DESPICABLE VS. DESPICABLE AND THE FIRST AMENDMENT

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Julian Assange is an enemy of the United States, the leader of Wikileaks, described by CIA-head Pompeo as a ''hostile intelligence service often abetted by ... Russia." Assange has severely injured this country's standing in the world, and endangered the lives of our troops and local U.S. supporters in Afghanistan via his publication of Pvt. Bradley Manning's treasonous leaks in 2010. And, of course, Assange was instrumental in helping Russia interfere in our 2016 election. He is also a despicable antisemite and an accused rapist who has for years avoided criminal prosecution by blackmailing the President of Ecuador to secure a berth in the Ecuadorian Embassy in London. (Let's not forget candidate Trump told one of his rallies, "I love Wikileaks.")

But as much as I'd like to see Assange run over by a truck  (one delivering the NYTimes would make for nice irony), I have always recognized that the third-party publication of stolen government secrets was, like it or not, protected by current First Amendment construction.

So when I tuned into MSNBC after a hard day in the sun at Flamands beach yesterday, rehydrating with Tanqueray and Tonic, I was upset by some hair-on-fire suggestions that the despicable William Barr had just taken a big bite out of the First Amendment by indicting the despicable Julian Assange.

Gone was my tranquil cocktail hour. Those talking heads left me no choice but to fire up my Macbook and read the actual indictment -- an act, it appears, that some of the TV "analysts" had not bothered to do with their Macbooks. What, no WIFI in MSNBC's green room?

Ok, here is what Assange is charged with:

18 USC 1030 makes it a crime to conspire to hack into a government computer site containing classified information. And, belt and suspenders, 18 USC 371 makes it a crime to conspire to commit an offense against the United States -- and hacking into a government computer is an offense against the United States.

Conspiracy has two basic legal requirements: i) an agreement  to commit an offense, and ii) an overt act, i.e. some conduct in furtherance of the agreement. The crime is complete when those two elements exist, whether the conspiracy is successful or not.

The Assange indictment charges Manning and Assange did two key things: i) they agreed to try illegally to hack into secret government computer sites, and ii) Manning downloaded from a government site an operating system that could get the conspirators into a high-level secret Department of Defense computer site. He had part of a password to the site, gave it Assange, then each of them tried, apparently unsuccessfully, to get the other part necessary to complete the password. Assange wrote to Manning, "No luck so far."

Clear? I suggest an analogy: Assume Manning and Assange agreed to physically intrude into a locked room where government secrets are kept. (You know, the old-fashioned way, like the Watergate burglars.) Manning acquires a physical key, but it is incomplete -- it lacks some of the bumps and grooves necessary properly to align the cylinders in the lock. Manning gives a copy of the incomplete key to Assange, who, from his embassy workshop, tries to configure the key, but fails, and reports to Manning, "No luck so far."

Or how about this simpler analogy: two guys agree to rob a house. Using a grinding machine and metal files, they together try to craft a key to the front door, but when they get there they find they can't get in because the owner had installed a lock that was too complex for the key they had made.

In each case, our principals are guilty of criminal conspiracy.

Bottom line: the Assange indictment, though thin, does not dilute Freedom of the Press. Manning and Assange were engaged in a criminal conspiracy. The First Amendment offers no immunity to criminals who wear a press badge.

The penalty for violation of 18 USC 1030 is ten years. Too bad we can't charge Assange with something that would get him a 35-yr. sentence, like Manning got.

Oh yeah, as to Chelsea Manning, you will doubtless recall that in an Executive Order (that bothers me as much now as it did then), President Obama commuted her sentence to seven years, which she has served.  But she's now back in jail, having contemptuously refused to answer questions in the grand jury after having been granted immunity.

Ms. Manning has unique ethical principles. While she had no problem traitorously trashing her country's interests by giving Assange a million classified documents, some of which endangered lives, her "ethics" now prevent her from giving testimony before a grand jury doubtless looking into the possibility of additional charges against Assange. She refuses to testify because she "has a principled stance against grand jury secrecy."

Huh? We should not be surprised by her insincerity.  The secrecy requirement of grand jury proceedings is imposed only upon officials, and not upon witnesses. Manning would be legally free to tell the world everything that occurred in that grand jury room. Even by her own "principled stance," there would be no bar to her testifying. In short, Ms. Chelsea Manning has the same level of integrity and loyalty to her government as did Pvt. Bradley Manning.

Methinks she is protecting Assange. (I would not be shocked to learn that Assange, directly or indirectly, communicated with Manning on the subject of grand jury silence. Obstruction! Lovely! Hey, I can dream, can't I?)

Unfortunately, Manning can be held in jail on the contempt charge only until the end of the grand jury's term, and any extension thereof. I have an idea: Trump is focusing on revoking Obama's Executive Actions on all sorts of subjects. What about assigning someone in the White House Legal Counsel's Office to look for a legal justification for a Trump Executive Order revoking Obama's Executive Order that commuted Manning's sentence? 

And if they can't find a legal justification, what about just doing it anyway?

A bientot!

As my regular readers know, there is no fixed schedule for these posts. If you want a notice of each new posting, send me an email and I will add you to the notice list.  mlondon34@gmail.com

And by the way, if you want more info on the limits of the First Amendment, read my memoir, "The Client Decides."  First Amendment stuff, Jackie Onassis, Donald Trump, Roy Cohn. Good stuff!