Defense attorney Titus Nichols, who was part of the team of attorneys that represented former NSA contractor Reality Winner, contends the Espionage Act makes it very difficult for a person accused of violating the law to defend themselves.
In an interview with Shadowproof, Nichols also suggested Winner was treated more extraordinarily than other criminal cases. However, generally, he said Winner and the legal defense team were “satisfied with the result” because “the judge accepted the plea deal” and “directed her to be placed” at Federal Medical Center, Carswell in Fort Worth, Texas.
Winner pled guilty to one count of violating the Espionage Act when she disclosed an NSA report that alleged Russian hackers targeted United States voter registration systems in the 2016 election.
Winner was sentenced on August 23 to five years and three months in prison. She was in detention for one year and 83 days prior to the judge accepting the deal. That time served will count toward her sentence, according to Nichols.
Judge James Randal Hall had the authority to impose an even harsher sentence, since the sentencing guidelines say her offense warrants anywhere from 83 to 108 months in prison.
Bobby Christine, who is the U.S. Attorney for the Southern District of Georgia, proclaimed, “The sentence rendered today is the longest received by a defendant for an unauthorized disclosure of national defense information to the media. It appropriately satisfies the need for both punishment and deterrence in light of the nature and seriousness of the offense.”
He repeated a fabrication by the government that Winner said she “hated” America and it was the “worst thing to happen on the planet,” calling her “the quintessential example of an insider threat.”
Up to this point, a local criminal rule in the Southern District of Georgia heavily discouraged Winner’s attorneys from speaking to any journalists. But since the sentencing marked the culmination of the case, Nichols agreed to talk about some of the critical issues surrounding the government’s prosecution.
Nichols became involved in the case because he was on a court-appointed criminal defender list in the U.S. District for the Southern District of Georgia. The federal district is one of a few without a public defender’s office. Winner needed an attorney to represent her at her initial appearance.
He also has a security clearance. “I have one because I’m a Judge Advocate General in the military,” Nichols said. “That’s why I was assigned to represent her, and then from there I just stayed on as her counsel once the magnitude of the case became known.”
“From the very beginning, the entire goal was to prevent the worst possible scenario from happening: her being sentenced to 10 years in prison. And the way the federal sentencing guidelines are setup, if she was convicted, then it would have been very, very likely she would have gotten the full 10 years,” Nichols declared.
The defense team went through all the evidence, filed numerous motions, and participated in several hearings. They fought, but in the end, they had to do “what was in the best interest of the client.”
“Reality believed that this was the best way to mitigate any possible risk,” Nichols shared. “Here there’s the guaranteed 63 months whereas if you go to trial, it’s always a gamble. You can roll and get snake eyes and get 10 years or be found not guilty and walk out free as a jay bird.”
The Espionage Act is a law that was passed in 1917 during World War I to target those who challenged the U.S. military or anyone who supported “enemies” of the U.S. during the war. Especially since President Barack Obama’s administration, the law has been used by the Justice Department to make an example out of whistleblowers and deter others from revealing information that the government has classified, which may be of value to citizens.
The law, as the government applies it, makes it very difficult for the accused to defend themselves, Nichols said.
“Essentially, you’re dealing with a very small universe of cases, and it’s in a small handful of federal courts. And so, you have a different dynamic in federal criminal prosecution than you do in state [court]. I say that having been a former state prosecutor.”
“You have to get permission to discuss a classified document or discuss something that might not itself be classified but when combined with another fact would appear to be classified. So, there’s all these restrictions that you have that you ordinarily wouldn’t have. There’s a gap between the Espionage Act, and it completely protecting someone’s Fourth, Fifth, [or] Sixth Amendment rights in regards to criminal prosecution.”
Nichols continued, “National security law is a very small finite universe of cases. With that, you have to drill deep into the cases to be able to make an argument to the court as to why she should get bond. If you look at the motions that were filed with regard to bond, you can see that we briefed the issue heavily. Because it’s not as simple as, hey, your honor, she’s a good person. She has no criminal record. Give her pretrial bond.”
Leaking information to the press is a nonviolent offense. Prior to Winner, the government had never kept any civilians accused of unauthorized disclosures in detention prior to their trial. Both former CIA officer Jeffrey Sterling and former CIA officer John Kiriakou, who were targets of leak prosecutions, did not go to jail until after they were sentenced.
Additionally, the government claimed they had subject matter experts who concluded Winner’s “unauthorized disclosure caused exceptionally grave harm” to “national security.”
“If you look at the brief of the transcript in the detention hearings, that was explicitly used by the government to justify her being detained,” Nichols contended. “Because their argument is, well, because this caused grave and exceptional damage. If you let her out, she could do it again and thus cause more grave and exceptional damage. Again, that’s the buzzwords the government used.”
