A paperwork error in an unrelated federal prosecution appears to have accidentally revealed that a federal grand jury has returned a sealed indictment against WikiLeaks founder Julian Assange for unknown crimes. On balance, it seems to be a good idea to try Mr. Assange in a U.S. court if law enforcement can get to him.
Such a prosecution would not come without risks. For instance, the assumed secret indictment would repudiate a well-reported Obama administration decision not to prosecute Mr. Assange despite his repeated publication of damaging U.S. national security secrets, on the assumption that the trial would raise difficult questions about what constitutes protected free speech. And there is the very real risk of even more U.S. secrets spilling out.
A public body of circumstantial evidence suggests that WikiLeaks may have become a false-flag espionage operation cooperating with Russia. This includes its role in circulating emails from the Democratic National Committee in 2016 that had been stolen by Russian military intelligence officers, and the fact that Mr. Assange has often threatened to expose Russian secrets but never delivered. There also is his role in helping CIA-leaker Edward Snowden take refuge in Russia, and his publication of stolen CIA hacking tools. Such troubling acts are more akin to a foreign adversary than a self-styled publisher exercising free speech.
Indeed, then-CIA Director Mike Pompeo, now the secretary of state, said last year that “WikiLeaks walks like a hostile intelligence service and talks like a hostile intelligence service.”
Other documented evidence reportedly collected by the FBI suggests that Mr. Assange has solicited criminal hacking operations. If the government has solid evidence of such acts, the issue of whether WikiLeaks is a legitimate news institution protected by the First Amendment could be dismissed.
The prospect of bringing Mr. Assange to trial still rests on a decision by the Ecuadorean government to expel him from its London embassy. He took refuge there six years ago to avoid arrest and deportation to Sweden, where he faced a rape charge, and apparently has been a burdensome guest.
The rape charge was dropped. But Britain has said he still faces arrest for violating the terms of a bail order when he took refuge in the embassy.
There are signs that Ecuador may be getting ready to deny him further asylum. It recently changed the terms of his stay, cutting him off from the internet, denying him visitors, requiring him to pay his medical and telephone bills and clean up after himself, according to the German magazine Der Spiegel. Sued by Mr. Assange for “violating his fundamental rights” and imposing the “denigrating” requirement that he clean up after his cat and pay for its food, Ecuador’s Foreign Minister Jose Valencia said his nation is not “obliged to do his laundry” or provide him with further legal support.
The problematic nature of sealed indictments such as the one that Mr. Assange now possibly faces was recently addressed on our Commentary page by Bloomberg Opinion columnist Noah Feldman. Such indictments have to be approved by a judge because, “In principle, the public should be able to know whom the government seeks to punish.”
There may have been cogent foreign policy reasons for sealing an indictment against Mr. Assange, especially if there are sensitive diplomatic moves underway to pry him out of his asylum.
While it is still too soon to judge whether the United States can get its hands on Mr. Assange in order to put him on trial, the Trump administration should keep trying.