President Donald Trump’s attorneys made a solid case for preemptively pardoning Julian Assange in a motion to dismiss a WikiLeaks-related lawsuit against the Trump campaign.
While preemptive pardons are rare — they are not unheard of.
The motion, filed on December 29, was in response to a lawsuit by two Democratic Party donors who allege that the Trump campaign and former adviser Roger Stone conspired with Russians to publish the leaked Democratic National Committee emails. The outlandish lawsuit, based largely on conspiracy theories, was orchestrated by a group called Protect Democracy — which happens to be run by former attorneys from the Obama administration.
In defense of the Trump campaign, the 32-page filing by Michael A. Carvin argues that the publishing of the DNC leak passes both aspects of the Bartnicki First Amendment Test.
The first part of the case law is that a defendant may not be held liable for a disclosure of stolen information if it deals with “a matter of public concern.”
Addressing this portion, Carvin’s filing asserts that there can be “no serious doubt” that the disclosures from WikiLeaks satisfied the “newsworthy” and “public concern” portion of the test.
The motion argues that ‘”punishing truthful publication in the name of privacy’ is always an ‘extraordinary measure’ — doubly so when the publisher did nothing illegal in obtaining the information.”
Assange has never been credibly accused of publishing information that was not truthful. In over ten years of releasing documents, WikiLeaks has never had to retract a single thing that they have published — unlike the mainstream media who also rely on leaks, scoops and secrets.
To counter the argument from the plaintiffs that only portions of the released emails were “newsworthy” and thus not all of it should be considered protected under the First Amendment, the lawyers for the Trump campaign asserted that “tort law analyzes newsworthiness on an aggregate basis,” meaning that the entirety of the disclosure as a whole is considered protected free speech.
The second portion of the test requires that the speaker (or publisher) was not “involved” in the theft.
“They certainly make no effort to show that the Campaign was ‘involved’ in the initial theft of the DNC emails, in effect conceding that the Campaign satisfies the second part of the Bartnicki First Amendment test. The dispositive question is thus whether the disclosure in this case dealt with ‘newsworthy’ and ‘public’ issues. There can be no serious doubt that it did,” the filing reads.
“That ends the case: The disclosure satisfies the First Amendment test.”
Given that WikiLeaks does not steal or hack the documents that are provided to them, and most rational people would agree that all of their leaks have been newsworthy, the Bartnicki First Amendment Test is not only satisfied by the Trump campaign — but also by Assange and his organization.
For those who are unfamiliar with their process, WikiLeaks publishes leaked material that is given to them as long as it meets their editorial criteria; it must be of political, diplomatic or ethical importance and it must not have already been released by another organization.
Along with Trump’s lawyers, the State Department also inadvertently presented a solid case for the US government’s eight year long grand jury proceedings against Assange to come to an end.
During a press conference regarding Iran on Tuesday, State Department Spokeswoman Heather Nauert claimed that the US supports freedom of the press — and implied that only nations who are up to no good would attack news sites.
“When a nation clamps down on social media, or websites, or Google… or news sites… we ask the question, what are you afraid of?” Nauert said.
.@statedeptspox: We support a freedom of the press. When a nation clamps down on social media, we ask the question — what are you afraid of? We support the people of #Iran, and we support their voices being heard. pic.twitter.com/4dG4FlWTMJ
— Department of State (@StateDept) January 2, 2018
WikiLeaks responded to her question by snarkily quoting the video and tweeting, “US government on why it has decided to close its eight year long grand jury proceedings against @WikiLeaks (expanded in 2017 to cover our series on the CIA). Wait, what?”
— WikiLeaks (@wikileaks) January 2, 2018
Assange entered the Ecuadorian Embassy in London on June 19, 2012, where he applied and was granted political asylum. Since that time, the building has been encircled by police waiting on standby to arrest him. Many fear that should he be arrested in London, he would be extradited to the United States where he would face harsh penalties for practicing journalism.
WikiLeaks has repeatedly denied allegations that they work with Russia or that the DNC Leaks were provided to them by a state actor.