“You don’t have to prove the grave exceptional damage. You just have to put someone on the stand who will say, yes, it did cause grave and exceptional damage. And then the issue is, can you give us more detail?”
Prosecutors answer, “That’s classified. That’s highly classified,” Nichols said. “So it’s this circuitous argument that unfortunately that’s the way the Espionage Act is setup.”
At no point in the course of the case did the government have to publicly outline what constituted “exceptionally grave damage.” They even insisted they did not have to prove damage occurred, as they used the allegation to inflict further punishment upon Winner in detention hearings.
Nichols further addressed how difficult it would have been to put on a case at trial. “The Espionage Act is very different than how you would defend other criminal cases.” There are specific rules that you have to follow before you can even look at classified information.
“As far as filing briefs, you have to follow these specific rules in regard to including classified information in your briefs.”
“Under the Espionage Act, we can’t just come to trial and say, hey, we’ve got this piece of paper. It’s classified, and then discuss it before a jury,” Nichols said. “We first have to file a motion explaining what document we’re going to be using, what specific lines, and why we’re using it.”
“The government can then object and say, well, that’s not a good enough reason to disclose that, and then the court has to decide whether he’s going to allow that piece of classified information.”
Prosecutors often insist in Espionage Act cases that they do not have to prove knowledge or intent. When the defendant attempts to discuss in court why they made the disclosure, the government attacks this effort. They will stand before a judge and argue whistleblower arguments should not be allowed to poison the minds of jurors.
“That was a hurdle we dealt with,” Nichols confirmed.
As he described, “Let’s say I’m doing something dangerous. I’m spinning a gun on my finger. It’s dangerous. I know it’s dangerous. The gun goes off and shoots and kills you. My intent was not to kill you. Yes, I was doing something dangerous, spinning something around. But I wouldn’t be charged with murder. I’d be charged with a lesser offense.”
“Whereas here, it does not matter if you intend to damage. The fact that you willingly disclosed, that is the only intent that the laws looks at, which is very unfair because the reason why it’s classified and the reason why it’s prosecuted so heavily [is] because the government says, well, this piece of paper, this book, this picture, this whatever, could cause exceptionally grave injury to the United States of America.”
Nichols added, “The government doesn’t have to necessarily say what the damage was because that could be classified. They could be very vague in saying, well, this is the fallout of you disclosing that photograph. Like I said, it’s very different than, say, a violent crime, where you see the person’s dead.”
“Whether you died, that’s murder. If you were just injured, that’s aggravated assault. The type of damage is what goes into your punishment in typical crimes. Here, it’s just if you willingly disclosed it. Doesn’t matter who you disclosed it to, doesn’t matter why, doesn’t matter if there was ever any damage, you’re still going to be prosecuted the same.”
The government’s conduct in the detention hearings was rather egregious. As Nichols put it, the prosecutors “took a molehill”—some casual and irreverent text messages—and they built a “mountain to depict her as the second coming of Osama bin Laden.”
It effectively planted nefarious views about Reality Winner in the judge’s head and the minds of other judges in the court system. Then, the government fabricated allegations about Winner’s behavior to ensure she was denied bail, which they later apologized for in court.
Winner’s defense team raised this issue during their second detention hearing. “There was no connection to al Qaida. There was no plan to flee the country. There was no scheme to hide money from the government. There were no additional documents,” Nichols said.
“We pointed all that out, and the government admitted those statements panned out to be false. Unfortunately, it didn’t make a difference in regard to bond being denied.”
“In fact, if you get deeper into the weeds, one of the reasons the magistrate court denied her bond the second time was because of threat to the community. Whereas when we appealed that saying, well, the statute doesn’t require analysis of the threat to the community,” the district court judge still denied bond.
Nichols contended, “There’s a reason why you can’t say certain things in front of the jury. Because if you say, hey, this person kicks puppies and burns down orphanages and then you come back and say, my mistake. That was somebody else. You can’t unring that bell.”
“So it’s the same in this situation, where simply by giving a proffer without fully investigating a case you really do have carte blanche to say whatever. The court’s going to rely on the government’s statement, and then months later, after the person’s bond has been denied, you can come back and say, well, that wasn’t accurate.”
The government never accused her of treason in the charged offense. They never specifically suggested she worked with an agent of a foreign power. Nevertheless, in Espionage Act cases, they get away with constantly intimating such details to color the perception of the accused.
Nichols agreed she was treated more extraordinarily than other criminal defendants.
“Typically, you have to bribe or tamper witnesses to get your bond revoked,” Nichols argued. “But here, just from the very beginning, (a) the case was placed under a spotlight (b) you essentially had the full weight and force of the Department of Justice against this one person and so it was totally different than a typical criminal case I might handle or represent somebody, such as a DUI.”
