ASSANGE HEARING DAY SIX—Prosecutor Says Government Can Prosecute Journalist for Publishing

Court resumed in the extradition hearing of Julian Assange Tuesday morning. Consortium News watched the proceedings and provides this report.

Stay with Consortium News all day for continuous updates as we have remote video access to watch every moment of court proceedings. Follow our live Tweeting.  And tune in to CN Live! at 5 pm BST, noon EDT every day court is in session for a video report on the day’s events. 

Prosecutor Says Government Can
Prosecute Journalist for Publishing

11:40 am EDT:  Court has adjourned for the day and will resume on Wednesday morning.

Prosecutor James Lewis QC established in court that the U.S. government can prosecute a journalist for unauthorized publication of classified information, despite the First Amendment concerns of the defense.

“The right of free speech and the public’s right to know are not absolutes,” prosecutor Lewis said on cross examination of defense witness Eric Lewis, and can be “restricted” if the release of “national defense information … could threaten the security of the nation.” 

James Lewis set out that the Espionage Act be used against government employees who breach their trust with the government, but also that the government can prosecute those outside a relationship with the government, such as journalists” who are unauthorized to possess and disseminate secret material. 

“Can journalists be prosecuted” under the Espionage Act? Lewis asked the defense witness. 

The witness said it had never been done before, because of the first amendment. He said that courts have to strike a balance between free speech and national security.  “It is so far from your original opinion, saying that legal precedent precludes prosecuting Assange,” that you are changing your testimony, prosecutor Lewis said.

The prosecutor challenged the witness to cite one precedent that says a publisher can’t be prosecuted.   The witness said the Supreme Court had never been faced with a case like Assange’s before.  

This exchange goes to the heart of the government’s case against Assange though it is the first time it raised it. Instead it has been trying to steer away from the First Amendment issues onto Assange revealing the names of informants–which is not against the law. 

In fact, until its constitutionality is challenged, the Espionage Act does allow for the prosecution of journalists after unauthorized publication of secret material. The Nixon administration empaneled a grand jury in Boston to go after two New York Times journalists in the Pentagon Papers case but withdrew when it was revealed the government was tapping leaker Daniel Ellsberg’s phones and thus listening in on the reporters as well. 

Politicization of the Case

On the virtual stand, witness Lewis made salient points about the role of Attorney General William Barr in politicizing prosecutions and in particular his belief in an “unitary executive” that gives the president almost king-like powers to decide who is prosecuted and who is not.

Prosecutor Lewis was trying to establish that federal prosecution guidelines maintained the independence of the Department of Justice. But the witness referred to a 19-page memo written by Barr that says all prosecutorial decisions rests with the president.

“Barr said that the attorney general and his lawyers are the president’s ‘hand,'”  the witness said. “It’s the unitary executive theory. It’s a fringe theory and this attorney general has articulated that it is his job to follow the president. It is out of step with the entire history of the Department of Justice.”

A second defense witness, attorney Thomas Durkin, who served in the DOJ and has been a criminal defense lawyer in Chicago for decades, testified on direct that in his experience a grand jury is not a bar to a political prosecution.

Durkin was responding to the affidavit submitted by assistant U.S. Attorney Gordon Kromberg in which he says a grand jury is a “potent protection against abuse” of the system. 

Durkin testified:

“The decision to charge someone in my view is made by the Department of Justice, or the local U.S. attorney. In the magnitude of a national security case like this, the decision to prosecute is made by the national security division of the Justice Department.”

Durkin said a grand jury refusing to return an indictment “is unheard of, maybe it happens once every four of five years. 

The issue of whether the prosecution is political is crucial to Assange’s case as the U.S.-UK extradition treaty forbids extradition in a political case.

Prosecutor Seeks to Undermine Testimony on Assange Potential Sentencing and Prison Conditions

6:15 am EDT: Another theme on Tuesday was what kind of prison conditions Assange might meet in the United States and whether he would get a fair trial and sentencing if convicted in the U.S. 

Prosecutor James Lewis grilled the defense witness attorney Eric Lewis on his testimony about the psychological and health effects on Assange’s potential imprisonment and on the length of his likely sentence. 

Lewis tried to undermine witness Lewis’ testimony of the psychological effects of solitary confinement, challenging the statistics the witness cited. He also contested witness Lewis’ view that the federal government is not protecting inmates from Covid-19.

The prosecutor told the court that there are no cases in the Alexandria Detention Center, where Assange would likely be held if sent to Virginia. He also challenging witness Lewis’ testimony that Assange faces up to 175 years in prison, dismissing that as merely a “defense sound-byte.” 

The prosecutor claimed that the longest sentence ever served by someone for unauthorized disclosure to the media was just 63 months, though he did not cite the case.

He did cite the case of Terry Albury, a former FBI agent who shared classified information with the press and received a four year sentence. James Lewis also pointed out that Assange was only being charged with leaking “secret” and not “top secret” information.

Lewis again referred to the affidavit of Kromberg, as he has throughout this case, to claim that prisoners in the U.S. received adequate medical treatment.

Edward Fitzgerald for the defense, on re-direct examination, pointedly asked witness Lewis, “Is Kromberg more qualified that you are on prison conditions?” 

Lewis replied that it was unlikely that Kromberg had often stepped into a prison, while Lewis said as he had spent weeks at Guantanamo, as well as many prisons in the U.S. and UK. 

5:10 am EDT: Testimony of U.S. lawyer Eric Lewis has resumed. He apologized to the court that a tab open on his computer on Monday began spontaneously playing a U.S. TV news clip, in which a former White House spokesperson was heard. “Surely, Sarah Sanders is not permitted to testify in this court,” he said. 

