The federal judge presiding over the case of accused National Security Agency leaker Reality Winner has come down on prosecutors’ side in a dispute over rules of evidence, which defense attorneys have said could jeopardize her right to a fair trial.
In a ruling Thursday, U.S. Magistrate Judge Brian Epps said defense attorneys cannot talk about classified information in open court, even if it has already been published in the news media. Epps granted prosecutors’ motion for a protective order designed to keep an alleged leaker from leaking further, and to force those defending her to tread lightly, lest they leak by accident.
Epps’ order says prosecutors only want defense attorneys to comply with the Classified Information Procedures Act, which means being “hypervigilant.” From his order:
Defendant fears there is great peril lurking …
Defendant fears her counsel may, for example, forget information within the government’s discovery is classified and inadvertently cite a published article discussing the same information. Defense counsel’s generalized fears of accidentally mishandling classified information is no reason for the Court to relax otherwise strict and well-settled procedures in cases involving classified information.
According to the protective order, an attorney who violates the terms could be subject to a contempt of court charge or “referral for prosecution.”
In arguing against the order, Winner’s defense team said it could prevent her from reviewing evidence in the case, including classified information. That, they said, would amount to a violation of the 25-year-old former Air Force linguist’s Sixth Amendment right to confer with her attorneys.
But prosecutors countered that she will be given access to the records she is entitled to see. Her attorneys just have to ask the court first.
On that point, the judge directed prosecutors to revisit the issue of whether Winner will be given access to all of the classified evidence in the case, and whether her defense attorneys must disclose the identities of any experts they hire to look at the top-secret evidence.
Winner’s trial is set for Oct. 23.
Winner, who lived in Augusta and worked for the National Security Agency at Fort Gordon, is accused of mailing a top-secret report to an online news outlet detailing the Russian government’s attempts to hack into U.S. elections systems last year. With her arrest in June, she became the first person prosecuted for leaking by the Trump administration.
Attorney General Jeff Sessions announced Friday that the Justice Department under Trump is now pursuing three times as many leak investigations as it did under Obama, according to a report in The New York Times.