The Justice Department has apparently prepared to indict Wikileaks founder Julian Assange, setting up a legal battle that could have broad ramifications for the investigations into Russian interference in the 2016 election as well as the government's prosecution of journalists and others who publicize national security secrets.
The revelation was an accident. Prosecutors pursuing an unrelated sex crimes case, against a man named Seitu Sulayman Kokayi, referenced Assange twice in a filing seeking to keep the complaint against Kokayi under seal.
The complaint, prosecutors wrote in the document, "would need to remain sealed until Assange is arrested in connection with the charges in the criminal complaint and can therefore no longer evade or avoid arrest and extradition in this matter." At a separate point in the document, prosecutors wrote that "due to the sophistication of the defendant and the publicity surrounding the case, no other procedure is likely to keep confidential the fact that Assange has been charged."
In a statement obtained by NBC News, Joshua Stueve, a spokesman for the U.S. attorney in the Eastern District of Virginia, said the filing "was made in error. That was not the intended name for this filing."
The filing was first spotted by Seamus Hughes, a former counterterrorism official in government who is the deputy director of extremism program at George Washington University.
Assange is a key figure in special counsel Robert Mueller's inquiry into possible links between the Trump campaign and Russia because of the role his anti-secrecy organization played in disseminating damaging information about Hillary Clinton.
In an indictment obtained in July, Mueller's prosecutors alleged that 12 Russian intelligence officers used Wikileaks as a conduit to "expand their interference in the 2016 U.S. presidential election." Referring to Wikileaks as "Organization 1," Mueller charged that the Russians, "posing as Guccifer 2.0, discussed the release of the stolen documents and the timing of those releases with Organization 1 to heighten their impact on the 2016 U.S. presidential election."
The relevance of Wikileaks to the government's investigation has been in the limelight in recent weeks amid an uptick of grand jury activity related to the conservative provocateur and Trump associate Roger Stone, who claimed to be in talks with Wikileaks in 2016.
In August of that year, Stone said on a conference call that "Julian Assange is going to continue to drop information on the American voters that is going to roil this race." In October, the organization released the first stolen emails from Clinton campaign chairman John Podesta. A previous batch of stolen documents had been released in July.
Donald Trump trumpeted the leaks on the campaign trail. In a now-famous news conference in July 2016, then-candidate Trump said: "Russia, if you're listening, I hope you're able to find the 30,000 emails that are missing." Mueller has alleged that Russia's first attempt to hack Clinton's personal servers came that same day.
Stone has denied any wrongdoing and has said there was no collusion with Russia. Text messages he provided to NBC News show that he was receiving updates from Assange through an associate before Wikileaks began dumping Podesta's stolen documents.
The president's eldest son, Donald Trump Jr., was also in contact with Wikileaks during the 2016 election, and has handed over his correspondence to congressional investigators. His attorney, Alan Futerfas, has said he has "no concerns about these documents and any questions raised about them have been easily answered in the appropriate forum."
Wikileaks has vocally defended its founder, who is currently holed up in the Ecuadorean Embassy in London, since the Virginia court filing surfaced. In a statement, Wikileaks noted that the filing was not signed by Mueller or his prosecutors, and added that "WikiLeaks has never been contacted by anyone from his office."
Assange entered the embassy in 2012 claiming diplomatic asylum. He was wanted at the time in Sweden for alleged sex crimes. That case was dropped in 2017, but Assange's lawyers have said that he will not exit the embassy until he is assured that he will not be prosecuted by the U.S. on espionage charges. The U.S. has become increasingly optimistic that it could prosecute Assange in an American courtroom, The Wall Street Journal reported.
"The news that criminal charges have apparently been filed against Mr. Assange is even more troubling than the haphazard manner in which that information has been revealed," Assange's attorney in the United States, Barry Pollack, said in a statement to NBC News. "The government bringing criminal charges against someone for publishing truthful information is a dangerous path for a democracy to take."
Later, he told CNBC: "We have not been informed that Mr. Assange has been charged or the nature of any charges. We have simply seen what the government filed in an unrelated case saying that Mr. Assange has been charged." Pollack also said it was too early to tell whether Assange would pursue any legal action over the matter.
Any case against Assange for releasing stolen documents would signify a turnaround for the Justice Department, which has previously opted against a prosecution.
The government regularly prosecutes those who steal and leak government documents, such as the former NSA contractor Edward Snowden, who is alleged to have done so. But it is trickier to prosecute organizations that disseminate the stolen information. The government has said that such a prosecution could implicate mainstream news organizations.
In the landmark 1971 Pentagon Papers case, the Supreme Court found that the First Amendment protected the right of news outlets to publish stolen government documents without fearing censorship or official retribution.
Glenn Greenwald, a transparency advocate and journalist who was awarded the Pulitzer Prize in 2014 for his coverage of the Snowden leaks, wrote Friday that the Justice Department under former President Barack Obama had determined that "there would be no way to prosecute Assange for publishing classified documents without also prosecuting the New York Times, the Washington Post, the Guardian and others for doing exactly the same thing."
The American Civil Liberties Union rallied to Assange's defense on Friday following the revelation of the potential charges.
"Any prosecution of Mr. Assange for Wikileaks' publishing operations would be unprecedented and unconstitutional, and would open the door to criminal investigations of other news organizations," Ben Wizner, director of the group's speech, privacy and technology project, said in a statement.
Wizner said the prosecution would set an "especially dangerous" precedent for journalists in the U.S. who "routinely violate foreign secrecy laws to deliver information vital to the public's interest."
Members of Congress have sought to pass laws that could cause the courts to revisit who can be prosecuted for publishing stolen government materials.
In 2010, then-Sen. Joseph Lieberman, a Democrat, and Republican former Sens. John Ensign and Scott Brown, introduced so-called anti-Wikileaks legislation that would have made it a crime to publish the name of an intelligence source. It did not come to a vote. Brown is now the U.S. ambassador to New Zealand.