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Reality Winner’s Defense Appeals Magistrate Judge’s Decision To Reject Subpoenas

The defense for former NSA contractor Reality Winner appealed a federal magistrate judge’s decision, where 40 out of 41 subpoenas were rejected.

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.

Her attorneys 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 would also like records from the states, which DHS claimed had their voting registration systems allegedly hacked by Russians.

On April 27, Judge Brian Epps argued the forty subpoenas were “overly broad” and fell short of the “specificity requirement.”

The appeal contends the subpoenas are “essential” to Winner’s “ability to prepare and present a defense” because “a core element of the offense in this case is that the information allegedly disclosed was not already known or disseminated outside the federal government in an unclassified environment.”

“Defendant Winner is facing a soon-pending trial with a number of limitations, all of which she has raised with the court, on her ability to prepare her defense in a manner consistent with due process,” Winner’s defense additionally argued. “The defendant simply lacks the ability to conduct its own traditional pretrial investigation when all counsel are bound by the strict rules that accompany security clearances and the [Classified Information Procedures Act] process.”

It also maintains the “subpoenaed entities indisputably possess” relevant records and accuses Epps of applying the wrong legal standard when rejecting the subpoenas.

Winner’s defense sought records under what is known as Rule 17(c).

According to the appeal, Rule 17(c) “reflects the command of the Sixth Amendment that the full power and processes of the courts are available to defendants in criminal cases to help them defend against the charges brought by the government.”

The defense must prove documents are relevant and include evidence and that the defense is unable to prepare for trial without forcing production of the records in advance of a trial. Subpoenas have to be “made in good faith” and cannot be an attempt at a “fishing expedition.”

Winner’s attorneys claim Epps overlooked the fact that the requests were “specifically-worded and anchored to particular documents and/or subject matters.” He did not recognize the defense made a case during an April 23 hearing that should have satisfied the “specificity requirement.”

“Defense counsel, at the outset of the hearing, asked the court to consider allowing the defendant to address whatever concerns the magistrate judge had with the proposed subpoenas—in the spirit of efficiently addressing any problems identified by the corut and expeditiously preparing these subpoenas for service” according to the appeal. “But the magistrate judge nonetheless rejected the subpoenas without addressing the opportunity to amend.”

Subscribing to the prosecution’s arguments against granting the subpoenas, Epps declared, “None of the requests specify particular books, papers, documents, data, or other objects to be offered into evidence at trial. 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.

Winner’s defense would like to subpoena information from cybersecurity companies and organizations, like CrowdStrike, FireEye, F-Secure Corporation, and TrendMicro.

J. William Leonard, former director of the Information Security Oversight Office (ISOO), testified as an expert witness during the April 23 hearing for three hours and made the case that the records sought by subpoena were crucial to determine whether the “intelligence reporting” in the document Winner allegedly disclosed is “national defense information.”

Under the Espionage Act, the government is supposed to prove not only that the information was properly classified but that it related to the “national defense” of the United States in order to win a conviction.

There is also the issue of whether the information she allegedly released was accurate or not. Officials in President Donald Trump’s administration have disputed alleged acts by Russians to interfere in the 2016 presidential election. The report cannot impact the “national security” of the United States if the contents are inaccurate.

Billie Winner-Davis, Winner’s mother, was outraged at the court’s ruling and suggested the court was “cutting off” her daughter’s ability to mount a viable 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.”

“I am so afraid for my daughter and what is happening to her. I hope others are seeing it too,” Winner-Davis stated.

The trial for Reality Winner is scheduled for October 15. Winner has been jailed without bail for 345 days, which is extraordinary when compared to previous leak prosecutions.

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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."