This is a rush transcript from "The Journal Editorial Report," December 11, 2010. This copy may not be in its final form and may be updated.
PAUL GIGOT, HOST: This week on the "Journal Editorial Report," former attorney general, Michael Mukasey, on the legal case against WikiLeaks founder, Julian Assange.
Plus, the Obama/Republican tax cut deal that's sold as a second stimulus, but is it?
And a group of California parents pull the trigger in a bid to transform one of the state's worst performing public schools. Could they spark a nationwide education revolution?
Welcome to the "Journal Editorial Report." I'm Paul Gigot.
As WikiLeaks founder, Julian Assange, sits in a London jail facing extradition to Sweden on sex charges, some American officials are demanding he be tried in the United States for the release of thousands of classified documents, including last week's dump of sensitive State Department cables. But could Assange be prosecuted under American law, and should he be?
Michael Mukasey is the former attorney general of the United States. He joins me now.
Judge, welcome back. Great to have you back here.
MICHAEL MUKASEY, FORMER ATTORNEY GENERAL: Good morning.
GIGOT: So your success as attorney general, Eric Holder, said his department is investigating whether to prosecute Assange, and would like to. If you were still attorney general, what statute would you be looking at?
MUKASEY: I'd be looking at two sections of what's called the Espionage Act, one of which criminalizes the circulation of the circulation, the publication of defense-related information, and the other of which criminalizes the publication of classified information.
GIGOT: This is the Espionage Act of 1917, a World War I statute?
MUKASEY: An oldie, but goody.
GIGOT: OK. What do you have to prove to get a conviction on the Espionage Act? Do you have to prove, for example, that the leaks damaged national security?
MUKASEY: You have to prove that they were done with the intent to damage the United States. You have to prove, in order to get — there is one of those sections that carries the death penalty. If you prove that a result of the leaks was to disclose the identity of a U.S. agent, and that agent lost his life, then a penalty up to death may be imposed.
GIGOT: Now what would the impact on the prosecution be if you get a comment like we had last week by Defense Secretary Robert Gates, who said, well, some of the criticism of this is overwrought, some of the fears about the damage done by the release of these diplomatic cables is overwrought? That would hurt the prosecution potentially?
MUKASEY: It would hurt the prosecution potentially. Presumably, the defense would use it as a government edition (ph). But it would not, certainly would not bar the prosecution.
GIGOT: Now the Espionage Act has never been used before, to my knowledge — and you can correct me if I'm wrong. But as far as I've looked back on it, never been used against a publisher, not even in World War II when The Chicago Tribune disclosed that we had — suggested that we had broken the Japanese code after the battle at Midway. FDR decided, that administration, not to prosecute. Why would you make an exception in this case?
MUKASEY: Well, the reason that they decided not to prosecute in World War II was not because the statute didn't apply, but rather because the Japanese hadn't picked up on the story.