• Assange Extradition Raises Questions

    June 12, 2024 // 7 Comments »

    A British court ruled Wikileaks founder Julian Assange can appeal his extradition to the U.S. How Assange’s case plays out may change both the way Espionage Act cases are defended and the deeper relationship among the Act, the 1A, and a free press.

    The U.S. charged Assange multiple times under the 1917 Espionage Act for an alleged conspiracy to take possession of and publish national defense information. Had the British court ruled in the U.S.’ favor, Assange would have exhausted all legal avenues in the UK. Instead, he can now fight the extradition to the U.S. from the relative safety of Britain.

    The allegations stem from 2010 when WikiLeaks released half a million classified documents focused on Iraq and Afghanistan that were leaked to the site by Chelsea Manning, an Army intel analyst. Included in the leak was video from Iraq showing American helicopters gunning down Iraqi civilians, later dramatized by the film Incident in New Baghdad. Assange’s legal team argues the case is a politically motivated form of state retaliation for embarrassing the United States.

    Following the charges by the U.S. government, Assange was granted asylum for seven years in the Ecuadorian embassy in London. Made to leave, Assange was then arrested by British authorities for skipping bail, and has spent the last five years in a dank British prison fighting extradition to the United States, His spouse calls it “punishment by process.”

    In February, Assange’s lawyers submitted grounds for a possible appeal. The High Court in response directed the U.S. government provide assurances: a) that Assange would not face the death penalty; b) that he would be treated no differently than a U.S. citizen; and c) that he would be protected under the First Amendment. The U.S. government provided such assurances in a letter. The British court was unconvinced, and will allow Assange to appeal the extradition request.

    Of the three conditions, the key issue is whether or not Julian Assange can raise an effective First Amendment defense against the Espionage Act. Could Assange claim, for example, that his right to publish the leaked materials was protected as a publisher and journalist under the 1A in the public interest?

    The Justice Department previously told a British court the First Amendment doesn’t apply to anyone “in relation to publication of illegally obtained national defense information giving the names of innocent sources to their grave and imminent risk of harm.” Use of a 1A public interest defense by Chelsea Manning was blocked and her attempts to speak to the American people directly were stymied by seeing her entire trial classified.

    “The short answer is that being able to ‘raise’ a defense is different than being able to ‘rely’ on one,” said former Assange attorney Jesselyn Radack, who heads the Whistleblower and Source Protection Program (WHISPeR, at Expose Facts, speaking with TAC. “In Espionage Act cases, the government has literally done motions to preclude the use of the words ‘First Amendment.’ I can easily see that happening here, as well as motions to preclude 1A related words like ‘journalist’ and ‘publisher.’ Assange can raise the First Amendment. He can raise a herd of goats if he wants. The better question is whether Assange would be allowed a 1A defense.”

    Under such circumstances any British court willing to accept a USG assurance Assange would have First Amendment rights in any practical sense is being played as a fool.

    But the Assange case begs a bigger question the British court might ask if it was concerned about fairness to Assange: why is it only him, and not outlets like the New York Times, which also published leaked material, on trial? Why not also the Guardian, the Washington Post, NBC News?

     

    (JUDE: This next part draws from an earlier piece)

     

    Under the Espionage Act, Assange would be prohibited from offering a 1A-based public interest defense; his unauthorized possession of classified materials alone would ensure a guilty verdict, in that the Act does not distinguish between possession for journalistic purposes, and possession say with the intent to hand over secrets to Russian intelligence. Assange, as with the others prosecuted under the Espionage Act, would be found guilty and simultaneously be denied the chance to defend himself based on a free speech defense.

    Assange poses a dilemma for the United States in its ongoing muscle-tussle in balancing the power of the government to protect classified information, the guarantee of a free press in the First Amendment, and the broader concept of the need for an informed populace to challenge their government and make this democracy work in practice.

