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Reality Winner’s Defense Severely Hindered As Judge Rejects Nearly All Subpoenas

A federal judge denied forty of the forty-one requests for subpoenas, which the defense for Reality Winner submitted.

Winner is a former NSA contractor accused of mailing a classified document on alleged Russian hacking of voter registration systems to The Intercept. She was charged with violating the Espionage Act and is currently in detention at the Lincolnton County Jail in Georgia, where she awaits trial.

The defense sought subpoenas for information from the CIA, Defense Department, National Archives Records Administration, National Security Council, the Office of the Director of National Intelligence, Homeland Security Department, and White House. They wanted records from the states, which DHS claimed had their voting registration systems allegedly hacked by Russians.

However, prosecutors argued the subpoenas to “numerous federal agencies for a wide array of generically described material” would amount to an “unchecked fishing expedition.” This would be an “oppressive and frivolous waste of government resources.”

Judge Brian Epps essentially bought all of the arguments of prosecutors. On April 27, he rejected forty subpoenas as “overly broad.” Epps contended they fall short of the “specificity requirement.”

“None of the requests specify particular books, papers, documents, data, or other objects to be offered into evidence at trial,” Epps contended. “Instead, the requests are scattershot, dragnet attempts to discover evidence not presently known to exist.”

Only one subpoena for a spreadsheet from an unidentified agency was approved.

“I am outraged, once again, by the ruling from the court,” Billie Winner-Davis declared. “By denying the defense the access to information and evidence they need to defend my daughter Reality, it appears to me that the court is cutting off their ability to develop and mount any kind of defense.”

“Over and over, I have seen rulings like this coming out of this court, and it saddens me that she is not being treated fairly by our court system. I once had faith in our government and our judicial system but having to live through this has completely changed my views.”

She added, “I am so afraid for my daughter and what is happening to her. I hope others are seeing it too.”

John Kiriakou, a former CIA officer who was the target of a leak prosecution and was sentenced to 30 months in prison, told Shadowproof he was disgusted that Winner is being denied the ability to defend herself.

“Federal prosecutors frequently appeal to judges to keep information in national security cases classified even when it isn’t and when it is necessary for a defendant’s case,” Kiriakou said. “All 75 motions for declassification in my case were denied.”

“My attorney said it best: ‘We just don’t have a defense now.’ And that’s exactly what the Justice Department wants. It wants to deny Reality Winner the ability to defend herself.”

Kiriakou accepted a plea deal because of the many roadblocks created by prosecutors and the court.

Winner’s defense hoped to subpoena information from cybersecurity companies and organizations, like CrowdStrike, FireEye, F-Secure Corporation, and TrendMicro. But the judge rejected these subpoena requests.

To help the defense make its case, J. William Leonard, former director of the Information Security Oversight Office (ISOO), took the stand during an April 23 hearing for three hours.

Leonard previously provided expert advice or testimony in the case against NSA whistleblower Thomas Drake. He also worked for the Defense Department and developed policies to prevent leaks, ensure leaks were investigated, and curtail the overclassification of information. He reviewed information sought from government agencies through subpoenas and found such records are crucial to determine whether the “intelligence reporting” in the document Winner allegedly disclosed is “national defense information.”

For Winner to be convicted of violating the Espionage Act, the prosecution is supposed to prove she released “national defense information.”

Leonard wrote in a declaration that the government’s theory around “national defense information” in the document depends upon whether the information is, in fact, accurate.

He noted high-government officials in President Donald Trump’s administration have made statements “undermining the veracity of the information” she allegedly released. If the information is inaccurate, the government’s contention that “its disclosure could harm the national security of the United States would be severely undermined.”

The “national defense information” should be “closely held,” especially if it is top secret information. But if the government disclosed this information to state governments or others in organizations that do not have security clearances, then the information cannot be “closely held.” That would undermine the prosecution’s case against Winner.

Apparently, the hearing in which Leonard testified became frustrating as Epps maintained the defense had not addressed what the subpoenas were for specifically. A presentation lasting several hours was provided to the court, which should have covered specificity as well as why the requested records were relevant to the defense. But the judge still denied nearly all the subpoena requests

Epps mentioned in the conclusion that the prosecution “agreed” to expand discovery obligations to “accomplish key objectives” Winner had in “serving subpoenas on the designated federal agencies.” It is unclear whether this will help the defense obtain any of the records it wanted.

The trial for Reality Winner is scheduled for October 15. Winner has been jailed without bail for 331 days.

Howard Zinn. Photo by mjb on Flickr.
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Kevin Gosztola

Kevin Gosztola

Kevin Gosztola is managing editor of Shadowproof Press. He also produces and co-hosts the weekly podcast, "Unauthorized Disclosure."