Reality Winner Seeks to Use Trump’s Denials of Russian Hacking in Her Defense

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Last week, Reality Winner had a hearing on her bid to get her interview with the FBI thrown out because they didn’t issue her a Miranda warning (Kevin Gosztola covered and discussed it on Democracy Now). Given the precedents on Miranda, I think that bid is unlikely to succeed.

But there is a tack her defense is taking that, as far as I’ve seen, has gotten no notice, one that is far more interesting. Winner is seeking to use Trump’s comments denying that the Russians hacked the election to argue the document she is accused of leaking to The Intercept isn’t actually National Defense Information, the standard the government has to prove to secure an Espionage conviction.

In her discovery requests, Winner asked for three (entirely redacted) categories of documents “reflecting statements made by high-ranking governmental officials regarding information contained in the document,” all of which were denied (see PDF 87).

A discovery appeal submitted in January (but only released on February 13) makes clear that Winner’s defense attorneys are going to argue that the intelligence in the report she is accused of leaking cannot be National Defense Information because the President’s statements would be taken to suggest the intelligence is not true.

However, high-ranking government officials, including the President of the United States, have made statements undermining and/or contradicting that contention. 44 That, is of great import because, if the information in the Document is inaccurate (as the President and other high-ranking officials have said), it cannot be NDI. While the defense may seek to capture some of this information in the public domain, 45 it cannot capture statements made privately by these high-ranking officials.

Bill Leonard, the former head of the federal classification authority, ISOO, who has served as expert witness on two other cases involving Espionage charges, laid out the logic of the argument this way (PDF 102-3)

[T]here are governmental actors, including high-level governmental actors (such as the President of the United States), that have made conflicting and/or contradicting statements in comparison to the Government’s position here. In other words, these high-level governmental officials have made statements undermining the veracity of the information contained in the Document, which would impact whether the Document actually contains “national defense information” because, if inaccurate, the Government’s contention that its disclosure could harm the national security of the United States would be severely undermined. Indeed, the President is the highest level of authority in our classification system and has virtually unrestricted access to information in our intelligence system. He is, therefore, in the best position to know the particulars of any piece of intelligence, including its sensitivity and its veracity. Consequently, records reflecting statements made by high-ranking governmental officials, including and in particular, the President of the United States, relating to the information contained in the Document (including statements contradicting the truth or veracity of the information at issue) are highly relevant and are critical to the determination of whether or not it is closely held and/or whether or not its disclosure would potentially damage the national security.

There are a number of other challenges the government is facing with this case (not least that — as I’ve pointed out — similar information has been leaked to the press without any apparent prosecution arising from it).

But Trump’s self-interested denials are the most interesting. After all, he cannot admit that Russia affected the election, because he has staked so much on the claim that that will lessen his legitimacy (not to mention any risk such an admission exposes him to in the Mueller investigation). As Leonard notes, the entire classification system is built on presidential authority, and if he says something isn’t true, it will seriously undermine any claim a prosecutor can make at trial that Winner leaked true National Defense Information.

Effectively, some prosecutor will be in a position of having to point out what we all know, that the President is a liar. Given Trump’s propensity towards rage-induced firings, I imagine the government would like to avoid this pickle.

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17 replies
  1. Domye West says:

    VERY interesting. Seems like a legit defense- “The documents I leaked don’t meet your national security requirements because the Pres said they are not true!” I’m a moron, so I’m not sure exactly how this will work, but it would be nice for the Govt to have to publicly say “Ignore the Pres”.

  2. Trip says:

    The entire Reality Winner case seems so hokey to me. First, you have the name; which, come on, in the context of a reality show president, could it be any weirder? Then, what she leaked didn’t provide bullet-proof evidence of Russian responsibility. On top of that, you have the Intercept pulling rookie moves, easily exposing her, that helped to get her arrested. Now, she is using a defense that what she leaked isn’t true, in a sense, based on Trump’s statements. It’s like she has been scripted by a C author, her name, her character from central casting, in a role to clear dear leader. Theater of the absurd.

    And now I feel dirty, having walked in Alex Jones’ putrid conspiracy shoes.

    • JD12 says:

      The whistleblower playbook is excessive and sometimes dishonest. There are no whistleblower protections, they must protect themselves like Snowden.

      Investigators try to coerce a confession out of them by saying there’s no trouble, it’s not a big deal, everyone would have done the same thing. Then they lock them up and cut off their communications. They smear them in the media since they can’t defend themselves. The defense teams are denied evidence.

      They’re portrayed as liars and crooks trying to harm the country, when the info almost always benefits the public. Sadly, sometimes it’s done to people who turn out innocent.

  5. Rugger9 says:

    While I agree that the defense should work on fairness principles, it may be rendered moot by “classifying” the information even though it is false, under a “sources and methods” rule. Misinformation as a tactic for getting into your adversaries’ heads is a time-honored tradition and this is a standard spook toolkit item.

    After all, the courts have ruled that the police can lie to suspects in order to get confessions (and in many cases have lied on the stand as well, with little or no consequences).

  6. Bay State Librul says:

    I’ll put $10 on Reality Winner, in the third, at Suffolk Downs.

    A daily double.

