The Implications of Charging Assange for Conspiracy to Leak [Updated]

Charlie Savage reports in the New York Times that DOJ is considering charging Julian Assange as a conspirator to Bradley Manning’s undoubtedly illegal leak of classified information:

Justice Department officials are trying to find out whether Mr. Assange encouraged or even helped the analyst, Pfc. Bradley Manning, to extract classified military and State Department files from a government computer system. If he did so, they believe they could charge him as a conspirator in the leak, not just as a passive recipient of the documents who then published them.

I have no idea how feasible this is.  But the government’s rationale for pursuing this route is noteworthy:

By bringing a case against Mr. Assange as a conspirator to Private Manning’s leak, the government would not have to confront awkward questions about why it is not also prosecuting traditional news organizations or investigative journalists who also disclose information the government says should be kept secret — including The Times, which also published some documents originally obtained by WikiLeaks.

I’m not so sure this path avoids awkward questions.  Charging Assange as a conspirator to Manning’s leak might distinguish the Times in the wikileaks case.  But it would not distinguish the Times and scores of other media outlets in the many cases in which reporters successfully solicit and arrange to receive classified information and documents directly from government officials.  Prosecution of Assange on this theory would therefore raise awkward questions about why DOJ does not bring charges against the American media for soliciting classified information on a regular basis.  It would be a fateful step for traditional press freedoms in the United States.  Indeed, unless I am missing something, it seems that a successful prosecution of Assange for conspiracy to leak would have broader and more corrosive implications for press freedoms than a successful prosecution under the ambiguity-riddled Espionage Act.  In any event, I do not see how going the "conspiracy to leak" route is a press-protecting move. Update:

• The government might try to draw a line between (a) merely receiving classified information or encouraging the leaker to disclose the classified information, and (b) actively helping or aiding the leaker to disclose the classified information, perhaps with technical means.  But even if this line could be drawn sharply within the law, I assume that many journalists who publish classified information would fall under (b).  And if the line could not be drawn sharply, prosecuting for (b) would have a chilling effect on (a) in any event.  These might or might not be good consequences overall, but one cannot say that they are consequences without profound implications for journalists who cover national security.

• Josh Gerstein makes a similar point to my post this morning in Politico.