    At what point does the need for the people to know something outweigh any laws allowing the government to keep it from view? If punishment appears necessary, should the leaker be punished, should the journalist who publishes be punished, or should neither, or both? The questions become acute in the digital age, where physical documents no longer need to be copied one-by-one, and where publishing is far removed from the traditions, obstacles, safeguards, backdoor pressures, and restraint of traditional journalism.

    A complex history precedes Assange. In 1971 Daniel Ellsberg leaked the classified Pentagon Papers to the New York Times. The risks to the journalists were huge — no one had ever published such classified documents before, and the senior staff at the Times feared they would go to jail under the Espionage Act.

    Despite such pessimism, the Supreme Court handed down a landmark victory for the First Amendment in New York Times Company v. United States. The Times won the Pulitzer Prize. Ellsberg however was charged under the Espionage Act. His case was ultimately dismissed for gross governmental misconduct and illegal evidence gathering without the underlying issues being addressed, most prominently Ellsberg’s defense he was morally compelled to leak the classified information to the Times.

    But looking at the Times case through the lens of Wikileaks, University of Texas law professor Steve Vladeck is careful to point out “Although the First Amendment separately protects the freedom of speech and the freedom of the press… the Supreme Court has never suggested that the First Amendment might protect a right to disclose national security information. Yes, the Pentagon Papers case rejected a government effort to enjoin publication, but several of the Justices in their separate opinions specifically suggested that the government could prosecute the New York Times and the Washington Post after publication, under the Espionage Act.”

    In its simplest form, the Supreme Court left the door open for the government to prosecute both the leaker who takes the documents (by dismissing the case without setting a precedent) and the journalists who publish them (by focusing narrowly on prohibiting the government from exercising prior restraint.)

    What has happened since has been little more than a delicate dance around the 500 pound gorilla loose in the halls of democracy. The government aggressively prosecuted whistleblowers under the Espionage Act while choosing not to prosecute journalists for publishing what the whistleblowers hand over to them. Assange’s case stands as an outlier.

    Did Assange commit journalism? He wrote nothing alongside documents on Wikileaks, did no curating or culling, and redacted little information. Publishing in his case consisted simply uploading what had been supplied to him. It would be easy for the government to frame a case against Assange that set precedent he is not entitled to any First Amendment protections — clicking Upload isn’t publishing and Assange isn’t a journalist they could say. The simplest interpretation of the Espionage Act, that Assange willfully transmitted information relating to the national defense without authorization, would then apply. Guilty, the same as almost all of the leakers and other canaries in the D.C. coal mine.

    Yet like the Times, Wikileaks sidestepped the restraints of traditional journalism to bring with immediacy the raw material of history to the people. That is the root of an informed public, through a set of tools never before available until the Internet and Julian Assange created them.

    The British court needs to carefully weigh any faux U.S. promises of 1A rights for Assange, and ask itself instead: is he being singled out for punishment, criminalizing journalism? President Joe Biden is already considering an Australian government request to drop Julian Assange’s charges. The British court should stay the extradition and ultimately release Assange for doing nothing but what the New York Times and others have done before him.

     

     

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    Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.

    Posted in Democracy, Post-Constitution America

    I’m Disgusted with the Trump Indictment

    April 20, 2023 // 1 Comment »

    The sheer pleasure ordinary Democrats, never mind MSM personnel, got from seeing Donald Trump in court was disgusting. The “Ah, jeez, why not?” reaction when it was announced he would not be paraded as a captured curiosity, a circus freak, through a perp walk. The t-shirts that wouldn’t be made out of his mug shot, all the disappointment leavened with the glee that years of investigations finally yielded Trump in court facing criminal charges, the fruition of #TheResistance. To hear MSNBC, you’d think we were days away from the Orange Man being thrown into a van with no windows for his last ride upstate, the Orange tan and orange jumpsuit, with Orange is the New Black jokes echoing behind him, the last things he hears before being violated in the prison showers while multitudes cheer.

