Motions Hearing Today in U.S. v. Kiriakou

This morning, U.S. District Judge Leonie Brinkema denied ex-CIA officer John Kiriakou’s request for more detail about the government’s allegations against him, while preserving his ability to revisit issues related to that request later; rejected his claim of selective prosecution out of hand; and took his third and final request--- to have the case’s key charges thrown out on constitutional grounds---under advisement.  (Background can be found here, here, here, and here.) The hearing kicked off with a discussion of classified discovery--- including personnel records pertaining to "Covert Officer A," whose identity Kiriakou allegedly had disclosed to a journalist.  Prosecutor Mark Schneider told the court that these and other documents had been turned over to the defense recently.  It was clear from their colloquy, however, that defense counsel had not yet reviewed the latest tranche of discovery materials, and would need sufficient time to do so.  That reminded the court of the case’s looming November trial date.  Judge Brinkema thus pressed the parties to move quickly in reviewing classified discovery, and in filing any necessary motions under the Classified Information Procedures Act---the statute that facilitates the use of secret information in criminal cases.    Judge Brinkema noted a possible connection between the personnel records and the defense’s motion for a bill of particulars---its request for a more detailed written explication of the government’s claims.  Such a motion can only be granted if the indictment fails to give adequate notice to the defendant.  And, the court said, the indictment here is more than sufficient, especially because relevant discovery about the government’s allegations has been produced to Kiriakou’s team.  Defense lawyer Robert Trout told the court he was agnostic about the new documents’ clarifying effect.  He said he hoped, but did not know, that personnel records and other documents would reveal the specific “affirmative measures” that the government allegedly had taken in order to conceal the covert officer’s identity, and that the government would need to prove at trial, in order to convict Kiriakou of violating the Intelligence Identities Protection Act.  But because he wasn’t sure about this, the lawyer pressed on with the defense’s request for a bill of particulars.  Trout also noted that the personnel records would speak only to the Identities Act count, but not to the other subject of his particulars motion: the alleged “injury” to the United States, which Kiriakou’s alleged violation of the Espionage Act could have brought about. Speaking for the prosecution, Schneider countered that Kiriakou already could thumb through the legislative history of the Identities Act and there read about the sorts of “affirmative measures” commonly taken to conceal undercover officers’ identities.  Regarding “injury,” Schneider said, the question for trial was not the kind of harm that Kiriakou’s alleged disclosures had wrought, but whether he had reason to believe that such disclosures could be used so as to injure the United States.  And in any case, the prosecutor continued, the government already has turned over “injury”-relevant documents to the defense---including a record of an FBI interview with Kiriakou, and some non-disclosure agreements he signed before starting work with the CIA. For her part, Judge Brinkema seemed to think the government’s recent disclosures might provide Kiriakou with more detail about the government’s theories, and thus prevent him from being unfairly surprised come trial-time.  Or at least that’s what the court’s bench ruling implied: she denied the motion for a bill of particulars, while preserving Kiriakou’s opportunity to revisit any issues related to possible surprise at a later time.  Judge Brinkema also cited the government’s obvious interest in revealing as much as possible, as quickly as possible, to Kiriakou.  “It does the government no good to hold back on its thunder,” she said. The court moved then to the defendants’ dispositive motions.  Judge Brinkema reserved her swiftest, most “Rocket Docket-y” stuff for Kiriakou’s motion to dismiss for vindictive or selective prosecution: she denied that motion without argument from either party.  The court explained that the defense papers revealed no basis for concluding that Kiriakou had been singled out for criminal charges because he had criticized government interrogation policies.  And, she observed, Kiriakou’s is hardly the first leak prosecution brought by the Obama Administration. That left the defense’s motion to dismiss the charges brought under the Identities and Espionage Acts, on Fifth Amendment vagueness and First Amendment overbreadth grounds.  The government shouldn’t punish individuals for engaging in First Amendment activity, Trout argued, but the Identities Act does just that, by allowing conviction without a showing of the defense’s intention to harm the United States.  Regarding the Espionage Act, the lawyer acknowledged some unfavorable precedent, but emphasized that no past cases have dealt with the problem of rampant over-classification. Neither argument seemed to sway Judge Brinkema.  An average person, she said, probably wouldn’t view the First Amendment as conferring any right to reveal the identity of an undercover intelligence officer. Despite this skepticism, the court said it would not rule now but later, in a written opinion. The hearing finished as it began, with a chat about housekeeping and secret documents.  Trout emphasized the difficulty of the defendant’s position regarding classified discovery.  Hypothetically, he said, let’s say the discovery contains some relevant but still classified information, that just happened to be well known to the media.  How can we talk to journalists about that, in developing our defense?  The journalists aren’t cleared, Trout explained, so the defense obviously cannot reveal the information to them; and certainly the journalists won’t want to dish national security secrets to defense lawyers, either.  The court didn’t resolve the lawyer's  dilemma.  But she did refer to past cases involving known-by-all-yet-still-not-officially-declassified secrets.  Defendants found work-arounds in those cases, she said, and Trout should try to follow suit here. Wrapping up, the court asked the parties to agree on a schedule for CIPA filings and motions, again citing the brisk litigation pace.  The case is set for trial in November, just after the Thanksgiving holiday.