Nothing has changed in the language of the criminal law. For a century, the Espionage Act has potentially applied to journalists, and for sound constitutional and policy reasons prosecutors declined to bring such cases. Much of responsible law enforcement rests on such prosecutorial discretion. The question now is whether a Justice Department led by a president who calls the press the “enemy of the people” will dramatically change how it exercises that discretion.
But despite the president’s bluster, the Assange case is probably a one-off. It involves not a routine leak but one of the largest disclosures of classified information in U.S. history. When announcing the indictment, Justice Department officials took great pains to note the department’s respect for the role of the media and that Assange was not being charged for the mere receipt and publication of classified information. It’s hard to imagine even this administration willingly igniting the constitutional conflagration that would result from expanding this theory of prosecution beyond the unique facts of the Assange case.
The historic tension between a government trying to keep some secrets and a free press seeking to hold government accountable generally has served this country well.