Further: Assange wasn't simply charged with "receiving and publishing classified information"; he was charged with being instrumental in that information being exfiltrated in the first place.
Practically, yes.
I've been in situations where there was no precedent, and in asking what would happen if this went to court, decisions were made based on how lower courts ruled. Legal analyses, law review articles, customary practice, etc. all /influence/ courts.
Correct. As a general rule:
- When the "black-letter law" dictates a result (that is, a statute or binding precedent), a judge will generally follow it — unless the judge really wants to achieve a particular result and is willing to do mental-gymnastics rationalizing or to try to get the law changed.
In other situations, judges are typically very busy but they still want to get it "right," in accordance with whatever their personal mental model of life suggests, and they don't like being reversed on appeal. So they (judges) look for support — and try to anticipate possible counterarguments — from a variety of sources, as suggested by the adversaries' counsel battling each other's arguments — each of whom is motivated to help the judge do what counsel want by finding the sorts of things mentioned above.
>Further: Assange wasn't simply charged with "receiving and publishing classified information"; he was charged with being instrumental in that information being exfiltrated in the first place.
Those charges were (presumably) dropped as part of the plea, and his plea did not mention them. The plea is only about receiving and publishing.
The "overt acts" part you mention is over Title 18 793(g) which basically says if two people work together in one part of a conspiracy they're both guilty of any actions their partner made.
By way of example: the murder-for-hire accusations against Ross Ulbricht were listed "overt acts" in his conspiracy charge.
>By way of example: the murder-for-hire accusations against Ross Ulbricht were listed "overt acts" in his conspiracy charge.
Yes, the supposed murder for hire was something he wasn't charged with and wasn't mentioned in his sentencing. It was not a part of his trial.
"Title 18" is almost the entire federal criminal code. Saying "a specific clause in title 18" is like saying "somewhere, in the entire US federal criminal code, it says...".
As I just said: the murder-for-hire scheme --- which I believe was in fact part of Ulbricht's sentencing --- was an "overt act" in Ulbricht's conspiracy charge.
I had referenced the specific clause, 793(g), in my previous post to you. It is also referenced in the plea. I didn't think I needed to do so again. I can quote the section
>If two or more persons conspire to violate any of the foregoing provisions of this section, and one or more of such persons do any act to effect the object of the conspiracy, each of the parties to such conspiracy shall be subject to the punishment provided for the offense which is the object of such conspiracy.
Here: a Ken White article that is almost entirely about how "overt acts" work in conspiracy charges, along with their historical purpose:
https://popehat.substack.com/p/overt-acts-and-predicate-acts...
I still don't see how the plea is about anything else. That if this charge went to trial they may have brought up his supposed violations of the CFAA as some kind of evidence of his conspiracy doesn't really change things.
In both threads, the answer comes down to: the plea agreement says otherwise. Assange has stipulated to his culpability in the conspiracy --- the 793(g) charge you brought up. The plea agreement doesn't list the overt acts that substantiate the charge, and would make clearer the reasoning behind Assange's active participation. But that's because the plea agreement is a stipulation, for which the only evidence needed is that of agreement between prosecution and defense.
The superseding indictment is much more explicit. Had the case ever gone to trial, you'd have seen at its conclusion jury instructions that would have made clear the evidentiary threshold --- the overt acts, what acts qualify, etc --- to convict on the conspiracy.
The case isn’t about Assange simply receiving classified material from Manning.
Why are you quoting that part rather than any of the actual offenses? He undoubtedly conspired with Manning to receive classified documents for the purpose of publishing them, which is what the plea details.
Part (a) even says he "received or obtained" classified documents from a person knowing that they were illegally obtained. It doesn't say he helped with the illegal obtaining.
What you should do here is compare the plea stipulation to the superseding indictment, and note that the "overt acts" of the conspiracy charge refer back to the "general allegations" section. Or: you could go track down any other conspiracy indictment (Ulbricht's is a fun one) and see examples of "overt acts" listed explicitly.
This differs from for example The Pentagon Papers where the material was delivered to reporters after already having been taken. They had no foreknowledge that they would be taken.
By way of comparison, the former US president who is also in current poll results more likely than not to be elected as the next US president is presently alleged to have conducted 40 of these 18 U.S. Code § 793 offences.
[1] https://www.law.cornell.edu/uscode/text/18/793
[2] https://en.wikipedia.org/wiki/Federal_prosecution_of_Donald_...