Lincolnton County Jail is not setup to hold detainees for any lengthy period of time. It is in a rural area and had next-to-no experience housing high-profile detainees. Nonetheless, Nichols said every time he went there or called the facility, they allowed him to talk to Winner. There was no interference or games played. “I honestly feel like her being detained there [was] better than other places she could’ve been detained.”
A game is played by the government in these cases when it comes to publicity before trial. They view it as wrong for defense attorneys to say anything to the press. However, when they publish documents or make comments that could poison the jury pool, they see that as perfectly acceptable.
In Reality Winner’s case, prosecutors manipulated a local criminal rule in the Southern District of Georgia that regulates how attorneys speak about cases to the media.
“The court can’t out-and-out tell you not to talk about something because you have a First Amendment right,” Nichols explained. “To get around that, the rule is you can talk about the case. You just can’t discuss the evidence. You can’t talk about the defendant being a good or bad person.”
“Really the only thing you can do is repeat, yes, we have a court date this day. Yes, this was said in court. Beyond that, if you do step out of line and mention [anything else], you could be potentially tampering with the jury pool.”
Nichols added, “The little issue we had at the very first hearing was a lot of media attention started because Deputy Attorney General Rod Rosenstein issued that press release. In that press release, he said [the] defendant had pled and admitted to the crime.” Defense attorneys saw this as violation of the rule.
But after the press release, under the rule, they believed they had a right to rebut the information.
“If information is put out there against our client, we have the ability to respond to that,” Nichols contended. “Had the government not put out that press release, then we would have done the same thing. The issue is we just need to stay in the confines of those rules and not go into her being a good person, her not having criminal history, the weakness or strength of the evidence, things to that effect.”
Additionally, the government published a transcript of Winner’s interrogation with the FBI prior to her detention hearing. This seemed to be another example of double standards in the case.
“Had we gone and given interviews talking about the details of the interview, the government would have been jumping up and down and rushing to the court saying that we’re violating local rules. We’re violating a protection order. We’re tampering with the jury,” Nichols suggested.
To Nichols, this is all a byproduct of the latitude prosecutors have under the Espionage Act. Restrictions and details of the law give an advantage to the government before any defense is ever raised.
Winner’s defense team requested she be incarcerated at Federal Medical Center, Carswell in Fort Worth, Texas. There she can receive some semblance of treatment for bulimia and depression, which has made her incarceration a greater struggle.
If the Bureau of Prisons grants this request and places her at FMC Carswell, it will be somewhat of a silver lining. It will mean she is not in some women’s facility where habitual violent offenders are typically sent.
“That’s one of the things that I am grateful for in today’s sentencing because she will be closer to her family,” Nichols said. “Her mother and her father have just been phenomenal in supporting her and assisting us throughout this entire ordeal.”
What happens if Reality Winner decides to go to the press, like for example the New York Times, and tell them about what she did and why she did it? Would that violate her plea agreement since the government could argue she is talking about classified information? Can they technically claim those thoughts about her motives and intent are sensitive, if they reveal something about so-called sources and methods?
“What it could do is it could expose her to being re-prosecuted for once again disclosing classified information,” Nichols asserted.
“There is no federal statute against disclosing classified information. Like the government classifies everything. I’m pretty sure there is some piece of paper within the Army that has my name, my height, my weight, and it’s stamped classified,” Nichols added. “If that were to be disclosed to Yahoo! News or whatever, it’d be a violation of military rules. It’d probably be a violation of some agreement, but it’s not a crime.”
“The crime is if the information is national defense information, and looking at the case law, because the case law is just so sparse, there is no definitive definition of what is national defense information.”
“Like I said, the document with my height, weight and everything, well because I’m soldier that could be national defense information. Even though, what the hell does my height and weight have to do with national defense information?”
Finally, Winner’s defense team highlighted in their briefs to the court how President Bill Clinton vetoed a bill that would have criminalized the disclosure of classified information.
“The reason that the President of the United States did not want to sign that and make that a crime is because it criminalized First Amendment activity,” Nichols said. It could have also had a chilling effect on journalism.
There is a lot that could be done in the way of reform. Nichols believes Congress needs to step up and pass a law so the Espionage Act is no longer applied to leaks. He also recognizes the risks for those enlisted in the U.S. military.
“If someone were to be accused of the Espionage Act, what proper defense do they have? Like obviously, I’m a soldier, but I know that Espionage Act is not taught in military law school.”
“So if you’re a JAG officer for active duty at Fort Gordon and someone gets arrested for this, who is going to properly defend them? That soldier doesn’t have any money. The military’s not about to go scour country for experts,” Nichols said.
When the Espionage Act was enacted, there was no concept of how technology would evolve. It should not be that someone who believes there is something the public has the right to know is treated like an enemy of the state, like they intended to hurt the government when there is no evidence to support that allegation.