The U.S. media is in the crosshairs of the new Assange indictment

Jack Goldsmith writes:

I have written a lot on how hard it is to distinguish WikiLeaks from the New York Times when it comes to procuring and publishing classified information. One implication of the comparison is that any successful prosecution of WikiLeaks founder Julian Assange would have adverse implications for mainstream U.S. news publications efforts to solicit, receive and publish classified information. The May 23 indictment of Assange makes clear that these concerns are real. As Susan Hennessey said, “[I]t will be very difficult to craft an Espionage Act case against him that won’t adversely impact true journalists.” I don’t think this is an accident. I think the government’s indictment has the U.S. news media squarely in its sights.

The first sentence of the indictment reads:

To obtain information to release on the WikiLeaks website, ASSANGE encouraged sources to (i) circumvent legal safeguards on information; (ii) provide that protected information to WikiLeaks for public dissemination; and (iii) continue the pattern of illegally procuring and providing protected information to WikiLeaks for distribution to the public.

This is exactly what national security reporters and their news publications often ask government officials or contractors to do. Anytime a reporter asks to receive information knowing it is classified, that person encourages sources to circumvent legal safeguards on information. The news organizations’ encouragement is underscored by the mechanisms they provide for sources to convey information securely and anonymously. [Continue reading…]

Latest charges against Assange are an assault on press freedom

Brian Barrett writes:

On Thursday, the Department of Justice unsealed new charges against WikiLeaks founder Julian Assange. Unlike the previous indictment—which focused narrowly on an apparent offer to help crack a password—the 17 superseding counts focus instead on alleged violations of the Espionage Act. In doing so, the DOJ has aimed a battering ram at the freedom of the press, whether you think Assange is a journalist or not.

The indictment, which you can read in full below, alleges that Assange published classified information over a dozen times, an act expressly forbidden by the Espionage Act, which Congress first passed in 1917. But the Espionage Act has only rarely, and never successfully, been applied to the recipient of a leak. “For the first time in the history of our country, the government has brought criminal charges against a publisher for the publication of truthful information,” says Ben Wizner, director of the American Civil Liberties Union’s Speech, Privacy, and Technology Project. “This is an extraordinary escalation of the Trump administration’s attacks on journalism, and a direct assault on the First Amendment.”

The Trump administration’s position that the Espionage Act should apply here would have immediate and broadly-felt repercussions far beyond WikiLeaks. Because however you personally care to classify Assange, the acts at the heart of this latest indictment mirror those made by journalists every day. They’re the reason US citizens know about PRISM, and the Pentagon Papers, and any number of other revelations around abuses of power and governmental impropriety. [Continue reading…]

Amend the Espionage Act: Public interest defenses must be allowed

In an editorial, the Pittsburgh Post-Gazette says:

It has been almost 102 years since the Espionage Act was signed into law by Woodrow Wilson.

Initially conceived as a means by which to “punish acts of interference with the foreign relations,” the act has since become a tool of suppression, used to punish whistleblowers who expose governmental wrongdoing and criminality. It is time that the law be amended to accommodate those who share information vital to the public interest.

Daniel Everette Hale, a 31-year-old former intelligence analyst, become the latest target of the weaponized Espionage Act with his recent arrest. Mr. Hale is accused of leaking classified documents between 2013 and 2015 regarding the Obama administration’s drone program.

The leaked information revealed details about the secret legal system used by the Obama administration to create lists of people to kill, including American citizens who had not been formally charged with crimes. It also revealed that the drone program is dangerously inaccurate, killing the wrong target as often as 90% of the time.

This information is clearly of substantive value to the public. The American people have a right to know who its government is killing and how it makes such decisions. Transparency ensures due process and ethical decision-making.

But Mr. Hale has been charged under the Espionage Act and, as a result, will be denied the right to make a “public interest defense.”