    I’d seen all this before, in post-military dictatorship Korea where prosecuting one’s political enemies is a popular blood sport. Former President Roh Moo-hyun faced corruption allegations after leaving office in 2008, but he died by suicide before he could face trial. Former President Park Geun-hye was impeached and removed from office in 2017, and she was subsequently sentenced to 25 years in prison on charges of bribery and abuse of power. Former Presidents Kim Dae-jung and Kim Young-sam were investigated for corruption after leaving office. Overall, whether a former South Korean president goes to jail after their term depends on various factors, occasionally such as the evidence against them, and more significantly, the political climate surrounding them. That’s no rule of law, it is revenge. That’s the new America you’re cheering for?

    And yet for all the schadenfreude turned up to 11, we’re left staring blankly at the TV and asking: is this all there is? After eight years of intense judicial and media scrutiny, after two impeachments, the January 6 coven of elders committee, Russiagate and even after the state of New York and the House finally did get his tax documents, this is it? The Teflon Don is going down over… falsification of business records? Never mind the 34 counts, that’s just stacking, an old DA trick to turn one “crime” into many and make things look more dramatic. It just seem impossible that after all this there is no debt to Putin, no tax scam, no KGB handler, just a bookkeeping error. And spare us the “Al Capone went to jail over tax returns.” Capone was a known mobster, a murderer, a man who left a long string of broken bodies alongside his wholly criminal business (and he only served eight years.) Trump may have committed a bookkeeping error. He’ll pay a fine at worst.

    When you blow away the smoke, Trump is charged with only one minor crime. That stems from the allegation that money Trump paid to his lawyer Michael Cohen (continuing the call him a “fixer” just prolongs the awful Godfather references and is sooooo 2021) to in turn legally buy silence from Stormy Daniels, and for Karen McDougal’s and other stories. Trump supposedly purposely mislabeled this legally spent money as “legal fees.” The indictment instead claims it a violation of business records law because the primary purpose was to influence an election. The supposition by the DA that that was true allowed him to upgrade a misdemeanor, false business records, into multiple felony accusations. Backing all this up is the word of disbarred felon Michael Cohen, and former National Inquirer honcho David Pecker (you just can’t make this stuff up, folks) both of whom are going to swear it is all true. That Pecker supposedly was granted immunity to testify and Cohen himself has multiple law suits and a huge chip on his shoulder pending against Trump has nothing to do with nuthin’.

    The problem is DA Alvin Bragg (who actually ran for his office on the promise of prosecuting Trump for… something… and is now paying off his promise to his backers) has to win the case, and that is going to be as legally tough as the case itself is legally soft.

    In short, the DA has to prove a crime not even charged (the unspecified campaign finance laws, or maybe something to do with taxes, the so-called “core crime”), show a misdemeanor for everyone else is actually a felony if you’re Trump, demonstrate Trump’s criminal state of mind when this all happened (intent to defraud… who? The Trump Organization?) and do all that based primarily on the testimony of Michael Cohen and a pseudo-journalist named Pecker. Otherwise, Trump is acquitted. And while the news is chock full of articles on the threat to our democracy if Trump is found guilty, no one has been saying much about how he will be empowered if he wins. It is said if you go after the king, you should not miss.
    There is nothing in this case which will stop Trump from running for president, even if somehow found guilty or even serving time. His affair with Stormy, which may be offensive to some voters, has sadly been part of the public conversation around Trump for years. If the standards being applied in New York hold, then while this is the first indictment of a former president it will not be the last. Every local prosecutor in the country will now feel that he has a green light to criminally investigate and prosecute presidents after they leave office (remember Jim Garrison and the JFK assassination.) Perhaps over the Hunter Biden case?
    Could things get to the point where the “rule of law” misinterpreted as a “rule of revenge” means a Republican candidate will need to stay out of blue states to avoid prosecution and vice-versa for Dems? Trump went to New York and surrendered himself voluntarily; imagine if he had stayed in Florida and fought any extradition attempt to force him to Manhattan. Democrats salivating over the charges against Trump will feel differently when a prominent Dem ends up on the receiving end of a similar effort by any of the thousands of prosecutors elected to local office, eager to make their bones by taking down a president of the other party. Now imagine an ageing Joe Biden a virtual prisoner of a Democratic safehouse in Delaware.
    It is easy to brush this off as exaggeration, but Trump’s opponents react to his provocations and grandstanding by escalating the erosion of legal norms (see the Mueller investigation, and the impeachments.) Ask Mitt Romney, who said “The prosecutor’s overreach sets a dangerous precedent for criminalizing political opponents and damages the public’s faith in our justice system.” And don’t forget Alvin Bragg’s predecessor had almost a year to bring this case after Trump left office, but did not do so, and the Department of Justice also declined. Historians will call this all the Bragg Rule.

