But while prosecutors have used such laws to go after leakers and hackers, they have never successfully prosecuted recipients of leaked information for passing it on to others — an activity that can fall under the First Amendment’s strong protections of speech and press freedoms.
Last week, Attorney General Eric H. Holder Jr. said he had just authorized investigators to take “significant” steps, declining to specify them. This week, one of Mr. Assange’s lawyers in Britain said they had “heard from Swedish authorities there has been a secretly impaneled grand jury” in northern Virginia.
Justice Department officials have declined to discuss any grand jury activity. But in interviews, people familiar with the case said the department appeared to be attracted to the possibility of prosecuting Mr. Assange as a co-conspirator to the leaking because it is under intense pressure to make an example of him as a deterrent to further mass leaking of electronic documents over the Internet.
By bringing a case against Mr. Assange as a conspirator to Private Manning’s leak, the government would not have to confront awkward questions about why it is not also prosecuting traditional news organizations or investigative journalists who also disclose information the government says should be kept secret — including The New York Times, which also published some documents originally obtained by WikiLeaks.
Quite the contortions to get around Constitutional protections of free press. Even if they think they've gotten around the letter of the Constitution, they sure as hell haven't gotten around the spirit of its protections.