Government Argues Against the “Everyone Does It” Defense in Sterling Leak Prosecution

Steve Aftergood at Secrecy News reports that the government has filed a motion in the Sterling leak prosecution urging the court to “bar the defendant [Sterling] from presenting any evidence, argument or comments . . . that everybody leaks classified information” (emphasis added).  The government’s argument (with citations omitted) is:

The “everybody does it” defense is irrelevant and inadmissable under Rule 403.  . . . Specifically, the caselaw forecloses the defendant from presenting any evidence or making any argument regarding the following: 1.  Evidence, arguments or comments that everyone at the CIA or on Capitol Hill leaks information, classified or otherwise, or that “everybody does it”; 2.  Evidence, arguments or comments regarding specific instances or examples of the leaking of classified information, whether prosecuted or not; and 3.  Evidence, arguments or comments relating to the other chapters of State of War. Such evidence is inadmissible under Rule 403.  Not only is such evidence not probative on the issue of whether the defendant committed the charged crimes, but the introduction of such evidence or arguments would force mini-trials over the similarities and differences between the present prosecution and every other specific instance of leaked classified information.  Fights over the classification levels of the information, the potential damage caused to the United States, and a host of other issues would consume and overwhelm the real issues in this case.

This legal argument may well be right (I am no expert), and I do think Sterling should be prosecuted if he leaked Risen classified information, thereby violating the law and his oath.  But as I have argued before, in light of the promiscuous, self-serving, and unpunished leaking throughout the executive branch of all manner of classified information, it sure looks bad.