This is a tale of two defendants and two systems of justice.
Christmas was coming, and Paul Manafort wanted to spend the holiday with his extended family in the Hamptons, where he owns a four-acre estate that has 10 bedrooms, a pool, a tennis court, a basketball court, a putting green, and a guest cottage. But Manafort was under house arrest in northern Virginia. Suspected of colluding with the Russian government, the former campaign manager for Donald Trump had been indicted on a dozen charges involving conspiracy, money laundering, bank fraud, and lying to federal investigators.
A lobbyist who became mysteriously wealthy over the years, Manafort avoided jail by posting $10 million in bond, though he was confined to his luxury condo in Alexandria, Virginia. That’s why, in mid-December, his lawyers asked the judge to make an exception. Manafort’s $2.7 million Virginia home could not provide “adequate accommodations” for his holiday guests, some of whom would have difficulty traveling because of health problems, the lawyers stated. A day later, the judge agreed to the request. Manafort could have his Christmas getaway in the Hamptons.
As Christmas approached, Winner was going nowhere. Even though she has been indicted on just one count of leaking classified information and faces far less prison time than Manafort, the judge in her case decided she was a flight risk and denied her bail. Winner spent the holidays at the Lincolnton jail, which is smaller in its entirety than Manafort’s Hampton’s estate; its exercise yard, hemmed in by razor wire, is shorter than Manafort’s pool. While Manafort was joined by his family, Winner was marooned with a few other inmates. The only cheery news for her was that for the first time since her arrest the previous June, she was able to eat fresh fruit, thanks to a holiday donation from a local church.
The U.S. government rarely acts kindly toward the leakers it chooses to prosecute — unless they happen to be popular figures like David Petraeus, the former general and CIA director who shared with his girlfriend several notebooks filled with top-secret information; he was allowed to plead guilty to just a misdemeanor charge. It was the Obama administration that ramped up the prosecution of leakers, using the Espionage Act against eight of them. But in most of those cases, such as the ones that involved conventional leaks of single documents or names, the sentences were not long – about two years – and the accused were not confined to jail before their trials.
It is far different in the Trump era. Not only has the president consistently derided the press as enemies of the people, but he has also pushed the Department of Justice to accelerate its crackdown on leakers. Late last year, Attorney General Jeff Sessions proudly announced that the DOJ was investigating three times as many leaks as in the Obama era. Earlier this year, the release of memos written by former FBI Director James Comey showed that leaks were a topic of his talks with Trump. “I said I was eager to find leakers and would like to nail one to the door as a message,” Comey wrote about his February 14, 2017 meeting in the Oval Office, adding that the president “said something about the value of putting a head on a pike as a message.”
A few months later, Reality Winner was arrested and charged under the Espionage Act – the first leak case of the Trump era, the first head on a pike. Two days after her arrest, The Intercept published an article about a top-secret NSA document that described what the agency knew about Russian attempts to hack the U.S. voting system. The Intercept was not aware of the identity of the source who provided the document, though other news organizations connected it to Winner. The document, dated May 5, 2017, described a monthslong effort by Russian military intelligence to hack elements of the U.S. election and voting infrastructure through a combination of tactics that included phishing attempts against local election officials. At the time, the document was the most detailed account to emerge from the Trump administration about the Russian hacking efforts – and it emerged only because someone had leaked it.
Winner was not treated like other government workers indicted in the Obama era for conventional leaks (a separate group from those charged with mass leaks, like Edward Snowden and Chelsea Manning). Whereas Jeffrey Sterling, Stephen Kim, and John Kiriakou were charged and released on bond, Winner was denied bail and jailed near her Augusta home. Prosecutors claimed she had dangerous views – among other things, they cited a sarcastic remark she’d made about America’s reliance on air conditioning – and they asserted without proof that she might have more documents on a thumb drive (her lawyers have denied it). The prosecutors also said that because she was a translator who spoke Farsi, Dari, and Pashto, she might try to leave the United States. But there had been just one occasion in her entire life when Winner made an overnight visit to a foreign country, her mother told me – a weekend trip to Belize.
