Although former State Department contractor Stephen Jin-Woo Kim will not go to trial before next year on charges of leaking classified information to Fox News reporter James Rosen, the pre-trial maneuvering by the prosecution and the defense is accelerating.
Prosecutors notified the court last week that their theories regarding the defendant’s motive for allegedly leaking classified information would not be presented at trial. Meanwhile, the defense appears to be engaged in its own search for other potential leak suspects.
The prosecution had previously said it “planned to rely on three motive theories at trial.” But when the Court ruled that the defense was entitled to discovery of classified information regarding those theories, the government reconsidered its position.
“Because of the Intelligence Community equities implicated by the Court’s ruling, the United States hereby gives notice that it has elected not to rely on these motive theories at trial, thereby eliminating the basis for the defendant’s classified discovery demands related to motive…,” prosecutors said in an October 18 filing.
In another filing this week, the parties described a novel procedure they agreed upon by which the government would perform a search for a series of telephone numbers supplied by the defense– apparently in pursuit of alternate suspects or other exculpatory information.
“Defense counsel will provide … a list of telephone numbers, or telphone area codes and exchanges” and an independent team of reviewers “will compare the defendant’s list with the two days of government commercial telephone records… If any number on the defendant’s list overlaps with any number in the government commercial telephone records, the filter team will inform counsel for both parties…. If that comparison yields any hits, then the parties will discuss how to proceed,” the October 21 joint notice said.
In a Report on Review of News Media Policies last July, the Department of Justice had expressed its first hint of ambivalence about leak prosecutions, and had said that it would consider administrative penalties as an alternative to criminal trials:
“The Department will work with others in the Administration to explore ways in which the intelligence agencies themselves, in the first instance, can address information leaks internally through administrative means, such as the withdrawal of security clearances and imposition of other sanctions,” the Report said.
But no one should infer that there will be any discernable change in current or pending criminal trials. “The DOJ Report does not purport to take a litigation position in this legal proceeding or any other,” prosecutors said in a September 30 filing in the Kim case.
In leak prosecutions, the punitive phase of the proceeding need not await the actual conviction of the defendant; it starts, in effect, right away.
“This has been a huge blow for me and for my entire family,” said Stephen Kim in an interview with the Korean publication The Hankyoreh on October 11. “I had to give up a job that I had liked. It also destroyed my marriage. My family had to spend all of the money they had saved up and even sell their house to pay my legal fees. I hardly have any remaining assets. Being brought to court and knowing that people believe I did something I didn’t actually do is a hurtful and painful experience. You cannot imagine what it’s like to be charged with a crime you didn’t commit,” he said.
Yesterday New York Times reporter James Risen sought a stay of a Fourth Circuit appeals court ruling that would require him to testify regarding a confidential source in the leak trial of former CIA official Jeffrey Sterling. He indicated his intent to petition the Supreme Court for relief. “The Government said that it takes no position on whether a stay should be granted.”
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