  7. wayoutwest says:

    These defense lawyers seem to be setting RW up for a big fall with their diversions and nonsense. I think she is charged with illeaglly releasing classified documents which is not in question, she admitted doing it. What was in the documents is another question but she thought their ‘truth’ would harm Trump.

    If RW continued to admit her guilt she could have used temporary insanity brought on by TDS as the cause and the judge might have shown some mercy. After this dog and pony show the judge may be upset and vengeful so her only hope of avoiding a long prison stay may be a plea for a pardon from Trump so she can get proper psyco treatment for her mental disorder.

    • bmaz says:

      Absolute bullshit. Criminal defense attorneys are ethically required to zealously attack the government’s  case in any and every manner possible. Just because some of those are not going to work does not obviate the requirement of filing the motions and making the record. Judges understand this.

    • emptywheel says:

      This Trump thing might work, and having Leonard as an expert is a huge asset (he helped to get Thomas Drake’s case turned into a misdemeanor). Whatever she did, the fact that so much info on the hack and leaks has come out, via both official and unofficial channels, makes both her no-bail treatment and her prosecution really problematic.

      Leonard’s declaration is also interesting for his explanation of why he works on these cases: because the classification system is broken.

      • Peterr says:

        This.

        The Leonard quote you highlighted goes along with other items that point to the heart of the classification system is that it is supposed to be logical and systematic. For example, you shouldn’t treat something as TS/SCI in 8 docs and as merely Secret in three others. Similarly, you shouldn’t give one person who reveals TS/SCI information a slap on the wrist and another 15 years at Leavenworth.

        The brokenness of the classification system is that the treatment of information is not handled evenly, proclamations of logic and systematic policies notwithstanding. One agency may evaluate something to be highly sensitive, while another may see it as less sensitive. Similarly, individual actors may be more inclined to bend the rules for a bureaucratic friend and to throw up walls to block a bureaucratic adversary.

        But the key for RW is that, beyond the above issues that affect every administration, the Trump administration acts and speaks in stunningly illogical ways. State Department career staff with expertise are excluded from policy discussions and debates, and important offices are simply left unfilled. The Commerce Department can apparently get tariffs enacted without input from State, Defense, or Treasury. Jared is appointed to run anything, it seems. And then there are WH briefings from the press secretary of the moment . . .

        I think Leonard’s statement here (cited above) is spot on:

        these high-level governmental officials have made statements undermining the veracity of the information contained in the Document, which would impact whether the Document actually contains “national defense information” because, if inaccurate, the Government’s contention that its disclosure could harm the national security of the United States would be severely undermined.

        Imagine the poor US Attorney, sending this memo up the chain of command for a decision . . .

        MEMORANDUM

        To: Jeff Sessions, US Attorney General

        From: Poor US Attorney in charge of this case

        Re: Request for approval of prosecutorial approach to the Reality Winner case

        I am at a crossroads in preparing for our prosecution of Reality Winner, and require a decision from my superiors as to how to proceed. Attorneys for the defense have put forward the argument that because POTUS has denied that the contents of what was leaked are true, by definition Winner cannot be held to have compromised National Defense Information. To defeat this argument, I must defend the NDI information as true, which will inevitably lead to a significant debate inside and outside the courtroom about the statements of POTUS. To put not-too-fine a point on it, my arguments (if I pursue this path) will place me in the delicate position of forcefully arguing against the public statements of my ultimate superior in the executive branch.

        Alternatively, we can enter into plea discussions with Ms. Winner’s attorneys. That would avoid having to argue against POTUS over the veracity of the information that was leaked. On the other hand, this would put me in a similarly delicate position of having to argue against the very strong “throw the book at leakers” statements from POTUS.

        In short, I am damned if I do and damned if I don’t.

        I would appreciate any guidance from you and/or White House officials on how to proceed, and will delay making any motions or taking other actions on this case until I have your reply in hand.

  8. earlofhuntingdon says:

    It’s a pickle that could cause Jeff Sessions no end of trouble from the Big House.  Jeff wouldn’t be much of a Roy Cohn if he let one of his prosecutors document that Donald J. Trump lied about such an important issue.  As you say, Jeff would also be handing Bob Mueller part of his case on a platter.  That would please Mr. Trump about as much as being told his favorite restaurant chain would no longer sell Big Macs.

  9. SpaceLifeForm says:

    J. William “Bill” Leonard certainly would be useful here given his having to endure over 5 years of Bush/Cheney classification machinations.

    https://fas.org/sgp/isoo/index.html

    [Note no 2017 report]

    http://www.fairness.com/resources/one?resource_id=58992

    Bush claims oversight exemption too: The White House says the president’s own order on classified data does not apply to his office or the vice president’s.

    https://www.archives.gov/press/press-releases/2007/nr07-144.html

    http://www.fairness.com/resources/relation?relation_id=15696

    June 2007: Waxman and J. William Leonard, director of the Information Security Oversight Office, have argued that the order clearly applies to all executive branch agencies, including the offices of the vice president and the president.

    http://historycoalition.org/2007/12/14/vps-office-is-exempt-from-executive-order-on-classified-information/

    The Office of the Vice President is not an “agency” for purposes of Executive Order (EO) 12958 on security classification. Therefore its classification and declassification activity no longer need be reported to the Information Security Oversight Office (ISOO), the Justice Department finally informed ISOO Director Bill Leonard in a newly disclosed letter.

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