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    Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.

    Posted in Democracy, Post-Constitution America

    Third World Politics: Details of the Trump Indictment

    April 8, 2023 // Comments Off on Third World Politics: Details of the Trump Indictment

    The rule of law, which seems so precious to holier-than-thou Democrats these days, depends above all on one thing: a belief among the majority of us that while no one is above the law, the law will also be applied fairly to all those it does affect. Whether you loathe Trump or love him, you know this: what is happening now in Manhattan is unfair and inconsistent with a nation that once prided itself on believing in the rule of law. Who is still a believer today?

    The previously sealed indictment shows Donald Trump was charged with 34 felony counts for falsification of business records, the only crime actually charged. The falsification of business records is normally prosecuted in New York as a misdemeanor. But Bragg’s office apparently bumped up all the charges to felonies on the grounds that the conduct was intended to conceal another underlying crime, violating election finance law (“with intent to defraud and intent to commit another crime and aid and conceal the commission thereof.”) There is more smoke than fire; no wonder the DA wanted to keep this mess sealed as long as possible and the judge won’t allow cameras in the courtroom. But specifically, how is this unfair?

    Overcharging and stacking charges. Two basic prosecutorial transgressions. If anything, Trump should have been charged with a simple misdemeanor, the so-called falsification of business records for his seemingly characterizing money legally paid to Stormy Daniels and others as part of a nondisclosure agreement as “legal expenses” as well as payments to the National Enquirer to “catch and kill” a story about Trump’s alleged affair with Karen McDougal and other stories.

    The overall case has no victim of Trump’s “crime,” and is basically a tempest over bookkeeping. Bumping all this up to felony charges based solely on Bragg’s supposition that the error was made with the intent to cheat on campaign finance laws is just overcharging, trying to make this all seem more important than it is.

    Stacking, the second basic prosecutorial transgression, refers to a DA’s attempt to break one “crime” into as many pieces as he can (34 counts, one for each check cut to lawyer Michael Cohen allegedly for Stormy, et al) to also exaggerate the importance of it all and justify the felony upgrade.

    Ignoring precedent cases to “get him.” Alvin Bragg ran for office on prosecuting Trump. He is fulfilling a campaign promise and paying off his backers. Bragg, in the words of law professor Jonathan Turley, had a “very public, almost Hamlet-like process where he debated whether he could do this bootstrapping theory [bumping misdemeanors up to felonies.] He stopped it for a while and was pressured to go forward with it. All of that smacks more of politics than prosecutorial discretion.” Indeed, if Bragg were to have looked fairly at precedent he would have run right into the John Edwards case. Edwards, a former United States Senator and 2004 Democratic vice presidential nominee, was indicted in 2011 on charges of violating campaign finance laws during his 2008 presidential campaign. The charges stemmed from allegations Edwards used nearly $1 million in illegal campaign contributions to conceal an extramarital affair during his campaign.

    The government alleged Edwards received money from two wealthy donors and used it to support his mistress and their child in return for their silence. The government claimed this constituted a violation of campaign finance laws, which limit the amount of money that individuals can contribute to a campaign and require that such contributions be disclosed. Edwards maintained the payments were gifts and not campaign contributions, and therefore not subject to campaign finance laws. A jury acquitted Edwards on one count of violating campaign finance laws and deadlocked on the remaining five counts. The government ultimately decided not to retry Edwards.

