The Next Bob Woodward Could Be Muzzled by the Assange Verdict

The charges brought against the WikiLeaks founder would criminalize good reporting

Bob Woodward and Carl Bernstein at their desk at the Washington Post. Photo: Bettmann/Getty Images

The U.K. extradition hearing for WikiLeaks founder Julian Assange is now in its third week, but you would hardly realize it if you read only mainstream news outlets. Despite the fact that most of the major newspapers in the United States vehemently condemned the Trump administration’s charges against Assange as a threat to press freedom, there has been a worrying lack of coverage of the case.

Yet it also happens that the one person who so perfectly exemplifies the danger of the charges against Assange is someone who’s been the source of countless front-page stories for the past two weeks: America’s most famous reporter, Bob Woodward.

Woodward has dominated news coverage this month with the release of Rage, which contains material from 18 previously unreleased interviews with President Trump. But if the precedent the Trump administration is seeking in the Assange case existed at the start of Woodward’s career, he certainly wouldn’t be reporting on what the president secretly told him about Covid-19 or the many other revelations in his new book.

In fact, Woodward’s legendary investigation into Watergate, which made him the household name he is today, likely never would have gotten off the ground. Richard Nixon would not have been forced to resign. Instead, Woodward and his former Washington Post reporting partner Carl Bernstein would be in jail. And if the two legendary journalists somehow managed to avoid prosecution during the Nixon era, Woodward could have been prosecuted at countless other points in his career.

I made this point when I testified as an expert witness on behalf of the defense in the Assange hearing two weeks ago, but given the stakes, it’s worth explaining further here.

Assange is charged with well over a dozen counts under the Espionage Act — the 100-year-old law First Amendment experts have long warned could be used to jail journalists reporting on government secrets. (It should be noted the U.S. government’s indictment focuses only on WikiLeaks’ 2010 publication of Defense and State Department documents leaked by Army private Chelsea Manning and not anything they published in the run-up to the 2016 election.)

The Espionage Act charges against Assange can be broken down into three basic categories: “conspiring” with Chelsea Manning to obtain classified “national defense” documents by speaking with her while she was sending them and then allegedly implying he would like more, receiving those documents, and publishing a subset of the documents he received.

Obtaining secret documents, convincing sources to hand over more, and publishing them are core activities journalists engage in every day. And all you have to do is listen to any interview with Woodward to believe it.

In fact, Woodward even teaches this process to prospective journalism students. In a recently filmed episode for MasterClass, the online learning platform, he laid it all out in black and white. In his class, which independent videographer Matt Orfalea details in this excellent video mashup, Woodward explains how he persistently approaches sources and asks them for classified documents and that such documents rarely just fall in his lap. Woodward has even publicly implored a government security clearance holder at a conference to email or call him. (The United States spends several pages in its Assange indictment detailing how WikiLeaks publicly asked sources to leak documents to them in 2009 and 2010, as evidence of criminality.)

Woodward goes even further in his MasterClass episode: “If you can get someone to plug your hard drive into their computer, say, at the NSA or the CIA,” he says, “you can get all kinds of important information.” Virtually every charge in the Assange indictment is for newsgathering more subtle than that.

Take, for example, Woodward’s 2010 book, Obama’s Wars, an inside look at the Obama administration’s national security policies in its first year. Notably, the book is chock-full of “top secret” and “sensitive compartmentalized information” — higher-classification designations than anything WikiLeaks is currently accused of publishing in Assange’s extradition case. It’s as closely held as government information gets: Classified NSA code words, secret CIA paramilitary programs, Chinese hacking operations, and much more. Time and again Woodward has shown his talent for, as a reviewer in the Globe and Mail once put it, “cajoling classified documents from officials sworn to safeguard them.”

In arguing its case in the Assange indictment, the government makes a big deal in its court filings that correspondence found in Osama bin Laden’s compound referenced WikiLeaks’ publication of the Afghanistan war logs, including a letter to bin Laden from another member of al-Qaida and a request from bin Laden himself.

But guess who else’s material was found in bin Laden’s compound? Woodward’s. Obama’s Wars was one of the many books by U.S. journalists found among his belongings after he was killed by U.S. forces in 2011. Is this evidence Woodward harmed national security and should be prosecuted? That’s what the U.S. government is essentially arguing. After all, Woodward published newsworthy yet highly classified information, which was then read by a U.S. enemy.

We might not even know Woodward’s name if a government policy against “conspiring” was established law in the 1970s. The Nixon administration could have thrown Woodward and Bernstein in jail before their life-changing Watergate investigation made it to the front page.

First Amendment attorney Lee Levine explained why in a piece warning against the prospect of criminalizing the newsgathering process with “conspiracy” or “aiding and abetting” charges against reporters:

If, for example, the press could be prosecuted for “aiding and abetting” violations of the Privacy Act, it would appear that the Washington Post, Bob Woodward, and Carl Bernstein could all have been charged in the wake of their persistent solicitation and receipt of information from FBI Deputy Director Mark Felt about the FBI’s then-ongoing investigation of specific, identified persons implicated in the Watergate investigation who had not yet been indicted.

Woodward and Bernstein did not restrict their solicitation of confidential information to conversations with Deep Throat, either. Bernstein called up a telephone company and had an employee leak phone records of one of the Watergate burglars. Later, they got a credit card company to leak them the credit card records of a Nixon associate so they could track his movements around the country. They both famously knocked on the doors of dozens of grand jury members, imploring them to talk, even though it was illegal for the grand jury members to do so.

Woodward and Bernstein “conspired” with their sources on all of these occasions. As I said in my testimony, imagine what Nixon could have done to them if this was considered a crime at the time.

You may not like Assange, and you may not think he is a journalist, but his prosecution is a threat to all journalists. And if this extradition goes through, the Trump administration will have all it needs to finally act on what the president has long dreamed of doing: putting reporters in jail.

Trevor Timm is the executive director of Freedom of the Press Foundation. His writing has appeared the New York Times, the Guardian, and the Intercept.

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