This article first appeared in the St. Louis Beacon, Jan. 21, 2011 - Federal prosecutors took the unusual and controversial step of subpoenaing Jeffrey Sterling's lawyer to appear before a grand jury investigating the St. Louis man who has been charged with espionage for leaking secrets to the press, the Beacon has learned.
Mark Zaid, a Washington, D.C., lawyer who handles national security cases, was subpoenaed to appear before a grand jury to discuss events surrounding his representation of Sterling in a race discrimination case he filed against the CIA, say sources with knowledge of the case.
Prosecutors questioned Zaid about Sterling's motive in allegedly leaking classified information about an intelligence operation in Iran to James Risen of The New York Times, a source said. The indictment alleges that Sterling leaked the information to retaliate against the CIA for its refusal to settle his race discrimination claim and to approve a memoir he was writing.
The prosecutors' questions focused on motive and dealt with the circumstances of Sterling's case and contacts Zaid had with third parties, a source said. Zaid had tried to negotiate a settlement of Sterling's issues with the CIA. In addition, prosecutors questioned Zaid about actions he had taken on Sterling's behalf that led to testimony to a congressional committee and that promoted his racial discrimination case through the media, a source said.
Zaid's testimony was entirely about his contacts with third parties on Sterling's behalf and was outside of the attorney-client privilege, a source said.
Jesselyn Radack, a lawyer with the Government Accountability Project, strongly criticized the prosecutors and questioned whether the prosecutors' line of questioning was entirely outside of attorney-client privilege. "This is just another example of government overkill," she said in a telephone interview. "As a legal ethicist, I am quite troubled by this."
Bar's ethics rules for prosecutors
Radack said the government's actions violated Rule 3.8 of the ABA's Model Rules of Professional Conduct, which sets out ethical rules for prosecutors. That rule states that prosecutors shall "not subpoena a lawyer in a grand jury or other criminal proceeding to present evidence about a past or present client unless the prosecutor reasonably believes" three things - that the information "is not protected from disclosure by any applicable privilege," the evidence is "essential" to the prosecution and "there is no other feasible alternative to obtain the information."
Radack said "everyone knew" that Sterling was the leaker of the information about the CIA operation involving Iran's nuclear program. For that reason prosecutors could not claim they had no feasible alternative for obtaining the information or that the information was essential to the prosecution.
Radack also raised questions about the involvement of Justice Department prosecutor William Welch II in the Sterling prosecution, noting that Welch is himself still under investigation for his prosecutorial tactics in a case against the late Sen. Ted Stevens of Alaska. Stevens' conviction had to be dismissed because Welch and other prosecutors withheld information that might have helped Stevens.
"At best there is an appearance problem" in Welch handling this case, she said.
A spokesman for the Justice Department said, "I can't comment beyond what is contained in court documents or provided in court hearings."
The government's focus on Sterling's allegedly retaliatory motives drew criticism in the days after Sterling was arrested on Jan. 13. Kathleen Clark of Washington University Law School said she feared that the government was focusing on motive to demonize Sterling and cut him off from potential legal allies such as the press and whistleblower groups. She said she saw the government taking a similar approach toward Julian Assange, founder of WikiLeaks.
Several years ago, Clark invited Sterling, a 1992 graduate of Washington University Law School, to speak to her class about his race discrimination case against the CIA. Sterling claimed around 2000 that a CIA employee had said he couldn't be successful handling covert operatives because he was big and black. A court threw out Sterling's case based on the "state's secrets" doctrine that applies where a case cannot be tried without revealing important government secrets.
Critics of the government's tactics in the espionage case against Sterling point to an especially strong position that the government took in a motion to keep Sterling locked up before trial. Welch maintained that it was even more "pernicious" for a whistleblower to leak information to the press than for a CIA spy to sell secrets to an enemy. The reason, Welch said, was that all potential enemies are alerted to secrets published in the press while only one enemy learns about secrets sold by spies.
The prosecutors are "going way beyond discrediting them," Radack said. "We have arrested him and said he is more dangerous than a spy. ... That is a ridiculous argument. That doesn't pass the laugh test for most people. Seriously, think about the scenario of giving information to Iran about intelligence identities or nuclear defense or design information or troop movements. That is a hell of a lot more harmful."
Justice Department rules on subpoenas
Justice Department rules for prosecutors set a high bar for subpoenas of defense lawyers, news reporters or telephone records of reporters. Yet, in the Sterling case prosecutors apparently took all three actions. In addition to subpoenaing Zaid, it twice subpoenaed Risen and, judging from the indictment, obtained detailed phone and email records of both men.
Risen, who had refused to comment on the Sterling prosecution, has said he did not testify to the grand jury. U.S. District Judge Louise Brinkema quashed Risen's subpoena. One reason, apparently, was that the government knew by then that Sterling was the leaker.
The Justice Department's manual for prosecutors cautions against subpoenaing lawyers and journalists. If a subpoena of a lawyer is sought, it "must first be authorized by the assistant attorney general for the criminal division" unless the case meets one of four exceptions. None of the exceptions appears relevant to the Sterling case.
The Justice Department spokesperson said she could not comment on whether Welch had sought approval from the head of the criminal division before subpoenaing Zaid. Zaid also declined to comment.
The manual also states that "all reasonable attempts shall be made to obtain the information from alternative sources before issuing the subpoena to the attorney, unless such efforts would compromise the investigation or case. ...The subpoena must not be used to obtain peripheral or speculative information."
Radack questioned whether the information that the government collected on Sterling's motivation is relevant to the 10-count indictment. "Intent to get back at the CIA is neither here nor there" when it comes to proving the case, she said.
One question in the Sterling case is how far the attorney-client privilege extends. The Model rules say that in general, "A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent."
Conversations that the lawyer has with third parties are generally outside of the privilege, lawyers say. But Radack said she would consider any settlement negotiations and contacts that she made for a client with the press or a congressional committee to be covered by the privilege.
The Sterling indictment does not name the reporter or country involved. But the facts correspond to a chapter in Risen's 2006 book on the CIA. That chapter described the CIA's bungled attempt to give Iran inaccurate information about how to detonate a nuclear weapon. A Russian scientist who had defected was given the faulty information. The mistake in the triggering design was so obvious that the scientist told the Iranians about it, according to Risen's account. Sterling apparently thought that the result was that the Iranians obtained valuable information for its program.
William H. Freivogel is director of the School of Journalism at Southern Illinois University Carbondale and a professor at the Paul Simon Public Policy Institute.