Law & the Courts

Why Isn’t Assange Charged with ‘Collusion with Russia’?

Julian Assange on the balcony of the Ecuadorian embassy in London, May 19, 2017 (Peter Nicholls/Reuters)
The government would have a chance to prove in court that Russia was WikiLeaks’ source.

Prior to the publication of the stolen Democratic-party emails and internal documents, Julian Assange and WikiLeaks exhorted Russian government hackers to send them “new material.”

That is what we are told by Special Counsel Robert Mueller’s indictment of Russian intelligence officers. (I won’t offend anyone by calling them “spies” — after all, they were just doing electronic surveillance authorized by their government, right?) Assange wanted the Russians to rest assured that giving “new material” to WikiLeaks (identified as “Organization 1” in the indictment) would “have a much higher impact than what you are doing” — i.e., hacking and then putting the information out through other channels.

But time was of the essence. It was early 2016. If Hillary Clinton was not stopped right there and then, WikiLeaks warned, proceedings at the imminent Democratic national convention would “solidify bernie supporters behind her.” Of course, “bernie” is Bernie Sanders, the competitor who could still get the nomination. But if Assange and the Russians couldn’t raise Bernie’s prospects, WikiLeaks explained, Mrs. Clinton would be a White House shoo-in: “We think trump has only a 25% chance of winning against hillary . . . so conflict between bernie and hillary is interesting.”

In a nutshell: Knowing that Russia had the capacity to hack the DNC and perhaps Clinton herself, WikiLeaks urged it to come up with new material and vowed to help bring it maximum public attention. By necessity, this desire to hurt Clinton would inure to Sanders’s benefit. And sure enough, WikiLeaks eventually published tens of thousands of the Democratic emails hacked by Russian intelligence.

So . . . I have a few questions.

 

WikiLeaks, Moscow, and Bernie Sanders

First, why was there no Sanders-Russia probe? Why, when President Obama directed John Brennan, his hyper-political CIA director, to rush out a report on Russia’s influence operations, did we not hear about the WikiLeaks-Russia objective of helping Sanders win the Democratic nomination? Brennan & Co. couldn’t tell us enough about our intelligence-agency mind readers’ confidence that Putin was rootin’ for Trump. Why nothing about the conspirators’ Feelin’ the Bern?

Don’t get me wrong: I don’t think there is any basis for a criminal investigation of Senator Sanders. But there appears to have been no criminal predicate for a “collusion” investigation of Donald Trump, either — not a shred of public evidence that he conspired in the Putin regime’s hacking, other than that presented in the Clinton-campaign-sponsored Steele dossier (if you can call that “evidence” — though even Christopher Steele admits it’s not). Yet, Trump was subjected to an investigation for more than two years — on the gossamer-light theory that Trump stood to benefit from Moscow’s perfidy.

Yes, of course, this cui bono claim was amplified by what were said to be Trump’s intriguing, if noncriminal, ties to Russia. To my knowledge, however, the mythical pee tape of Steele lore has never been located; it is unlikely, then, that there are any Trump photos that compare, intrigue-wise, to a shirtless Bernie boozing it up in the Soviet Union. Surely that should have been worth a FISA warrant or four.

A more serious question: Why hasn’t Assange been indicted for criminal collusion with the Kremlin — the same hacking conspiracy for which Mueller indicted the Russian operatives with whom Mueller says Assange collaborated? The same conspiracy for which the president of the United States, though not guilty, was under the FBI’s microscope for nearly three years?

 

The Assange Indictment: Weak and Potentially Time-Barred

The most striking thing about the Assange indictment that the Justice Department did file is how thin it is, and how tenuous. Leaping years backwards, ignoring “collusion with Russia,” prosecutors allege a single cyber-theft count: a conspiracy between Assange and then–Bradley (now Chelsea) Manning to steal U.S. defense secrets. This lone charge is punishable by as little as no jail time and a maximum sentence of just five years’ imprisonment (considerably less than the seven years Assange spent holed up in Ecuador’s London embassy to avoid prosecution).

This is very peculiar. Manning, Assange’s co-conspirator, has already been convicted of multiple felony violations of the espionage act — serious crimes that the Assange indictment says WikiLeaks helped Manning commit . . . but which the Justice Department has not charged against Assange.

Why? Probably because espionage charges are time-barred. Which brings us to the possibility — perhaps even the likelihood — that Assange will never see the inside of an American courtroom.

As I pointed out on Thursday, the 2010 Assange-Manning cyber-theft conspiracy charged by prosecutors is outside the standard five-year statute of limitations for federal crimes: The limitations period was already exhausted when the indictment was filed in 2018. To breathe life into the case, the Justice Department will have to convince both British and American judges that this comparatively minor conspiracy charge is actually a “federal crime of terrorism,” triggering a three-year statute-of-limitations extension.

For some reason, the extension statute — Section 2332b(g)(5)(B) — makes the extra three years applicable to cyber-theft offenses under Section 1030 of the penal code, but not espionage-act offenses under Section 793. I am skeptical, though, that the Justice Department’s cyber-theft charge qualifies for the extension. Prosecutors haven’t charged a substantive cyber-theft violation under Section 1030; they have charged a conspiracy (under Section 371) to commit the Section 1030 offense. That is not the same thing. Typically, if Congress intends that its mention of a crime should be understood to include a conspiracy to commit that crime, it says so. It did not say so in the extension statute.

Why put all the prosecutorial eggs in such a rickety basket?

