Say a well-placed contractor for the National Security Agency exposes a massive surveillance program by leaking hundreds of thousands of classified government documents to the press - but then doesn't flee the country to avoid prosecution. What would his criminal trial be like? For a special installment of our Legally Speaking interview series, we convened a panel of experts to imagine what might happen if such a case were brought to trial - and also to role-play their way through the process. In the following edited excerpt, host and UC Hastings law professor Evan Lee
asks former U.S. Attorney Joseph P. Russoniello
about prosecuting our not-so-imagined protagonist - a young man named "Edward Snowman" - after information has been leaked to New York Times reporter Charlie Savage
(who also participated in the discussion). For our scenario, Abbe D. Lowell
of Chadbourne & Parke in Washington, D.C., takes on the role of Snowman's defense attorney. (Other panelists appearing in the full videotaped discussion include Michael Hayden,
retired Air Force general and former director of the CIA and NSA; Georgetown University constitutional law professor David D. Cole
; and Harvard law professor and former federal judge Nancy Gertner.
LEE: Joe Russoniello, you are for our scenario the recently appointed U.S. Attorney for the Eastern District of Virginia, a district in which Edward Snowman's former contracting firm happens to do business. Do you want the lead on this prosecution, or is it going to be a nightmare?
: Oh no, I want the lead. I would do anything to be the chief prosecutor.
I think the juries in this district would be much more sympathetic and receptive to the idea that government acts for the protection of the public. The [9/11] bombing of the Pentagon is still fresh in the minds of many people, and so they know there's a real enemy out there that can benefit from the disclosure of some of this stuff.
Clearly, just on the basis of what little we know at this point, ... the person has furnished to an unauthorized person information that relates to communicated intelligence, which would be harmful to the interest of the United States or [has] been designated by an agency of the United States government for limited dissemination and distribution.
LEE: Is that the so-called espionage count?
The [section 798 count] would be the particular offense that would apply there. (See 18 U.S.C. § 798.) There are others as well, theft of government property ...
LEE: Is that a slam dunk, the theft of government property?
LEE: Is the espionage count a slam dunk?
It's pretty close to the same sort of thing, but in the guise of the confidentiality of the information. So while it's not just a government property that can be identified, it's a government property of high importance to national security. So the penalties will be greater.
The mere retention of the documents, or the failure to turn over the information that you have to an authorized person, are both violations of another section of the Espionage Act. (See 18 U.S.C. § 793.)
LEE: I noticed that one word has not come through your lips in particular, and that's treason. Now a lot of people think that somebody in Snowman's position is guilty of treason. Giving aid and comfort to the enemy. Why hasn't this been part of your monologue?
Well, not everybody who's a leaker is a traitor. That's communications with a foreign government. But look, I don't think it's important for us to label Snowman a traitor. I think it's enough to label him a despicable human being who has acted out of a sort of self-righteousness and personal interest. He somehow thinks that he's more important than our system of laws. And it's important for us, in bringing a prosecution against him, that he gets the message that he's not. And as a general deterrent, it's important that everybody else gets the message that they're not.
LEE: Abbe Lowell, you end up with the representation of Edward Snowman. What's that initial client consultation going to sound like?
If it's going to be taking place in some sort of an incarceration facility, the first goal is going to be to get him out, if that's humanly possible. The ability of somebody to defend him or herself when he or she is incarcerated in a case like this, with all of its dimensions, is very, very difficult.
The second topic is, I want to know very quickly what else he has. That's valuable in any number of ways, but one of the ways is that it enhances his position to negotiate his way out of jail, and it enhances his position to determine whether he can negotiate his way out of the jam.
If there's an indictment and we get into the period of discovery - the exchange of information between the government and the defendant and vice versa - one is going to be able to ask the government to provide quite a lot of information, including quite a lot of classified information that will show the source of the material, where it was distributed, who else had access to it, who else might have had the ability to talk to Charlie Savage and others.
The badminton bird in this game is really Charlie Savage. Nobody wants to call Charlie Savage as his own witness. I want Charlie Savage to be on the other side of the prosecution's case.
LEE: But why is that?
I'm a prosecutor, a cynic, I view him as an aider and abettor. He's an accomplice ...
LEE: An unindicted co-conspirator?
Unindicted co-conspirator. I want him to be called by the defense. We'll do everything we can to be able to demonstrate that Snowman is the source by narrowing it down to he's the only person that had all of this information at the time that it was disclosed.
To view the full video visit our Legally Speaking page.