Sadly, Mr. Hale’s situation is not unique. He is the fourth individual to be charged by the Trump administration under the Espionage Act for leaking classified information to journalists. Terry Albury (FBI) and Reality Winner (NSA) are already serving prison sentences for their actions, while Joshua Schulte (CIA) has pleaded not guilty and is awaiting trial. Only the Obama administration prosecuted more whistleblowers under the Espionage Act — a total of eight people. [Continue reading…]

Nevada poised to become 15th state to ditch Electoral College

NPR reports:

President Hillary Clinton?

That would have been the result of the 2016 presidential election — if the National Popular Vote Interstate Compact were in effect.

With a state Senate vote Tuesday, Nevada is close to becoming the latest state to sidestep the Electoral College when it comes to electing presidents.

According to the National Popular Vote organization, which oversees efforts to persuade states to join the compact, 14 states and the District of Columbia have agreed to pledge their 189 electors to the winner of the national popular vote — regardless of which candidate won the state. Nevada, with its six electoral votes, would bring the total to 195. Once 270 electors are pledged, the compact would kick in.

The effort is part of a national movement to neuter the Electoral College and give more weight to the popular vote. Democrats in particular have been stung by the Electoral College, which effectively gives disproportional voting power to smaller, rural states that tend to vote Republican. In addition to President Trump, George W. Bush also won the White House without winning the popular vote. [Continue reading…]

Federal judge says Deutsche Bank, Capital One can give Trump financial records to Congress

CNBC reports:

A federal judge in New York City on Wednesday said Deutsche Bank and Capitol One can turn over financial documents related to President Donald Trump and his businesses in response to subpoenas from House Democrats.

Judge Edgardo Ramos’s ruling came after a hearing at which lawyers for Trump, his three older children, Donald Jr. Eric and Ivanka, and the Trump Organization argued that the subpoenas to the two banks should be quashed.

Ramos, an appointee of President Barack Obama, said that the Trump clan’s arguments “are not sufficiently serious as it relates to Supreme Court precedent” dealing with the question of turning over documents to Congress.

The judge also disagreed with the argument by the Trump legal team that the demand for the documents lacks a legitimate legislative purpose. Ramos said there is such a purpose. [Continue reading…]

New York passes bill giving Congress a way to get Trump’s state tax returns

The New York Times reports:

Even before he was elected president, Donald J. Trump had steadfastly refused to release his federal tax returns, bucking years of tradition among presidential candidates. His intransigence deepened once he entered the White House, defying a congressional subpoena for the tax records.

Now, however, a nine-page workaround by the New York State Legislature may serve as a way for Congress to get its hands on a trove of Mr. Trump’s tax information.

On Wednesday, the Democratic-led Legislature passed a bill that would permit New York State tax officials to hand over Mr. Trump’s state returns to any one of three congressional committees. Such returns — filed in New York, the president’s home state and business headquarters — would likely contain much of the same information as the contested federal returns.

The bill is expected to be signed by Gov. Andrew M. Cuomo, a third-term Democrat and regular critic of Mr. Trump’s policies and behavior. [Continue reading…]

Trump’s unofficial judicial adviser runs ‘dark money’ operation using nonprofit system to influence judicial appointments

The Washington Post reports:

Leonard Leo stepped onto the stage in a darkened Florida ballroom, looked out at a gathering of some of the nation’s most powerful conservative activists and told them they were on the cusp of fulfilling a long-sought dream.

For two decades, Leo has been on a mission to turn back the clock to a time before the U.S. Supreme Court routinely expanded the government’s authority and endorsed new rights such as abortion and same-sex marriage. Now, as President Trump’s unofficial judicial adviser, he told the audience at the closed-door event in February that they had to mobilize in “very unprecedented ways” to help finish the job.

“We’re going to have to understand that judicial confirmations these days are more like political campaigns,” Leo told the members of the Council for National Policy, according to a recording of the speech obtained by The Washington Post. “We’re going to have to be smart as a movement.”

“No one in this room has probably experienced the kind of transformation that I think we are beginning to see,” Leo said.

