Julian Assange has lost the first round in his case to avoid extradition to Sweden. His lawyers have said all along if he were sent to Sweden, he’d soon be on his way to the U.S. If the Obama Administration has anything to say about it, he will.

Assange, who is currently in England, faces charges in Sweden of rape and coersion stemming from sexual relations with two women.

But the U.S. Department of Justice has for many months been investigating Assange, the editor of the whistleblower website Wikileaks, in connection with the release of about 250,000 classified cables beginning in November 2010 detailing correspondence between the U.S. State Department and its diplomatic missions around the world.

The Justice Department has set up a grand jury in Virginia to indict him under the Espionage Act. The problem for the Justice Department is that the Espionage Act seemingly does not cover Assange’s acts. It has never been used to criminalize publication of classified information.

The act was used in the Pentagon Papers case to enjoin the publication of classified information. The courts however, having considered the application of the Espionage Act, decided it did not permit the injunction (censorship) of the press.

That case, however, was different than Assange’s because it dealt with censorship before publication. Assange’s case deals with the publication after it has taken place.

Apparently, because the Justice Department couldn’t figure out a way to apply the Espionage Act to publication, it announced on Nov. 30, 2010, it was contemplating an end run around the act. It would investigate Assange to see if he urged Bradley Manning to leak.

Manning is the U.S. soldier arrested in May 2010 on suspicion of having passed classified information on Iraq to WikiLeaks.

This was a clever solution to the Justice Department’s problems. If it couldn’t prove Assange violated the Espionage Act, it would claim Manning had violated the Espionage Act at the urging of Assange.

This was an easier case for the government, since Manning, an employee of the government, in all probability was subject to the Espionage Act, unlike Assange. But if Assange conspired with Manning, Assange could be indicted for conspiracy.

This announcement caused angst in the First Amendment community. If Assange could be indicted for conspiracy, so could every journalist who discussed the leaking of classified information with a source within government. For this reason both the Committee to Protect Journalists and Human Rights Watch protested to the Obama Administration. They urged that Assange not be indicted. In a little noticed announcement several weeks ago, the Justice Department said it was giving up on this approach. It said that it could find no evidence that Assange discussed the leaking of classified information with Manning.

This would seemingly leave the Justice Department with no case. But the department is not giving up easily.

It has subpoenaed the records of users of Twitter to ascertain whether they have knowledge of the leaks of State Department cables.

And on March 1, 2011, the Army announced an additional 22 charges against Manning, which include charges that he copied the Department of State Net-Centric Diplomacy database which contained over 250,000 U.S. records, perhaps in the hope that Manning will cooperate and implicate Assange.

The Justice Department is on what lawyers call a “fishing expedition.” They are looking desperately for any evidence to construct a case. This is surprising because there’s an old saw lawyers use, “anyone can indict a ham sandwich.” What this means is that prosecutors can indict anybody for any reason because they can trump up a charge, ask grand jurors to vote on it and the jurors will blindly follow, even if they are indicting a ham sandwich.

But apparently, the Justice Department cannot even find ham for its sandwich. And so, what started off as a putative prosecution of Assange has turned into a persecution.

The Justice Department is under heavy political pressure to indict Assange. Senators Joseph Lieberman, I. Ct., and Diane Feinstein, D. Calif., have said Assange should be indicted and so should The New York Times. The Times published some of the same material Assange published on his website.

If The New York Times is a publisher protected by the First Amendment, so is Assange and if Assange were indicted, the Justice Department would therefore run into the road blocks put up by the First Amendment, in addition to those discussed above.

Under the First Amendment, the government could not succeed unless the publication of the cables on WikiLeaks constituted a clear and present danger to the national security of the United States.

This would be impossible for the government to prove. No one in the government has pointed to any particular leak that Assange or The Times has published as even “damaging” national security. Indeed, Defense Secretary Robert Gates said while the leak of State Department cables was “embarrassing,” he thought that the consequence of their release would be “fairly modest.”

But even with all these difficulties, it is unreasonable to expect the government will disband the grand jury in Virginia and stop its investigation of Assange. If the Justice Department can think of any possible reason for indicting Assange, as flimsy as it may seem, he may indeed be on his way to the United States via Sweden.

James C. Goodale is the former vice chairman and general counsel of The New York Times.