WASHINGTON – A federal judge on Wednesday rejected a request to unseal any charging documents — if they exist, something the government won't confirm or deny — against WikiLeaks founder Julian Assange.
The fight over whether a court should unseal records that the government won't confirm exist began in November, when journalists picked up on an unusual court filing that had two references to "Assange" in a criminal case unrelated to him or WikiLeaks. The filing involved a request by prosecutors to seal criminal charges, leading to speculation that the filing was a sloppy copy-and-paste job by the government from a previous, secret request to seal criminal charges against Julian Assange.
The filing spurred the Reporters Committee for Freedom of the Press to file a petition in federal district court in Virginia that it was proof Assange had been charged, and that those records should be public.
The government refused to confirm or deny that Assange had been charged, however. Absent "certain disclosure" that Assange was, in fact, charged, US District Judge Leonie Brinkema wrote in Wednesday's decision that it was premature for her to decide whether the government could keep any such documents under seal.
"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. 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," Brinkema wrote.
The Reporters Committee for Freedom of the Press had argued that the press and the public had a "powerful interest" in access to criminal court records related to Assange and WikiLeaks. The US attorney's office for the Eastern District of Virginia opposed the request, arguing that notwithstanding public interest in Assange and the broader presumption of public access to criminal case records, the First Amendment did not require the government to reveal criminal charges before a person was arrested.
Brinkema heard arguments on Nov. 27. The lawyer for the Reporters Committee argued that the usual concerns the government might have about not tipping off a defendant to an imminent arrest didn't apply to Assange, given how many times the US government had confirmed it was investigating WikiLeaks.
In Wednesday's decision, Brinkema wrote that the Reporters Committee had "the better argument" about when the right of access to criminal case records under the First Amendment applies. The Reporters Committee argued that whether a defendant had been arrested was a factor in whether the government could keep charging records sealed, but didn't change whether the First Amendment applied pre-arrest. The government argued there was no right of access before an arrest.
Notwithstanding that First Amendment analysis, however, Brinkema found that the case was "unique" because the government hadn't acknowledged whether Assange had been charged yet. The Reporters Committee pointed to news reports about investigations into Assange and WikiLeaks and related prosecutions to date — including the new criminal charges against Trump adviser Roger Stone, who is accused of lying to Congress about contacts with WikiLeaks — but Brinkema wrote that wasn't the same as a formal acknowledgment.
"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 acknowledgement," Brinkema wrote.
The judge later wrote: "The Committee has not cited any authority supporting the notion that the public has a right to require the Government to confirm or deny that it has charged someone."
Katie Townsend, legal director for the Reporters Committee, said in an email to BuzzFeed News that they were "disappointed," but she also highlighted the judge's findings about when the First Amendment applied to criminal case records. She said they hadn't decided whether to appeal.
"We’re disappointed the court concluded that our motion to unseal was premature," Townsend wrote. "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 disclosure of the nature of the charges against Assange are a matter of public interest and should be made public."
A spokesperson for the US attorney's office in Virginia declined to comment. Assange was not a party to the case, although his lawyer Barry Pollack attended arguments before Brinkema in November. In an email, Pollack said that "the public and Mr. Assange have the right to know if charges have been brought against him and the nature of the charges."
"The court's decision allows the government to keep this information secret because the government has refused to confirm that it has charged Mr. Assange, a fact that it previously disclosed in an unrelated case. The government's intransigence in refusing to confirm what it has previously admitted should be a reason to demand more transparency, not less," Pollack wrote.
In a statement sent to BuzzFeed News via a Twitter message, WikiLeaks said that, "It is obvious what is going on here. The administration is playing a double game that seeks to build political cover for Assange's arrest without giving the public, the press and Mr. Assange the facts necessary to resist it. That the judge has played along with this absurdity is further proof that Mr. Assange cannot hope to receive a fair trial in the United States."
Updated with comment from Julian Assange's lawyer.
Updated with comment from WikiLeaks.