    Creating New Political Precedent. If this is all they found in years of obsession with destroying this man, he must be the cleanest person to ever hold office. As former Supreme Court Justice Robert Jackson observed decades ago about unfairness, “It is not a question of discovering the commission of a crime and then looking for the man who has committed it; it is a question of picking the man and then searching the law books or putting investigators to work to pin some offense on him,” something that is inherently unfair.

    The law applied equally. For the nation’s sake any action against Trump must preserve what is left of faith in the rule of law applied without fear or favor, or risk civil disenfranchisement if not outright civil unrest. To do this, someone will have to address the case of Hillary Clinton, who maintained an unsecured private email server processing classified material. Clinton destroyed tens of thousands of emails, potential evidence, as well as physical phones and Blackberries. She operated the server out of her New York (!) kitchen. Her purpose in doing all this appeared to have been avoiding Freedom of Information Act requests (a crime with the intent to commit another crime) ahead of her 2016 presidential run. The Hillary campaign and the DNC also did something naughty in paying for the Steele dossier as “legal expenses” and not campaign expenditures, and got off with only an Election Commission fine for their bookkeeping “error.”

    In addition, those who claim Trump’s indictment is not unfair will also have to account for the fact that Barack Obama’s presidential campaigns in 2008 and 2012 were not found to have violated campaign finance laws and no charges were even levied. During the 2008 campaign donors were able to make contributions using fictitious names, such as “Mickey Mouse” and “Donald Duck,” and the campaign was criticized for not doing enough to prevent fraudulent donations. Another controversy involved the Obama campaign’s use of untraceable prepaid credit cards, which raised concerns about the possibility of illegal foreign contributions. No charges were ever filed.

    Unequal prosecution. This concern extends past presidential politics. On Sunday, Speaker of the House Kevin McCarthy tweeted “DA Alvin Bragg is abusing his office to target President Trump while he’s reduced a majority of felonies [in NYC], including violent crimes, to misdemeanors. He has different rules for political opponents.” The DA’s tactics have led to a surge in crimes committed in Manhattan as prosecutions have fallen. Bragg claims equity demands he selectively prosecute; Bragg reduced 52 percent of all felony charges to misdemeanors, opposite of what he did to Trump.

    The Future. If the standards being applied in New York hold, then while this is the first indictment of a former president it will not be the last. Every local prosecutor in the country will now feel that he has a green light to criminally investigate and prosecute presidents after they leave office. Democrats salivating over the charges against Trump will feel differently when a prominent Dem ends up on the receiving end of a similar effort by any of the thousands of prosecutors elected to local office, eager to make their bones by taking down a president of the United States (remember Jim Garrison and the JFK assassination.) Perhaps over the Hunter Biden case? Could things get to the point where the rule of law means a Republican candidate will need to stay out of blue states to avoid prosecution and vice-versa? Trump went to New York and surrendered himself voluntarily; imagine if he had stayed in Florida and fought any extradition attempt to force him to Manhattan. Now imagine an ageing Joe Biden a virtual prisoner of a Democratic safehouse in Delaware. Historians would have to call it the Bragg Rule.

    If you’re curious about how that might work, just have a look at post-military dictatorship Korea where prosecuting one’s political enemies is a popular blood sport. Former President Roh Moo-hyun faced corruption allegations after leaving office in 2008, but he died by suicide before he could face trial. Former President Park Geun-hye was impeached and removed from office in 2017, and she was subsequently sentenced to 25 years in prison on charges of bribery and abuse of power. Former Presidents Kim Dae-jung and Kim Young-sam were investigated for corruption after leaving office, but they were not convicted. Overall, whether a former South Korean president goes to jail after their term depends on various factors, such as the evidence against them, and more significantly, the political climate. Is this America’s future? Ask Alvin Bragg.

     

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    Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.

    Posted in Democracy, Post-Constitution America