DOJ’s Telling Argument against Sterling’s Selective Prosecution Claim: Eric Holder’s Priorities

CIA

Did DOJ just admit it was one of Eric Holder’s priorities to prosecute whistleblowers but not a priority to prosecute insiders who leak classified information?

As this post noted, back in February, Jeffrey Sterling moved to have his conviction overturned on lack of evidence. But that’s not the only active challenge Sterling has made to his prosecution: the defense renewed an effort to have the conviction overturned because government witness(es) violated the court’s protection order, and the defense has sustained its challenge — renewed just before the trial started, though the filing remains classified — that he was selectively prosecuted because he sued the CIA.

At the same time the government responded to the lack of evidence claim (see this post for an explanation) it also responded to the selective prosecution claim. The filing provides a glimpse of what Sterling argued back in January, which appears to consist of:

  • The claim that someone referred to Person A leaked classified information, but was not prosecuted
  • The discussion in the Senate Intelligence Committee Torture Report of CIA deliberately leaking information to the press to spin torture in a good light

The government explained away not prosecuting Person A by pointing to the Garrity rule prohibiting prosecuting someone using information provided under threat of termination (this is the same difficulty that caused such a delay in the prosecution of the the Blackwater perpetrators of the Nisour Square massacre).  Because Person A leaked information but admitted to it while still employed by the CIA, her non-prosecution is unlike Sterling’s, DOJ argues.

The government argued against the use of evidence in the Torture Report to argue selective prosecution because, “the Senate report’s allegations of disclosures of classified information by other CIA personnel, the issues raised, and the manner in which they are addressed, [sic] in the report necessarily arise in the legislative context, not a prosecutorial context, far removed from the circumstances of the defendant’s case.” In other words, in spite of the fact that the Senate Intelligence Committee laid out clear evidence that CIA deliberately leaked information about torture, it’s different (and the CIA considers it a highly charged document anyway), so Sterling can’t use it to claim he was selectively prosecuted.

More interesting, however, is how the government cites a Supreme Court ruling on selective prosecution to show that the Attorney General gets broad discretion on what crimes to prosecute; it argues that discretion is all the more true for Espionage prosecutions.

“The Attorney General and United States Attorneys retain ‘broad discretion’ to enforce the Nation’s criminal laws.” Armstrong, 517 U.S. at 464. Prosecutorial decisions may be based, among other legitimate reasons, on “such factors as strength of the case, the prosecution’s general deterrence value, the government’s enforcement priorities, and the case’s relationship to the Government’s overall enforcement plan.” Id. at 465. The overriding prosecutorial consideration is the availability of compelling admissible evidence to prove the defendant’s guilt beyond a reasonable doubt.

This is critically important in prosecutions under 18 U.S.C. § 793, which are necessarily complex prosecutions occurring within a very narrow band of the country’s population. At bottom, the universe of people who have the opportunity to commit violations of the Espionage Act is comparatively small. Further, these investigations are difficult, time-consuming, and involve a substantial commitment of government resources. Accordingly, prosecutions in this area are rare and difficult.3 The Fourth Circuit recognizes that “prosecutorial priorities for addressing specific types of illegal conduct” is a legitimate factor to distinguish the treatment of defendants in similar contexts. United States v. Olvis, 97 F.3d 739, 744 (4th Cir. 1996).

The government strongly suggests that they prosecuted Sterling because something about his case met the prosecutorial priorities of Eric Holder.

Which is notable, because they go on to argue that Sterling cannot point to any similarly situated people who didn’t get prosecuted.

Moreover, contrary to his blanket proclamations, he has made no showing of other individuals who, in fact, are “similarly situated” to him—i.e., other individuals who communicated national defense information related to a closely held, extremely sensitive counter-proliferation operation to individuals not entitled to receive it, with reason to believe that that doing so had the potential to do damage to the United States or to benefit foreign countries.

The government submitted this the day before announcing David Petraeus’ ridiculously lenient plea deal for leaking information he knew to be highly classified to someone not entitled to receive it. And before yesterday’s Washington Post report that General James Cartwright — who allegedly did precisely what Sterling did, leak details of an effort to thwart Iran’s nuclear arms development to a New York Times reporter — will likely not be prosecuted because it would require admitting US involvement in StuxNet and angering the Israelis.

Federal investigators suspect that retired Marine Gen. James E. “Hoss” Cartwright leaked to a New York Times reporter details about a highly classified operation to hobble Iran’s nuclear enrichment capability through cyber-sabotage — an effort not acknowledged by Israel or the United States.

Prosecutors will have to overcome significant national security and diplomatic concerns if they want to move forward, including pitting the Obama administration against Israel if that ally were opposed to any information about the cyber-operation being revealed in court.

The United States could move forward with the case against Israel’s ­wishes, but such a move might further harm relations between two countries, which are already frayed because of a disagreement over how best to prevent Iran from obtaining nuclear weapons.

Administration officials also fear that any revelations could complicate the current negotiations with Iran over its nuclear program.

Indeed, the White House appears to have thwarted the Cartwright investigation by refusing to release materials on the program to be used in the prosecution.

In discussions with the office of the White House counsel, then led by Kathryn Ruemmler, prosecutors sought to determine whether the White House would be willing to declassify material important to the case. Ruemmler was unwilling to provide the documentation, citing security concerns, including those relating to sources­ and methods, said a person familiar with the matter.

 

And, as happened with the leaks cited in the Torture Report, the White House had permitted Cartwright to speak to the press.

Cartwright, who retired in 2011, had White House authorization to speak with reporters, according to people familiar with the matter. Craig might try to put the White House’s relationship with reporters and the use of authorized leaks on display, creating a potentially embarrassing distraction for the administration.

If the allegations about Cartwright are true, it would be hard to find someone whose case was more similar to Sterling’s (though evidence Sterling could use to argue the case would not be available until DOJ told Cartwright they won’t charge him, and only then would become available if Cartwright decided to share it broadly).

Ultimately, though, the government could still argue that Sterling met Holder’s priorities for prosecution and Cartwright did not.

Which would be another way of saying if Holder wants to prosecute whistleblowers and not high level leakers with the goods to embarrass the President, it could simply be explained as legitimate prosecutorial priority.

About Marcy Wheeler

Investigative journalist Marcy Wheeler writes the "Right to Know" column for ExposeFacts. She is best known for providing in-depth analysis of legal documents related to "war on terrorism" programs and civil liberties. Wheeler blogs at emptywheel.net and publishes at outlets including the Guardian, Salon and the Progressive. She is the author of Anatomy of Deceit: How the Bush Administration Used the Media to Sell the Iraq War and Out a Spy. Wheeler won the 2009 Hillman Award for blog journalism.