January 31, 2019 / 8:16 PM / in 6 months

Judge in Assange unsealing case: Reporters group can’t force U.S. to confirm criminal charges

(Reuters) - The Reporters Committee for Freedom of the Press (RCFP) is convinced that Julian Assange, the Wikileaks founder holed up in the Ecuadorian embassy in London, has been criminally charged by federal prosecutors in the U.S. There’s all kinds of evidence of secret charges against Assange, according to the RCFP. Wikileaks was referenced in public indictments Special Counsel Robert Mueller obtained against President Trump’s longtime advisor Roger Stone and against Russian military intelligence officers accused of conspiring to hack Democratic National Committee computers. News outlets including the Wall Street Journal and the New York Times have reported that Assange is facing charges. Wikileaks itself (though the RCFP didn’t mention this) believes that Assange has already been secretly charged and that U.S. prosecutors are pressuring witnesses to testify against him.

The most telling evidence, according to the Reporters Committee, came from a prosecutorial slip last fall. The government unsealed a motion in an unrelated – and previously secret – case against a defendant named Seitu Sulayman Kokayi. The unsealed motion contained two references to Assange, apparently cut-and-pasted from a different filing. In one mention advocating sealed charges, prosecutors said any procedure “short of sealing will not adequately protect the needs of law enforcement at this time because, due to the sophistication of the defendant and the publicity surrounding the case, no other procedure is likely to keep confidential the fact that Assange has been charged.” In the other reference, the government said charges and supporting documents needed to be kept secret “until Assange is arrested in connection with the charges in the criminal complaint and can therefore no longer evade or avoid arrest and extradition in this matter.”

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An eagle-eyed antiterrorism expert at George Washington University noticed and reported on the Assange references in the Kokayi case, prompting a storm of news coverage on the government’s inadvertent disclosure that someone named Assange, who fears extradition to the U.S., has been secretly charged.

The factual threads, according to the Reporters Committee, weave one tapestry: Prosecutors have charged Julian Assange with crimes and have moved to keep the charges under seal. Last November, the RCFP filed a petition in federal court in Alexandria, Virginia, to unseal the records of the case against Assange. Common law and the First Amendment, the group argued, presume that the public has a right to court proceedings. And though that right isn’t absolute, RCFP argued, the government can’t claim an overriding interest in maintaining the secrecy of a case that has been publicly disclosed.

On Wednesday, U.S. District Judge Leonie Brinkema of Alexandria agreed with the RCFP about the importance of the public’s right to access judicial records, which she called “an indispensable feature of the American justice system.” She agreed with the committee’s technical argument that the public has a presumptive First Amendment right to access charging documents before a defendant is arrested.

But Judge Brinkema ruled that the RCFP’s motion to unseal Assange case files is premature because we really don’t know for sure whether Assange has been charged. Federal prosecutors from the Alexandria U.S. Attorney’s office have acknowledged that the Kokayi filing erroneously contained references to Assange but in its opposition to the RCFP unsealing petition, the government refused to confirm that Julian Assange has been charged. In light of that refusal, Judge Brinkema said, “the Committee's evidentiary amalgam of an obviously erroneous filing in an unrelated case, public speculation, news stories and anonymous statements by government officials does not supply a level of certainty comparable to that afforded by official acknowledgment.”

The judge said that uncertainty about whether there’s actually a criminal case against Assange changed the basic nature of the RCFP’s petition. RCFP argued – and cited case law supporting the argument – that the public has a right to see case records in a prosecution that has become publicly known. The government countered that there is no publicly known criminal case against Julian Assange. In essence, Judge Brinkema said, the RCFP’s motion would force prosecutors to confirm the existence of charges whose existence is not a certainty.

The case could have set important constitutional precedent on the public’s right to access case files before a defendant has been arrested. The government told Judge Brinkema that no judge has ever ordered federal prosecutors to disclose the existence of a charging document before a defendant has been arrested. Even the RCFP, in its supplementary brief after a hearing before Judge Brinkema, said that it couldn’t find any published decision in which a judge “granted (or denied) a motion by a member of the news media or public to unseal a criminal complaint or other charging document prior to arrest.” The committee also said, however, that the absence of such precedent doesn’t mean the public has no constitutional right to such material.

Instead of engaging on the merits of the constitutional issue, Judge Brinkema framed her ruling as a matter of ripeness. “Until there is a sufficiently certain disclosure that charges have in fact been filed, the committee’s common law and First Amendment claims are premature,” she wrote. “To hold otherwise would mean that any member of the public or press - by demanding access to judicial records based on little more than speculation - could effectively force the government to admit or deny that charges had been filed. Permitting such fishing expeditions would require courts to sort through endless factual permutations giving rise to varying degrees of uncertainty. Courts cannot perform the delicate balancing required by the First Amendment and common law doctrines under such uncertain circumstances.”

Everyone involved in the case emphasized the unique circumstances of RCFP’s petition. It’s hard to predict how much weight Judge Brinkema’s decision will have because it’s hard to imagine a repeat scenario in which prosecutors have mistakenly disclosed strong but not probative evidence of a secret criminal case. As RCFP Legal Director Katie Townsend told me, it’s incredibly rare for the press and the public to get wind of sealed criminal charges, which is why there’s no previous case law on unsealing the records pre-arrest. “The question left open,” she said, “is when all the records are sealed, how much evidence must be out there to cross the threshold.”

In an email statement, the RCFP said it was disappointed Judge Brinkema held its motion to be premature but appreciated other aspects of the decision. “Even though the court did not reach the merits of our motion, it did rightly recognize that there is a First Amendment and common law right of access to the types of court records at issue here,” the group said. “The disclosure of the nature of the charges against Assange are a matter of public interest and should be made public.”

The views expressed in this article are not those of Reuters News.

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