Calling the FBI’s interrogation of accused media leaker Reality Winner a violation of her constitutional rights, Winner’s defense team is asking a federal judge to throw out the statement that led to her arrest.
On Tuesday, the team will square off with the lawyers from the Justice Department and the U.S. Attorney’s Office in Augusta at a suppression hearing before Magistrate Judge Brian Epps. The hearing centers on whether Winner’s lengthy interrogation by the FBI at her Augusta home on June 3, 2017, was voluntary or instead a “custodial interrogation” that required agents to advise Winner of her right to counsel and to remain silent.
Federal prosecutors have acknowledged that the FBI did not deliver a Miranda warning, but they have argued that Winner voluntarily talked as nearly a dozen agents swarmed her home.
Winner, 26, has been jailed without bond since she was arrested at the close of the June 3 interview. She is charged with espionage for allegedly leaking a single classified document to a news organization.
Winner was arrested shortly after The Intercept published a redacted version of the document, along with a story reporting that Russian hackers penetrated the nation’s election infrastructure.
Federal prosecutors have argued that Winner—a U.S. Air Force veteran who worked for a National Security Agency contractor in Augusta—told the FBI she was the culprit.
Winner’s lawyers are not conceding anything. They are expected to argue Tuesday that the circumstances of Winner’s interview belies the FBI’s contention that it was voluntary and that she could have ended it at any time.
Whether Winner should have been given a Miranda warning turns on whether she believed she was in custody or was free to go at any time.
Winner’s lead counsel, Joe Whitley of Atlanta’s Baker Donelson, declined to comment. But defense pleadings contend that multiple actions by the agents clearly signaled Winner was in custody. Among them:
- FBI agents informed Winner they had search warrants for her residence, her car and her person, suggesting she was not free to leave until she was frisked.
- Agents took Winner’s car keys and cellphone as she arrived home from the grocery store.
- Winner was never advised that she was not in custody. When she asked if she was going to be arrested, agents hedged, according to defense lawyers and a transcript of the conversation, telling her they did not know.
- Winner was not searched until after her arrest—another indication that she was not free to leave.
- Agents remained at Winner’s side as she put away groceries, including perishables that had been sitting in her car in the summer heat, when they began their inquiry.
- Agents also accompanied Winner as she leashed her dog and secured her cat.
- At one point, Winner also felt compelled to ask permission to go to the bathroom, asking agents, “How’s that going to work?” according to a transcript of her interview.
- After asking if there was a place they could speak privately, agents directed Winner to a small, unfurnished room she said she didn’t like.
- During the interview, two agents blocked the entrance and questioned her as Winner faced them with her back against the wall.
- At the end of the interrogation, she was arrested rather than released.
- Agents also made what the defense described as “accusatory statements … that the evidence against her was ‘very, very, very compelling’ and that she was ‘the most likely candidate by far and away.’” They also told her she was “the prime suspect” in the possible mishandling of classified information.
A response from prosecutors was likely filed under a broad blanket of confidentiality issued by Epps last year.
But some of their arguments are summarized in defense pleadings. Prosecutors emphasized that the FBI not only advised Winner that answering their questions was voluntary but that Winner “did not believe she was in any type of custody” because she had made casual comments about using her phone and teaching yoga the following day. The defense dismissed the argument as “reading Ms. Winner’s mind.”
Prosecutors also argued Winner never asked to end the interrogation or leave.
Winner’s defense also accused prosecutors of making unsupported assertions about the circumstances surrounding the search. Prosecutors claimed agents’ firearms were not visible, insisted that agents did not block Winner’s path when they questioned her and contended the search warrant of her person was complete when she surrendered her phone.
The defense also said federal prosecutors “spent pages” focusing on the “calm conversational tones” and “gentle, non-accusatory language” agents allegedly used in interrogating Winner.
“Separate and apart from the fact that federal law enforcement is known to utilize this tactic in an effort to elicit incriminating responses, these ‘soft’ factors do not convert an otherwise custodial interrogation into one that does not require Miranda warnings, one defense pleading said.