being committed but yet more and more and more people are in prison? And one of the answers that people are in prison for these extremely long sentences. And so, starting in the early 1980s, you just have practically a straight diagonal line up and you go from fewer than half a million prisoners to well over two million.

JS: At the time the Crime Bill was implemented, I was a student in Wisconsin and I remember Tommy Thompson was the governor, a Republican and he had implemented sweeping so-called welfare reform. When you boil it down to it, it was forcing people to choose between having a job where they can’t make enough money to live or accepting state aid and then having to live your life essentially in a police state that is constantly monitoring every expense that you make. This whole notion that in order to get welfare, you have to work was a Tommy Thompson idea that then Bill Clinton more or less nationalized with his omnibus welfare reform package. That was, I mean, it was largely written by Republicans, but it was Bill Clinton who was championing it, shepherding it.

RG: Yeah.

BC: Today, we have a historic opportunity to make welfare what it was meant to be a second chance not a way of life. And even though the bill has serious flaws that are unrelated to welfare reform, I believe we have a duty to seize the opportunity it gives us to end welfare as we know it.

RG: So, when people talk about Democrats going to the center, that’s a euphemism for them distancing themselves from black people and from the Civil Rights era. That’s essentially what they’re talking about. And this was a huge part of that. This was Clinton’s way of saying “Look, that promise that I made on the Rainbow Coalition stage when I called out Sister Souljah, I’m delivering on that right now. I told you I would stick it to them.” He was running for re-election and his advisors told him, you know, you sign welfare reform and you’re basically guaranteed to get re-election. Wendell Primus, who was a top HHS official at the time, resigned in protest over it. He’s now one of Pelosi’s top aides. And you had a couple others in the White House who resigned, who said this is going to increase poverty and increase child poverty, more or less, it has.

JS: I want to talk a bit before we get to the current situation of the Democratic Party about Barack Obama’s impact becoming the not just the president, but the leader for those eight years of the Democratic Party. Obama launched his campaign and I think, he you know, he wanted to give the impression that he was the anti-war candidate, but in reality the speech that he gave in Chicago in October of 2002, which really launched his national political aspirations and campaign.

BO: I don’t oppose war in all circumstances and when I look out over this crowd today, I know there is no shortage of patriots or patriotism. What I do oppose is a dumb war.

JS: I often think of that as kind of a metaphor for how Obama governed. He would telegraph one thing and sort of, there would be this perception people would place onto the canvas of Obama, what they wanted to think he was but in reality, he always if you really took his words at their value, was saying I’m not a leftist. Obama would allow people to think he was this thing but in reality he was a pretty right-wing Democrat.

RG: You already want to believe, you know, that liberals wanted to believe that he was one of them. He must be. He’s a great writer. He went to Harvard. He came out — He was a community organizer. I think that was a huge selling point to a lot of people. He must be a lefty out there in the streets organizing.

BO: So, I would argue that doing work in the community to try to create jobs, to bring people together, to rejuvenate communities that have fallen on hard times, to set up job training programs in areas that have been hard hit when the steel plants closed, but that’s relevant only in understanding where I’m coming from.

RG: Then you just look at it through that prism, then you see him getting attacked by you know, Mark Penn, Hillary Clinton’s adviser, as un-American and it’s easy to start defending him against all of these unfair attacks. And so, then you wind up with this massive, inspired grassroots army of millions of people ready to transform politics. And he could have brought that army with him into Washington with the sky falling, Wall Street completely collapsing, the economy on the brink. People were talking about the end of the Republican party like what’s going to be the new party that takes its place? It was that low of a moment for them and they signaled right away, before he was even sworn in that they were going to oppose him on everything across the board and that was going to be their play. And still, he shut down the grassroots army, basically folded up what was called OFA, Organizing for America, put it onto the DNC and mothballed the thing.

JS: Give a kind of overview in the context of the 2020 election of where the Democratic party is today and what are the dynamics within it?

RG: Obama showed that you could raise an extraordinary amount of money online for a presidential campaign, which was the kind of the promise of the Dean campaign back in ’03. And then Bernie Sanders kind of actualized that and then you see what’s happened in 2020 with the DNC even leaning into it saying everybody needs to have 65,000 small donors to get on the stage. Otherwise, the candidates just say, my average donation was this small. I have this many small donors to show that they have this broad base of support and what that’s done is it’s set up an alternative kind of, funding structure for the rival wing of the party.

Jesse Jackson didn’t really have that. There wasn’t an efficient way for people to say, “Wow, Jesse Jackson. We’re almost 40 primaries in and he’s neck and neck for the nomination. I want to give him $30.” There was mail, but there wasn’t really a way for people to express their support for people in the way there is now where you can just tap your phone every time Bernie Sanders gets attacked and you want to fight back. Alright here, take another of my five dollars. And so, that has really changed the calculation and since it was a weird accident that they started taking big money in the first place, it means it’s not part of the DNA, like the party is not built only to take big money. The party could be taken over by small donors.

JS: But the open hostility toward Bernie Sanders that continues or even is increasing in some quarters of the Democratic Party is real. I mean, there is this just fierce hatred for Bernie Sanders in certain sectors of the Democratic Party. If Sanders does win the Democratic nomination, what happens to all those extremely angry people who seem to think that Sanders is worse than Donald Trump in some ways? What happens then in the Democratic Party?

RG: Right, does somebody like Howard Schultz run just to spoil it for Democrats at that point and get five percent and throw it to Trump? That’s the risk with that. And that’s the threat like, that’s kind of the point.

JS: I don’t think Howard Schultz’s own staff would vote for him. I mean, I’m talking about like are these people even going to vote for Bernie Sanders? Are they going to write in Hillary Clinton?

RG: Well, the good news for Democrats or for Bernie supporters would be that they almost all live in Washington or New York. And so, they don’t live in Wisconsin, Michigan, and Pennsylvania. Those are the key states that are going to swing the presidential election. And so, the question of can Bernie win those three key states is what decides whether or not he can beat Trump. And if you talk to Republicans, interestingly, Republicans who know those states well, they believe that Bernie is a major threat in a state like Pennsylvania, Michigan, Wisconsin because not only does he galvanized the Democratic base support, but he does appeal to the kind of angry independents who just want to cast a screw you vote. They can just as happily cast it for Bernie Sanders as they can for Trump. And so, Republicans ironically, are more convinced of Sanders’ electability in those states than Democrats are.

JS: Ryan Grim, congrats again on the book and thanks for being with us.

RG: Always a pleasure.

JS: Ryan Grim is The Intercept’s Washington DC bureau chief. His new book, from Strong Arm Press, is called “We’ve Got People: From Jesse Jackson to Alexandria Ocasio-Cortez, the End of Big Money and the Rise of a Movement.”

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JS: And that does it for this week’s show. You can follow us on Twitter. Our handle is @intercepted. If you like what we do, you can support our show by going to to become a sustaining member of this program.

Intercepted is a production of First Look Media and The Intercept. Our lead producer is Jack D’Isidoro. Our producer is Laura Flynn. Elise Swain is our associate producer and graphic designer. Our executive producer is Leital Molad. Betsy Reed is editor in chief of The Intercept. Rick Kwan mixed the show. Transcription for this program is done by Nuria Marquez Martinez. Our music, as always, was composed by DJ Spooky. Until next week, I’m Jeremy Scahill.

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