Jeffrey Sterling Moves for Acquittal Based on Government’s Expansive Interpretation of Spying

Courtroom sketch by Debra Van Poolen (http://www.debvanpoolen.com/)

Courtroom sketch by Debra Van Poolen (http://www.debvanpoolen.com/)

At emptywheel, I just finished a long post questioning why the government didn’t want Jeffrey Sterling to raise questions about CIA tampering with evidence, particularly given that the government claims never to have had two key pieces of evidence in the case: the letter leaked to James Risen, and the trip report Merlin did upon his return from Vienna.

At almost the same time, lawyers for Jeffrey Sterling moved for acquittal on all charges. As part of that, they made an argument very similar to the one I made: Jeffrey Sterling was convicted on three charges relating to the possession of a copy of a letter that appeared in Risen’s State of War that not only did the FBI admit they never found, but which Sterling had no possible way of possessing.

Mr. Sterling could not possibly have  possessed the letter in the form published in State of War. Merlin wrote the letter to provide to the Iranians during his trip to Vienna. Both he and Mr. S. testified that the only final version of that letter resided on Merlin’s computer, which the government never searched. Merlin testified that he did not bring a copy of the letter back from Vienna. The only evidence that Mr. Sterling ever had a copy of the letter in the form provided to Mr. Risen is Merlin’s testimony on cross-examination that he provided a copy of it to Mr. Sterling during a meeting he had alone with him two weeks before leaving for Vienna. However, the cable traffic, which was corroborated by Mr. S., established that there was no such meeting. The cables demonstrated that the last time Merlin met alone with Mr. Sterling before the Vienna trip was two months prior to Merlin’s departure, at which time the final version of the letter did not exist. Therefore, Merlin could not have given the letter to Mr. Sterling as he testified. And certainly, if Mr. Sterling never had the letter, he could not have given it to Mr. Risen.

That Sterling couldn’t have possessed this letter — much less passed it onto Risen — is just a small part of a larger, more important argument, however.

The defense argues that the government invented a new interpretation of the Espionage Act to be able to try Sterling for leaking to Risen in Virginia, a location where past history shows the courts are especially favorable to the CIA’s quirks. The problem, the defense argues, is that it’s not enough for a book to appear in a federal district to claiming spying happened there.

The government’s case for venue under § 793 and § 641 is certainly novel. Mr. Sterling is unaware of any other prosecution under the Espionage Act, even one involving aiding and abetting or conspiracy theories of liability, where venue lay in a district merely because a book containing classified information was distributed and sold there. The Fourth Circuit has cautioned that venue must be “narrowly construed.” Jefferson, 674 F.3d at 365. Permitting venue in this District would result in an expansive, rather than narrow, construction of venue for criminal statutes that do not contain broad venue provisions.

The defense gets into far more detail regarding each charge. But a big part of the discussion involves the role of Risen — as an innocent person whom Sterling caused to publish secrets. Effectively, the government succeeded in arguing that by doing his job — chasing down important stories — Risen performed the critical acts central to Espionage.

That’s troubling all by itself. But it should also present problems for venue, because there’s no evidence Risen did any of the things that led to the publication of his book in Virginia.

Counts One and Two allege that Mr. Sterling caused the communication of national defense information to the public through the publication of Mr. Risen’s book. The conduit of this information is Mr. Risen. As the jury instruction on causation under § 793 set forth, [t]o establish that the defendant caused an act to be done, the government must prove beyond a reasonable doubt: First, that another person performed the acts that constituted the crime of unauthorized communication of national defense information or committed an indispensable element of that crime; and Second, that the defendant willfully caused these acts, even though he did not personally commit these acts.

Jury Instructions, p. 36. Under these instructions, the acts by Mr. Risen (caused by Mr. Sterling) of the possession or transmission of national defense information must have occurred in the Eastern District of Virginia. What is relevant to this inquiry is the location of Mr. Risen when he undertook his acts in publishing the book, not where the book was disseminated by others or where the effects of the book were felt after it was published.

There is no evidence in the record of where Mr. Risen was located when he received national defense information or where he was located when he provided this information to others, such as his editor or publisher for publication in the book, much less that any of this occurred in the Eastern District of Virginia. The evidence showed that Mr. Risen’s office was in the District of Columbia and that his residence was in Maryland. The sole evidence regarding the location of any event pertaining to the book was that the book, after it was published, was shipped from New Jersey to Virginia for distribution in the Eastern District of Virginia. That is evidence of the ultimate effects of conduct by Mr. Risen in the Eastern District of Virginia, not evidence of conduct by Mr. Risen in the Eastern District of Virginia. This is a wholly insufficient basis for venue.

In effect, the government has succeeded in convicting someone for causing a journalist to do journalism, and they’ve done so based on a theory that the effects of the crime — the publication of a book — are the same as committing a crime itself.

In a speech today, Attorney General Eric Holder called this prosecution a model for “how the Justice Department can proceed” with leak cases. That suggests he and his prosecutors plan to use this theory — that by causing journalists to do their jobs, thereby having the effect of publication in CIA’s neighborhood — in future leak cases.

Which really amounts to criminalization of journalism, even if it avoids subpoenaing the reporter in question.

The motion — and two other pending motions for acquittal, one on selective prosecution and one because Condi Rice and another witness answered questions that violated Judge Brinkema’s protection order — probably won’t work; it probably serves only as a preliminary for an appeal. But it lays out a key argument about the stakes for this case, and for journalism, going forward.

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.