One of the punitive flaws of the criminal justice system is that a large number of people are unnecessarily held in pretrial detention. The bail system plays to the advantage of wealthy defendants like Paul Manafort and Harvey Weinstein (who paid his $1 million bond with a cashier’s check), because they can provide the government with fantastic sums; freedom is quite literally for sale, as in a story Anton Chekhov might have written about czarist Russia. The poor and the unlucky are stuck behind bars, punished before their guilt is determined. Defendants who are unable to pay bail have sometimes been held for years without a trial.
The Lincolnton jail usually has about a half dozen or, at most, a dozen female inmates, according to Winner’s mother. Similar to local jails across the country, many inmates have been arrested on drug offenses, and some go through withdrawals while there. Winner has been attacked on one occasion – she ended up with a gash on her head, according to her mother. Billie Winner-Davis also said that her daughter has access to a small outdoor pen for about 30 minutes of exercise a day, though not on weekends – that is the entirety of her time outside.
Strip searches are a routine feature of life. When she is taken to the federal courthouse about 45 miles away in Augusta, Winner is strip-searched after every visit to the courtroom and every meeting with her lawyers, her mother said. She is also shackled at the ankles and the waist (she fell once, and because her hands were bound, she landed on her face, bruising it). The whole process is so humiliating that, according to Winner’s mother, she has asked to not attend the hearings in Augusta unless it is absolutely necessary. Of course, these difficulties are not unique to Winner – across the country, this is what happens all the time to people who are denied bail or simply cannot pay it. “Reality has been through a lot,” Billie Winner-Davis said. “Being in the military for six years, she’s not a soft person. But for her to cry and say, I can’t do this, that she’s treated, she’s not even human any more…” – Winner-Davis breaks off at this point.
As Christmas approached and Reality Winner sat in the Lincolnton jail, Paul Manafort was the recipient of another holiday gift from the judge in his case. He was granted permission to move from his Virginia condominium to a larger $1.5 million home he owns in a gated community in Palm Beach, Florida.
Imagine that you are facing trial but are forbidden from searching for evidence to prove you are innocent. It is a scenario from a totalitarian “Alice in Wonderland” – you may do anything you want to defend yourself except the one thing that might actually help.
That’s a rough approximation of the situation Winner’s lawyers have faced due to a strange twist in her case. She is accused of potentially causing “exceptionally grave damage” to national security by leaking a classified document that, the government claims, contains “national defense information.” NDI is a special designation that the Espionage Act uses for sensitive and closely-guarded information that might harm national security if leaked. But what if the document did not merit this elevated status? What if its disclosure didn’t actually cause “exceptionally grave damage,” or any damage at all?
That’s the key pathway Winner’s lawyers want to follow in her defense, according to one of their latest filings. For a long time, the government has over-classified the avalanche of documents it creates, exaggerating the sensitivity of its cables, reports and analyses. Even Obama admitted that the government has a classification problem. For instance, a State Department official acknowledged in a court filing that the classified report at the heart of Stephen Kim’s case was “a nothing burger.” (Kim, a former State Department expert on North Korea, agreed to a plea deal, rather than risk going to trial and, if he lost, getting a longer sentence.)
But there’s an absurd catch to the over-classification defense that Winner’s lawyers want to pursue, and they have had to fight about it for much of the time she has been in jail.
It is a scenario from a totalitarian “Alice in Wonderland” – you may do anything you want to defend yourself except the one thing that might actually help.
Early in the case, Winner’s lawyers received security clearances to read the classified document she is accused of leaking. They had to read it in what’s known as a SCIF – a Sensitive Compartmented Information Facility, which is a secure room in a government building. Outside the SCIF, they were not allowed to disclose the document’s contents to anyone who does not have a security clearance.
Winner’s lawyers have stated in public filings that they needed to search on the internet to determine whether information in the document was known to a large number of government officials or was in the public domain. This was crucial to their effort to prove that the document did not merit NDI status. But because the document is classified, and because researching its contents on the internet could disclose search queries to hackers who theoretically could compromise the lawyers’ computers or access their routers, they were prohibited from Googling key phrases, according to court filings. In essence, Winner’s lawyers were forbidden from finding out if the document was as sensitive as the government claimed.