At a time when Trump and Senate Majority Leader Mitch McConnell are rapidly reshaping federal courts by installing conservative judges and Supreme Court justices, few people outside government have more influence over judicial appointments now than Leo. [Continue reading…]

Federal judge upholds congressional subpoena for Trump financial records

Politico reports:

A federal judge on Monday upheld a congressional subpoena seeking President Donald Trump’s financial records from an accounting firm, arguing that Congress is well within its rights to investigate potential illegal behavior by a president — even without launching a formal impeachment inquiry.

U.S. District Court Judge Amit Mehta’s ruling delivers a striking blow to the president’s efforts to resist Democratic investigations, and is certain to give Democrats further legal basis to investigate Trump, his finances, and his presidential campaign.

In addition to upholding the House Oversight and Reform Committee’s subpoena to accounting firm Mazars USA for eight years of Trump’s financial records, Mehta took the extra step of denying the president’s request for a stay pending appeal.

Jay Sekulow, one of the president’s personal attorneys, said: “We will be filing a timely notice of appeal to the D.C. Circuit Court of Appeals.”

Speaking with reporters at the White House on Monday, Trump called Mehta’s ruling “ridiculous” and “totally wrong.” He also noted that Mehta was appointed by President Barack Obama.

Mehta’s decision is a sweeping repudiation of Trump’s claim to be largely immune from congressional scrutiny, particularly in matters of potential legal violations. Mehta’s opinion emphasizes that lawmakers have the authority to investigate Trump’s conduct from both before and after he took office.

The ruling represents the first time the federal judiciary has weighed in on the ongoing oversight battle between Trump and House Democrats. Mehta’s ruling is likely to provide a blueprint for other judges who are set to make their own rulings on Trump’s vow to defy all congressional subpoenas. [Continue reading…]

Mueller and House Democrats at impasse over how much of his testimony would be public

The Washington Post reports:

Robert S. Mueller III and House Democrats have been unable to reach an agreement on how much of the special counsel’s expected congressional testimony would be public, and how much would take place in private, according to people familiar with the matter.

The special counsel’s office, along with senior Justice Department officials, has been quietly negotiating with the House Judiciary Committee, whose chairman, Rep. Jerrold Nadler (D-N.Y.), has been eager to have Mueller testify as soon as possible.

Who is driving the dispute is a source of debate. Two people familiar with the matter said the Justice Department is deferring to Mueller, who would like for any discussions beyond the public contents of his report to be conducted in private. But another person said it is primarily the department, rather than Mueller himself, resisting a nationally televised hearing. [Continue reading…]

Trump’s position on the Mueller report is legally ridiculous — and dangerous

Ryan Goodman writes:

You may have a hard time believing a key argument the Trump administration is using to rebuff efforts by Congress to obtain information legislators need to do their job. The administration has claimed — for example, in a letter from the White House counsel to the House Judiciary Committee in response to congressional subpoenas of the full Mueller report — that Congress must demonstrate to the administration’s satisfaction that the information would serve a “legitimate legislative purpose.” In effect, Congress must show that its interests fall within the power under Article I of the Constitution to pass new legislation.

Faced with a similar argument last week in a hearing for a case involving Congress’s subpoena of Mr. Trump’s financial records, a district court judge, Amit Mehta, was highly skeptical.

But especially with the Mueller report, the administration’s claim isn’t just legally ridiculous. It actually puts our country at grave risk.

There’s a lot wrong with the administration’s position, including that oversight and investigations are a fundamental part of Congress’s Article I responsibilities. The Supreme Court has long recognized as much. Showing a specific legislative purpose is not required. That’s what Judge Mehta told Mr. Trump’s lawyers.

In fact, Congress has many important legislative purposes that would be served by access to the full Mueller report and underlying documents. The administration’s attempt to deny or slow roll the release of this information is hampering Congress’s ability to draft new legislation to protect our democracy from foreign adversaries. [Continue reading…]