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Lawyers seeking access to sealed Julian Assange case argue DOJ lacks justification for secrecy

December 4, 2018

Attorneys seeking details about the U.S. government’s investigation into WikiLeaks publisher Julian Assange argued Monday that the Department of Justice lacks justification for continuing to keep its case completely sealed.

Lawyers for the Reporters Committee for Freedom of the Press, a nonprofit organization representing journalists’ interests, raised the claim throughout a 12-page memorandum filed in federal court in Alexandria, Virginia, where the group initiated legal proceedings last month seeking access to sealed documents related to the Justice Department’s pending prosecution of the Australian-born WikiLeaks boss.

“The Reporters Committee does not dispute that, in some cases, prior to an arrest the Government may have a compelling interest that justifies temporary sealing of court records subject to the First Amendment right of access,” attorney Caitlin Vogus wrote in the memo. “But such interests are not present prior to an arrest in all cases, and the Government cannot justify wholesale sealing of the Assange Prosecution, specifically, based on nothing more than the fact that Assange is not in U.S. custody.”

“The Government does not demonstrate a compelling interest that would justify keeping the entirety of the Assange Prosecution sealed by mulishly asserting the fiction that Assangewho has confined himself to the Ecuadoran Embassy in Londonmight attempt to evade arrest if the nature of the charges pending against him are made public,” she added. “Given the specific circumstances here, unsealing court records from the Assange Prosecution, including the ‘contents’ of the criminal complaint against Assange, would not ‘pose any extra threat’ that he will evade or avoid arrest, or implicate any other compelling interest of the Government.”

A spokesperson for the U.S. Attorney’s Office in Alexandria declined to comment.

The Reporters Committee filed a motion last month seeking access to court records related to Mr. Assange, 46, after his surname was spotted in a document entered by prosecutors in the Eastern District of Virginia in an unrelated case.

Coupled with subsequent media reports, the Reporters Committee argued that the filing confirmed that Mr. Assange has been charged under seal, raising First Amendment concerns given his role as a publisher and warranting transparency. The Justice Department said the filing was made by mistake, however, and that the government is not required to acknowledge the existence of any charges brought against an individual prior to their arrest.

U.S. District Judge Leonie M. Brinkema responded during a hearing last week by asking the Reporters Committee to provide additional material in support of its request to unseal any court documents involving Mr. Assange, setting the stage for the group to file Monday’s supplemental memo.

“The Reporters Committee has been unable to locate any published decision in which a court has 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,” Ms. Vogus acknowledged Monday. “The Government, however, has not cited, and the Reporters Committee is unaware, of any case holding that the public’s constitutional and common law rights of access to court records in criminal matters are either inapplicable or overcome merely because a defendant is not in custody.”

The “fact that Assange has been charged with an unspecified crime or crimes has raised questions about the Government’s potential willingness to pursue charges that may be based on the publication of information questions that implicate First Amendment concerns, and can only be answered by unsealing the criminal complaint against Assange,” the group added.

Judge Brinkema, a Clinton appointee, previously said the Justice Department would have a week to respond to the Reporter Committee’s latest filing.

Mr. Assange entered the Ecuadorian Embassy in London in 2012 while under house arrest and was subsequently granted asylum and citizenship. British authorities said he will be apprehended upon existing, however, potentially paving the way for his possible extradition to the U.S.

The Justice Department began investigating WikiLeaks after the website published classified U.S. diplomatic and material documents in 2010. Authorities have since taken an interest in the website’s subsequent leaks, including internal Democratic National Committee emails and CIA hacking tools published in 2016 and 2017, respectively.

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