Of course, the document Winner is accused of leaking is widely reported to be the document published by The Intercept on June 5, 2017. There is virtually nothing about the document that her lawyers can give away because, as reported, the document was published, with a few redactions, by The Intercept. But that didn’t change the restrictions. In the government’s view, a classified document remains classified even after it has been published. Lawyers are still bound by the rules: They may not take any action, such as typing a phrase into a search bar, that might disclose the contents of a classified document even if everyone basically has access to it.
There’s yet another bizarre feature in the classified wonderland of Winner’s case. Just as government officials are forbidden from talking about classified matters on unsecured phone or email systems, Winner’s lawyers are under the same restrictions, according to court filings. But unlike the government’s lawyers, they do not have secure systems at their disposal. This means they cannot chat on their work phones or exchange work emails about classified aspects of the case. They generally have to convene in the same room to talk about the leaked document, and that’s a major impediment because they are dispersed across the country, in Georgia, Louisiana, Maryland, Tennessee, and Washington, D.C.
In November, they filed a motion to lift what they described as “unconstitutional limitations” on Winner’s right to defend herself. The November 27 motion said the defense was unfairly restricted in its ability to “conduct research necessary to gather evidence” and “communicate with one another in a timely and efficient manner.” The restrictions prevented them from having “conversations involving nearly anything of substantive consequence,” including discussing news stories about the leaked document. Their motion argued that the restrictions got in the way of their core effort to determine whether publication of the document “could actually threaten the national security of the United States.”
They apparently have won partial relief. In a hearing on February 27, one of Winner’s lawyers said that after several rounds of negotiations with the prosecution, they had “been able to work out a protocol” on restrictions over internet searches. It’s not clear, from the transcript, what those protocols consist of and whether the restrictions have been lifted or just amended – key parts of the case remain classified. But there was no mention of changing the restrictions on communicating with each other on phones and email, so those crucial impediments seem to remain in place for Winner’s lawyers.
That’s partly because these cases are priorities for the government, involving political crimes that touch on issues of loyalty to the nation. The government puts enormous resources into prosecuting and generating publicity about such cases, with senior Justice Department officials often announcing the indictments.
There’s another reason deep pockets are needed. The discovery process is far more complicated when the target of discovery is classified. The government and its intelligence agencies are exceedingly reluctant to share their secrets with outsiders, especially lawyers for whistleblowers. Pretrial work is onerous and frustrating. Winner’s lawyers have requested that the court issue 41 subpoenas, most of them to state and federal agencies; all but one of those requests have been turned down. The defense is appealing.
Legal costs do not matter much to the Manaforts and the Weinsteins of the world; they can shell out millions of dollars in fees without breaking stride. But for pretty much everyone else, such expenses are ruinous. Kim, the State Department official who received a 13-month sentence in his plea bargain, depleted his savings accounts, and his family sold whatever they could, even jewelry and furniture. They raised about $1 million, and the lawyer who represented Kim, Abbe Lowell, absorbed about $1 million more on a pro bono basis. If the case had gone to trial, the costs would have been even greater.
Winner had about $30,000 in a bank account when she was arrested (which the government used against her, arguing that she had the means to flee the country). Her mother has just retired after working for decades as a mid-level manager for Child Protective Services in Texas. Like most people, they could not possibly afford the daunting costs of her defense, which are on a par with Kim’s. In Winner’s case, the Press Freedom Defense Fund, a division of The Intercept’s nonprofit parent company, First Look Media Works, is contributing to the fees.
There is one final, terrible irony to Winner’s case. Last month, a bipartisan report from the Senate Intelligence Committee stated that media stories about Russian attempts to hack into U.S. voting systems had played an important role in raising awareness of the threat, because the government’s own internal warnings were inadequate. Though the report didn’t explicitly mention it, the most detailed media story about those hacking attempts was the one published by The Intercept, based on the NSA document that Winner is accused of leaking.
Unfortunately, defendants in Espionage Act cases generally have not been allowed to assert a public interest defense, in which a defendant can argue that an illegal act, such as disclosing a classified document, should be balanced against the public good it achieved. When Winner’s trial starts, prosecutors will probably object, strenuously, to her lawyers making a point the Senate report seems to readily acknowledge: The document’s publication helped make the country more secure.
If her trial begins as scheduled on October 15, Reality Winner will have been in the Lincolnton jail for nearly a year and a half.