Court resumed in the extradition hearing of Julian Assange Tuesday morning. Consortium News watched the proceedings and provides this report.

Prosecutor Says Government Can
Prosecute Journalist for Publishing

11:40 am EDT:  Court has adjourned for the day and will resume on Wednesday morning.

Prosecutor James Lewis QC established in court that the U.S. government can prosecute a journalist for unauthorized publication of classified information, despite the First Amendment concerns of the defense.

“The right of free speech and the public’s right to know are not absolutes,” prosecutor Lewis said on cross examination of defense witness Eric Lewis, and can be “restricted” if the release of “national defense information … could threaten the security of the nation.” 

James Lewis set out that the Espionage Act be used against government employees who breach their trust with the government, but also that the government can prosecute those outside a relationship with the government, such as journalists” who are unauthorized to possess and disseminate secret material. 

“Can journalists be prosecuted” under the Espionage Act? Lewis asked the defense witness. 

The witness said it had never been done before, because of the first amendment. He said that courts have to strike a balance between free speech and national security.  “It is so far from your original opinion, saying that legal precedent precludes prosecuting Assange,” you are changing your testimony, Lewis said.

The prosecutor challenged the witness to cite one precedent that says a publisher can’t be prosecuted.   The witness said the Supreme Court had never been faced with a case like Assange’s before.  

This exchange goes to the heart of the government’s case against Assange though it is the first time it raised it. Instead it has been trying to steer away from the First Amendment issues onto Assange revealing the names of informants–which is not against the law. 

In fact, until its constitutionality is challenged, the Espionage Act does allow for the prosecution of journalists after unauthorized publication of secret material. The Nixon administration empaneled a grand jury in Boston to go after two New York Times journalists in the Pentagon Papers case but withdrew when it was revealed the government was tapping leaker Daniel Ellsberg’s phones and thus listening in on the reporters as well. 

Politicization of the Case

On the virtual stand, witness Lewis made salient points about the role of Attorney General William Barr in politicizing prosecutions and in particular his belief in an “unitary executive” that gives the president almost king-like powers to decide who is prosecuted and who is not.

Prosecutor Lewis was trying to establish that federal prosecution guidelines maintained the independence of the Department of Justice. But the witness referred to a 19-page memo written by Barr that says all prosecutorial decisions rests with the president.

“Barr said that the attorney general and his lawyers are the president’s ‘hand,’”  the witness said. “It’s the unitary executive theory. It’s a fringe theory and this attorney general has articulated that it is his job to follow the president. It is out of step with the entire history of the Department of Justice.”

A second defense witness, attorney Thomas Durkin, who served in the DOJ and has been a criminal defense lawyer in Chicago for decades, testified on direct that in his experience a grand jury is not a bar to a political prosecution.

Durkin was responding to the affidavit submitted by assistant U.S. Attorney Gordon Kromberg in which he says a grand jury is a “potent protection against abuse” of the system. 

Durkin testified:

“The decision to charge someone in my view is made by the Department of Justice, or the local U.S. attorney. In the magnitude of a national security case like this, the decision to prosecute is made by the national security division of the Justice Department.”

Durkin said a grand jury refusing to return an indictment “is unheard of, maybe it happens once every four of five years. 

The issue of whether the prosecution is political is crucial to Assange’s case as the U.S.-UK extradition treaty forbids extradition in a political case.

Prosecutor Seeks to Undermine Testimony on Assange Potential Sentencing and Prison Conditions

6:15 am EDT: Another theme on Tuesday was what kind of prison conditions Assange might meet in the United States and whether he would get a fair trial and sentencing if convicted in the U.S. 

Prosecutor James Lewis grilled the defense witness attorney Eric Lewis on his testimony about the psychological and health effects on Assange’s potential imprisonment and on the length of his likely sentence. 

Lewis tried to undermine witness Lewis’ testimony of the psychological effects of solitary confinement, challenging the statistics the witness cited. He also contested witness Lewis’ view that the federal government is not protecting inmates from Covid-19.

The prosecutor told the court that there are no cases in the Alexandria Detention Center, where Assange would likely be held if sent to Virginia. He also challenging witness Lewis’ testimony that Assange faces up to 175 years in prison, dismissing that as merely a “defense sound-byte.” 

The prosecutor claimed that the longest sentence ever served by someone for unauthorized disclosure to the media was just 63 months, though he did not cite the case.

He did cite the case of Terry Albury, a former FBI agent who shared classified information with the press and received a four year sentence. James Lewis also pointed out that Assange was only being charged with leaking “secret” and not “top secret” information.

Lewis again referred to the affidavit of Kromberg, as he has throughout this case, to claim that prisoners in the U.S. received adequate medical treatment.

Edward Fitzgerald for the defense, on re-direct examination, pointedly asked witness Lewis, “Is Kromberg more qualified that you are on prison conditions?” 

Lewis replied that it was unlikely that Kromberg had often stepped into a prison, while Lewis said as he had spent weeks at Guantanamo, as well as many prisons in the U.S. and UK. 

5:10 am EDT: Testimony of U.S. lawyer Eric Lewis has resumed. He apologized to the court that a tab open on his computer on Monday began spontaneously playing a U.S. TV news clip, in which a former White House spokesperson was heard. “Surely, Sarah Sanders is not permitted to testify in this court,” he said. 

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