The investigation into potential Russian interference of the 2016 presidential election continues to dominate headlines, but one aspect of the saga has fallen completely away from public view: the case of former NSA contractor Reality Winner. Little attention is paid to the Trump administration’s first prosecution in its war on leaks, and the person being prosecuted for allegedly attempting to shine light on hackers’ attempts to probe the U.S. election infrastructure.
The Justice Department is now engaged in a multi-pronged effort to hamstring Winner’s defense against charges of violating the Espionage Act behind cumbersome classification rules, cut off any attempt by Winner to argue her alleged disclosures did not harm national security, and, according to her lawyers, were unconstitutionally keeping parts of the case hidden from public view.
The efforts on the part of the prosecutors represent a broad push by the government to hamper Winner’s attempt to defend herself.
In a brief filed on November 27, Winner’s defense team accused federal prosecutors of using secrecy rules to stifle their ability to do even basic research about the case. They’re arguing that “a number of limitations and concerns have arisen that present a serious obstacle to the defense’s ability to gather evidence and prepare its case, and that are contrary to the Constitution and the presumption of openness in federal courts.”
The restrictions imposed by the government for operating under the law impose a huge burden on the defense team. And the stringent rules, along with other arguments the prosecution is making to the judge, could leave Winner little room to make her case.
The efforts on the part of the prosecutors represent a broad push by the government to hamper Winner’s attempt to defend herself. They are seeking to prevent Winner’s lawyers from citing public news articles in open court, restricting their ability to research those public articles even in private, hiding several aspects of the case completely from public view, and arguing that someone charged under the Espionage Act is not even allowed to bring up the fact that her actions never harmed national security.
A key part of the defense’s argument may hinge on the fact that nothing Winner is alleged to have leaked actually damaged national security and that similar information was likely already in the public domain. If the defense can prove that, then they can show that she did not violate the Espionage Act, which requires the “national defense information” released to have been “closely held” — a true secret, in other words. (The Intercept’s parent company, First Look Media, has taken steps to provide independent support for Winner’s legal defense through the Press Freedom Defense Fund. First Look also contributed $50,000 in matching funds to the Stand With Reality campaign, which I co-founded.)
A key part of the defense’s argument may hinge on the fact that nothing Winner is alleged to have leaked actually damaged national security.
The law, however it’s being interpreted by the judge, as of now, bars the defense from citing this information — news articles, mostly — in its public legal briefs, and the prosecution is now trying to tie the defense’s hands by making it difficult to even research this information in private.
Winner’s defense team, which is already limited by the number of security clearances obtained in a timely fashion, is only allowed to discuss classified aspects of the case — defined so broadly to encompass virtually everything they do — in one of two government-designated Sensitive Compartmented Information Facilities. Because the defense team is located in multiple states, research and communication among Winner’s lawyers are incredibly cumbersome and slow. What’s more, the lawyers are only allowed to discuss the case with Winner herself in one of these SCIFs.
While the prosecutors are afforded a classified email system so they can communicate with each other more freely and easily, the defense team is not. The defense team is prohibited from doing internet searches for public news articles outside the SCIF if they may contain classified information — even those that don’t cite Winner’s alleged leak. There are dozens, if not hundreds, of public news articles on alleged Russian interference in the 2016 election that contain such information. But, because they can’t take the information out of the SCIF in any form, the defense cannot run standard Google searches for these types of articles to determine how they are related to the case.
The government’s restrictions on the defense are of a piece with its first major win early on in the case: Prosecutors convinced a judge that the defense shouldn’t be allowed to cite any news articles that may or may not contain classified information in any briefs open for public view.
On top of all this, several weeks ago, the government made sweeping arguments attempting to prohibit the defense team from making any argument related to national security at all — either publicly or behind closed doors. The Justice Department wrote in a little noticed brief in October that “the government is not required to prove: (1) that the disclosure of the classified intelligence reporting could threaten the national security of the United States, or (2) the specific mens rea requirements alleged by the Defendant, including intent to injure the United States.”
The Justice Department is contending that it doesn’t matter if Winner didn’t intend to harm the United States; it doesn’t matter if the document didn’t actually harm national security; and it didn’t even matter if the document could potentially could harm national security. Prosecutors are essentially arguing the national security implications of the leak are totally irrelevant and therefore, shouldn’t even come up at trial.
The defense accused the prosecution of violating the Constitution by entirely hiding aspects of the case from public view.
It’s bad enough that the trial has faded from public attention, but in the same November 27 brief, the defense accused the prosecution of violating the Constitution by entirely hiding aspects of the case from public view.
Many of the briefs in the case are filed under seal because they allegedly contain classified information. Instead of posting those documents on the public docket in redacted form, as the prosecutors are required to do by a protective order they already agreed to, the government has been forgoing even making the existence of such filings public at all.
Even if some of the information is classified, the public still has the right to know these briefs exist, and there’s plenty of case law to back it up. It’s not only a violation of Winner’s rights to a public trial as a defendant, but a violation of the public’s right to know how the government is prosecuting the case.
On Monday, months into the ongoing case, the government placed at least some of the classified filings on the public docket. But it’s still unclear how many and when other portions will be made available. And it doesn’t bode well that the government had to apparently be forced into complying with the law on public filings by a defense motion accusing it of violating the constitution.
With all the restrictions put on Winner’s defense team, it’s plain to see that leakers and whistleblowers tried under a law made for spies cannot get anything close to resembling a fair trial.
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