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12 comments for “ASSANGE HEARING DAY SIX—Prosecutor Says Government Can Prosecute Journalist for Publishing

  1. Billy Field
    September 15, 2020 at 21:59

    In my view, interesting how the whole focus in Media & elsewhere has been shifted from the “War Crimes” committed by Public Officials to a “Whistleblower” called Julian Assange…Actually, had Assange not exposed & reported the War Crimes he would have been complicit in covering up those crimes. As for the bogus & “Fake News” stories re Assange being a “Rapist”…how low can “The Establishment” get…? As for the so called UK/Western “Judicial System”….too often it’s a total farce … “We have a problem Huston”!…The nub of it all is Assange & his ilk want better debate, transparency & accountability re wrongful, idiotic & corrupt Govt behaviour…Assange had one of the first “Drop Boxes” for leakers ..which most all Media have now….He, & increasingly others, are dealing with the notion that “endless wars & interventions” are not only insanely murderous & destructive to the “Nations Bombed” & others but also totally unnecessary…& bad for West too…consider China’s progress without this madness? …whilst West seems determined to destroying itself? The Wars are in fact counter-productive. They are entirely facilitated by Media propaganda & political corruption…Pity there is not Millions more on the Streets in the West chanting “Jail the War Criminals & Free Assange”. To assert thighs is not “Political” is a ludicrous lie!

  2. Robert Sinuhe
    September 15, 2020 at 19:32

    It is not clear to me how revealing the truth of an illegal action is threatening the national security of a nation. This case is far more important than that mentioned in the 1st Amendment about freedom of the press. Our freedom of speech has been compromised along with the ability to petition the government for redress of grievances. We’ve seen what happened to the 2nd amendment namely that children are allowed machine guns. The reaction to 9/11 did in the 4th. This whole thing sounds like a railroad job to me.

  3. September 15, 2020 at 18:53

    The ironic occasion, in a British trial, of Sarah Sanders making an unscripted audio-video appearance, causing the judge to flee and the Hearing to be postponed, brings memories of a Monty-Python skit to mind.
    As serious supporters of Julian Assange we must not be fooled by the false representations made by the unethical inquisitors masquerading as DOJ prosecutors of our Constitutional ‘rule of law’. It is they, and all of their fellow-travelers, that are the active criminal element in this dastardly charade, not the unwitting targets of their immoral and unlawful ideological zeal.
    For another informative and interesting approach to covering this event see:
    As Usual,

  4. Gail Storm
    September 15, 2020 at 18:47

    The Espionage Act has always been one of those embarrassing moments in U.S. history. Unfortunately it is still law.

  5. Doop
    September 15, 2020 at 16:28

    “In fact, until its constitutionality is challenged, the Espionage Act does allow for the prosecution of journalists after unauthorized publication of secret material.”

    Yeah, but which exact material is in question here? If it’s only that which was published by wikileaks that’s one thing.

    But if it’s also that which was published by the NYT, Guardian, etc, seems a very valid question would be why then the US isn’t prosecuting those individual publishers/journalists as well.

    If it’s the same exact material then why would they be allowed to publish it, while Assange would get 175 years for doing so? That doesn’t make a lick of sense.

    • Trailer Trash
      September 16, 2020 at 10:06

      Might makes Right, so The Law is whatever Uncle Sam says it is. Parsing the detailed meaning of laws and who they apply to is a waste of time.

      Thanks to the internets, even peons can now read judicial decisions. Reading a few is enough to understand how the machine works: important decisions are based on political expediency. The Dred Scott decision (African descendants can’t be citizens) is a good place to start. The Supreme Court decision allowing US citizens of Japanese ancestry to be rounded up and shoved into concentration camps is another good example of justice-by-expediency. More recently the Supreme Court handed the 2000 election to Shrub Bush.

      Even the much-worshiped US Constitution is not what people think it is. For example, people think the Thirteenth Amendment bans slavery, but actually it *legalizes* slavery and forced labor for prisoners with the phrase “except as a punishment for crime”.

      The heroic stories of the Founding F’ers, the Constitution, and the legal system are parts of modern Bread and Circus. Our Dear Leaders obviously admire and wish to emulate the Roman Empire, but they must’ve dozed off during the lectures discussing how the Romans came to a bad end.

      US peons are doomed to follow that path to collapse. The only question in my mind is, will Uncle Sam push the nuclear war button as its last gasp?

  6. Dfnslblty
    September 15, 2020 at 13:44

    Keep reporting, CN

  7. Buffalo_Ken
    September 15, 2020 at 10:59

    I just want to go on record acknowledging how much I appreciate this daily “real-time” reporting of a critical event that for most (too many) is under the radar. Anyhow, that is why I contributed again to CN. Thank-you.

    As an aside, I would like to also express my heartfelt appreciation to Mr. Craig Murray and all his efforts even while he himself is also being forced into court on completely bogus charges. Something is afoot…..

    Me-thinks some comeuppance is in the cards for false magistrates and twisters of justice, but this is a odd high-stakes game. May the best win and may the victory be swift and ruthless for those who truly deserve some “in your face justice”. That is my prayer for the day and I was happy to send in my 100 bucks.

    I know what team I am on.


      September 15, 2020 at 13:20

      Thank you for your donation and for appreciation of our site.

  8. September 15, 2020 at 10:00

    Perhaps the Assange defenders should take the position that allowing & facilitating the imprisonment & potential silencing of a witness and publicizer of war crimes, is a war crime per se as delineated in Geneva.

    • oldsailor87
      September 15, 2020 at 15:26

      I think you might be right about that!!!

  9. Me Myself
    September 15, 2020 at 08:45

    A” tab open on his computer” accidentally (on purpose?). I love it! Try to unhear that judge. I hope the court reporter wrote it down. I will bet it was extremely pertinent.

Comments are closed.