A front-page story in today's New York Times reports inside details of the Justice Department's investigation of WikiLeaks founder Julian Assange. This raises the question of whether Assange is now himself the victim of illegal leaks.The Times story avoids attributing any details to federal prosecutors, yet manages to read their minds. It reports that Justice Department officials are trying to find out if Assange encouraged Pfc. Bradley Manning to leak classified documents, and that "If he did so, they believe they could charge him as a conspirator in the leak, not just as a passive recipient of the documents who then published them."Under Rule 6e of the Federal Rules of Criminal Procedure, it is unlawful for a government attorney to "disclose a matter occurring before the grand jury." And there is reportedly a federal grand jury, empaneled in Alexandria, Va., investigating the WikiLeaks disclosures.The Times story, scrubbed of attribution in all the key paragraphs that reveal the Justice Department's strategy in the investigation of Assange, evidently attempts to extricate Justice Department officials from problems with Rule 6e:
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.
Having spent seven years as a reporter in federal courts for The Associated Press and New York Newsday, I'm familiar with the sort of code being used here. If Justice Department officials think they can disclose their strategy for a criminal probe that is ongoing before a grand jury without disclosing "a matter before a grand jury," they are walking a very fine line.
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