What did Assange do, and what exactly is he charged with? All day, I’ve heard and read commentary from everyone under the sun – much of it confused and contradictory.
Is Assange protected by the First Amendment? Are journalists everywhere threatened by the heavy hand of an authoritarian US government if he is prosecuted and convicted? Below, I’ll try to summarize exactly what the Assange indictment alleges and why, if true, the allegations are not protected by the First Amendment.
You can read the Assange indictment for yourself, here.
What is Conspiracy?
Conspiracy is a “catch-all” offense under federal law that allows the US government to charge you with crimes that other people committed and to sentence you for crimes that other people committed…
Often, federal charges are accompanied by a conspiracy charge – it happens in drug cases, fraud cases, and apparently, “computer intrusion” cases as well.
How Do Conspiracy Charges Work?
18 USC Section 371 makes it a crime to conspire to 1) commit a crime or 2) defraud the United States:
If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned not more than five years, or both.
If, however, the offense, the commission of which is the object of the conspiracy, is a misdemeanor only, the punishment for such conspiracy shall not exceed the maximum punishment provided for such misdemeanor.
Although the statute says it carries a maximum sentence of five years, that’s misleading. A person charged with conspiracy to commit fraud, if convicted, will be sentenced based on the conduct (and loss amount) of every other person in the conspiracy – in some cases, even if they never met the coconspirator and had no idea what the coconspirator was doing…
So, how do you establish a conspiracy?
How do You Prove Conspiracy?
Although the law of conspiracy can be convoluted depending on the fact pattern, there is a simple answer: conspiracy is nothing more than an agreement between two or more people to commit an illegal act.
What does “agreement” mean? An agreement implies a “meeting of the minds” – does that mean prosecutors need to produce writings or a verbal statement that establishes an agreement between two or more people? No – the “agreement” required for a conspiracy conviction is usually implied through a person’s actions.
For example, Tom sells a kilo of cocaine to Jimbo. Jimbo then sells smaller portions of that kilo to Jessie, Billy Bob, and Juanita, each of whom will sell even smaller portions to more coconspirators. None of them ever sat down together and said, “Hey, let’s agree to sell drugs.”
But all are members of the same conspiracy – even though Juanita never met or spoke with Tom and Jessie doesn’t know Billy Bob exists. And all can be held responsible for the conduct of every other person in the conspiracy…
What if there is a “meeting of the minds” but one person does not take any action to complete the crime?
Prosecutors must also prove an “overt act in furtherance of the conspiracy.” To be convicted of conspiracy, you must have actually done something to show that you were actively participating in the crime.
Is Assange Protected by the First Amendment?
Julian Assange (and WikiLeaks) are a media organization, right? Not a traditional news network, but they are reporting and providing valuable information to the public, aren’t they?
Doesn’t the First Amendment protect them? I’ve heard several commentators today arguing that it is a purely politically motivated case – all Assange did, they say, is encourage Chelsea Manning to get the information and provide it to him. Isn’t that what all journalists do?
If you aren’t sure what Assange is accused of, read the indictment for yourself – it’s not terribly long or complicated. And, it alleges a bit more than just “encouragement.”
What are the Allegations in the Assange Indictment?
Chelsea Manning downloaded and stole a trove of classified documents from US government departments and agencies, including “90,000 Afghanistan war-related significant activity reports, 400,000 Iraq war-related significant activity reports, 800 Guantanamo Bay detainee assessment briefs, and 250,000 U.S. Department of State cables.”
Manning provided those documents to WikiLeaks (Assange), who published most of them.
Setting aside the question of whether Assange had a right to publish classified documents that were provided to him by a third party (I think he does have that right), no problem so far. There may be an agreement to obtain and publish the documents and an overt act in furtherance of that agreement, but I believe that, so far, this conduct is protected by the First Amendment.
But wait, there are some details in the indictment that those commentators must have missed – what other acts are alleged that, if proven, would be conspiracy to commit a crime that is not protected by the First Amendment?
- “Assange agreed to assist Manning in cracking a password stored on United States Department of Defense computers connected to the Secret Internet Protocol Network, a United States government network used for classified documents and communications…”
- “The portion of the password Manning gave to Assange to crack was stored as a “hash value” in a computer file that was accessible only by users with administrative level privileges…”
- “Cracking the password would have allowed Manning to log onto the computers under a username that did not belong to her…”
That doesn’t sound like Assange was innocently receiving newsworthy information and publishing it.
If the allegations are proven, it looks a lot like Assange was conspiring, not just to publish newsworthy documents, but also to hack into a government computer for the purpose of taking classified documents. I don’t see how that could possibly be covered by the First Amendment, or why we would want it to be.
The First Amendment does not give journalists a license to commit crimes in search of newsworthy material to publish. Imagine if a journalist broke into a politician’s office to steal documents from their filing cabinet and then publish them. Is the First Amendment a defense to burglary charges?
Is encouraging a source to steal classified material enough to charge a journalist with conspiracy? It may be, but whether the encouragement alone justifies a prosecution is debatable.
Is participating in the theft of classified material enough to charge a journalist with conspiracy? Is hacking a government computer enough? Because, despite what the pundits are saying, that is what is contained in the Assange indictment.
SC Criminal Defense Lawyers in Myrtle Beach and Conway
The Myrtle Beach criminal defense lawyers at Coastal Law defend our clients against all types of criminal accusations, including conspiracy charges.