The Washington Post reported on Monday that a formal decision hasn't yet been made.
But former Justice Department spokesman Matthew Miller told the newspaper that Assange, like journalists and news outlets, merely published the leaks, as opposed to being the leaker himself, which puts him on the same legal standing as the New York Times, for example:
The problem the department has always had in investigating Julian Assange is there is no way to prosecute him for publishing information without the same theory being applied to journalists. And if you are not going to prosecute journalists for publishing classified information, which the department is not, then there is no way to prosecute Assange.
In fact, officials call it a "New York Times problem."
If they go after Assange - now living under political asylum in a room in the Ecuadoran Embassy in London - they'd then have to go after journalists, the New York Times, and other publications, including The Post and The Guardian, all of which have published classified material such as the National Security Agency's (NSA's) and other countries' secret surveillance operations.
In spite of the lack of grounds on which to file charges against Assange and all the publications that have published classified material, there's no clear indication that an announcement will be made if the grand jury investigation into Assange is formally closed.
Assange's legal team has a problem with that.
Barry J. Pollack, an attorney for Assange, told The Post that inquiries into the status of the investigation have not been fruitful:
We have repeatedly asked the Department of Justice to tell us what the status of the investigation was with respect to Mr. Assange. … They have declined to do so. They have not informed us in any way that they are closing the investigation or have made a decision not to bring charges against Mr. Assange. While we would certainly welcome that development, it should not have taken the Department of Justice several years to come to the conclusion that it should not be investigating journalists for publishing truthful information.
As for those who themselves leaked classified documents, Bradley Manning - he who fed documents to Assange - was sentenced to 35 years of prison in August. He's already served three of those years.
Likewise, the US's hunt for NSA whistleblower Edward Snowden, who's obtained temporary asylum in Russia, is still on.
US Attorney General Eric H. Holder Jr. told The Post earlier in November that the Department of Justice (DOJ) is still trying to get Snowden back into the country to stand trial.
However, much like the Manning-Assange legal logic, Holder said that the DOJ doesn't plan to prosecute former Guardian reporter Glenn Greenwald, who is one of the journalists to whom Snowden fed documents.
Greenwald, a US citizen, has said that he fears prosecution if he returns to the US from his current home in Brazil.
Holder has said that neither Greenwald nor Assange will likely be prosecuted, but there's an "unless" involved.
If investigators found that Assange, or Greenwald, are implicated in criminal activity other than publishing top-secret military and diplomatic documents, the gloves will come off.
Here's what Holder told The Post:
Unless information that has not come to my attention is presented to me, what I have indicated in my testimony before Congress is that any journalist who’s engaged in true journalistic activities is not going to be prosecuted by this Justice Department.
That previously undisclosed information could include, for example, any evidence that might show that Assange hacked into a US government computer, a former law enforcement official told The Post.
And it's the uncertainty of that "unless" that's keeping Greenwald, for one, away.
As Greenwald told TruthDig, he doesn't necessarily trust the US, given its track record regarding press freedom:
That this question is even on people’s minds is a rather grim reflection of the Obama administration’s record on press freedoms. … It is a positive step that the Attorney General expressly recognizes that journalism is not and should not be a crime in the United States, but given this administration’s poor record on press freedoms, I’ll consult with my counsel on whether one can or should rely on such caveat-riddled oral assertions about the government’s intentions.
What do you think? Do you trust the US to leave Assange and journalists alone, or do you share Greenwald's suspicions, based on its track record?
Let us know your thoughts in the comments section below.Follow @NakedSecurity