 

Protecting Mueller’s Russian-Hacking Indictment

England is a close ally, but getting its courts to extradite people for U.S. criminal proceedings is no lay-up. It is a laborious process, and the outcome, even in strong cases, is uncertain. The Justice Department knows this, yet in its indictment it elected not to charge the Russia conspiracy — a 2016 offense that has no statute-of-limitations problem. Why? If you want the Brits to transfer a defendant, you need to make a compelling showing. Why leave obvious, serious charges on the cutting-room floor? Mueller brought a dozen felony charges against the Russian operatives with whom, we’ve been told for over two years, Assange conspired. So why isn’t Assange charged with at least some of these felonies?

Some argue that the Justice Department is nervous that, as a pseudo-journalist, Assange may have First Amendment protection from such charges. But then why charge the Manning conspiracy? The theory of Assange’s guilt is the same in both the Russian-collusion and Manning-espionage situations: The WikiLeaks chief was not merely a journalist publicizing sensitive information; he was aiding, abetting, counseling, inducing, and procuring the theft of the sensitive information (to borrow the terms of the federal aiding and abetting statute). The Justice Department plainly believes that complicity in the theft shreds any claim to freedom of the press; there is no First Amendment right to steal information.

If this is the Justice Department’s position, then why not charge Assange with the 2016 “collusion” conspiracy, too? If I were a cynic (perish the thought!), I’d suspect that the government does not want Special Counsel Mueller’s Russian-hacking indictment to be challenged.

As I have explained previously, I accept the intelligence agencies’ conclusion, echoed by Mueller, that Russia was behind the hacking of Democratic email accounts. Nevertheless, there is a big difference between (a) accepting an intelligence conclusion based on probabilities, and (b) proving a key fact beyond a reasonable doubt in a criminal case.

The intelligence assessment here may be sound, but the legal case Mueller would have to prove to a jury has problems. To state the most obvious: The Justice Department and FBI did not perform elementary investigative steps, such as taking possession of, and performing their own forensic analysis on, the servers that were hacked. Instead, they relied on CrowdStrike, a contractor of the DNC, which has a strong motive to blame Russia.

Mueller’s team knew that no Russian defendant would ever actually be tried in a U.S. court on the hacking allegations. The indictment was more like a press release than a charging instrument. It was meant to be the last word on hacking: An authoritative version of events pronounced by a respected U.S. prosecutor that would never be challenged by skilled defense lawyers. The point was to put to rest the nettlesome “How do we really know Russia did it?” question raised by some former intelligence agents and hardcore Trump supporters.

But now . . . here comes Assange. He has always insisted that Russia was not WikiLeaks’ source. I don’t believe him. I see him as a witting, anti-American tool of Moscow. But, to my chagrin, some in Trump’s base — not all, but some — have made Assange their strange bedfellow, just as many libertarians and leftists embraced him when he was exposing U.S. national-security programs, intelligence methods, defense strategies, and foreign-relations information. These Trump supporters have convinced themselves that raising doubt about Russia’s culpability exonerates the president — even though the special counsel has already cleared Trump, regardless of what Russia (and Assange) were up to.

Consequently, if Assange were charged with the Russian-hacking conspiracy that Mueller has alleged, and if he were ever brought to the U.S. to face trial, he would maintain that he did not get the Democratic emails from Russian intelligence. Remember, a defendant does not have to prove anything: It would not be Assange’s burden to establish Russia’s innocence; the Justice Department would have to prove Russia’s culpability.

Assange’s fans would give lots of sunshine to his effort to exculpate Moscow. Indeed, even without Assange mounting a challenge to Mueller’s Russian-hacking indictment, some Trump supporters have tried to cast doubt on Russia’s guilt (see, e.g., here and here). And a group of dissenting intelligence-community veterans will continue arguing that CrowdStrike’s analysis is flawed.

To sum up: If the Justice Department had indicted Assange for collusion, Mueller’s Russian-hacking indictment would no longer stand unchallenged. Assange would deny that Russia is behind the hacking, and prosecutors would have to try to prove it, using hard, admissible courtroom proof — not top-secret sources who cannot be called as witnesses without blowing their cover, or other information that might be reliable enough to support an intelligence finding but would be inadmissible under courtroom due-process standards. If the prosecutors were unable to establish Russia’s guilt to a jury’s satisfaction, it would be a tremendous propaganda victory for the Kremlin, even if — as I believe — Russia is actually guilty.

This is part of why it was a mistake to indict the Russian intelligence officers. An indictment is never an authoritative statement; it is just an allegation, it proves nothing. We didn’t need it to know what happened here. The indictment says nothing significant that we were not already told by the intelligence agencies’ assessment released to the public in January 2017.

Adversary countries are a security challenge, not a law-enforcement problem. Because they don’t have to surrender their officials for an American trial, an indictment is a pointless gesture. But now, having with great fanfare filed charges against Russia that implicate Assange, the government shrinks from lodging these same charges against Assange — who, unlike the indicted Russian officials, may be in a position to put the government to its burden of proof. This just makes Mueller’s indictment of Russians look more like a publicity stunt than a serious allegation. If the government is afraid to try the allegations against Russia in court, people will naturally suspect the allegations are hype.

Meanwhile, let us remember: Despite a dearth of evidence that he was complicit in Moscow’s hacking, President Trump was forced by the Justice Department and the FBI, urged on by congressional Democrats, to endure a two-year investigation and to govern under a cloud of suspicion that he was an agent of the Kremlin. Now we have Assange, as to whom there is indisputable evidence of complicity in the hacking conspiracy, but the Justice Department declines to charge him with it — instead, positing the dubious Manning conspiracy that may very well be time-barred.

What is going on here?

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