Reality Winner.
Reality Winner. (Credit: Lincoln County, Georgia, Sheriff’s Office)

Federal prosecutors want to present evidence against accused leaker Reality Winner to the presiding judge in secret and without showing their hand to the defense, according to new federal pleadings.

In doing so, prosecutors with the U.S. Justice Department may be running afoul of the 25-year-old former National Security Agency contractor’s right to a fair trial, Winner’s defense team argued in court papers filed Tuesday in federal court in Augusta.

Winner’s lawyers are objecting to what they say is a decision by federal prosecutors to proceed unilaterally and in secret to prosecute Winner. She is charged with espionage, allegedly for leaking a classified document detailing Russian hacking of the nation’s electoral systems to The Intercept, an online news publication.

In June, The Intercept published a story based on that document revealing the degree to which the hackers were able to penetrate America’s voting infrastructure and detailing specific efforts on multiple fronts by Russian intelligence to compromise state election systems across the U.S. in the run-up to the 2016 presidential election. The news outlet also posted a redacted copy of the classified document online within hours of Winner’s arrest. The Intercept editors have said the document was delivered anonymously. They have also said they do not know whether Winner was the source.

Winner’s defense team has also asked the court for an opportunity to challenge any assertion by federal prosecutors that proceeding in secret against Winner while keeping her defense team in the dark is either appropriate or justified. Their objections were filed in response to a spare notice prosecutors filed Aug. 25, saying only that they had submitted a motion ex parte, in camera and under seal for an order to keep secret from the defendant and her counsel unspecified evidence they intend to use in prosecuting Winner.

Winner’s attorneys—including lead counsel Joe Whitley, the former general counsel for the U.S. Department of Homeland Security—already have security clearances appropriate for the classified information at issue in Winner’s prosecution or are in the process of obtaining those clearances. They contend that the federal Classified Information Procedures Act (CIPA) provides a procedural framework for protecting classified information “without running afoul of a defendant’s right to a fair trial.” The statute, defense lawyers insist, does not require ex parte proceedings that would exclude them but gives the presiding judge discretion to grant or deny a request to proceed in secret. “The government’s unilateral, ex parte determination about what is relevant and helpful to the defense is not only inconsistent with the law, but defies logic as well,” they said.

Federal prosecutors have labeled objections by Winner’s lawyers “meritless.” In court pleadings, they argued that the courts “uniformly uphold the practice of proceeding ex parte” where classified information the government seeks to protect is discussed in the motion filed under seal.

Winner’s defense team contends that nothing in the CIPA law entitles the government to submit a secret filing and withhold it from defense counsel without first asking permission from the judge to do so.

Moreover, when defense counsel has obtained security clearances, “The government must justify an ex parte filing is necessary … with a declaration or affidavit executed by an intelligence community official with the requisite classification review authority, explaining the reasons for the classification of information at issue, the potential harm to national security that could result from its disclosure, and why the defense does not have a need to know the information in its unaltered form,” Winner’s defense contends.

In addition, they argued that the U.S. Court of Appeals for the Eleventh Circuit generally frowns on ex parte communications “because they conflict with a fundamental precept of our system of justice: A fair hearing requires a reasonable opportunity to know the claims of the opposing party and to meet them.”

Winner’s lawyers also insist that ex parte proceedings “are not justified in this case.”

In a separate pleading filed Sept. 8, Winner’s defense team argued that the federal Espionage Act does not apply to the disclosure of information that is already in the public domain—regardless of whether it has been disclosed by the government—or to information that the government “has not thought it necessary to keep secret.”

In that pleading, defense lawyers made clear they intend to challenge prosecutors’ claim that the classified document at the heart of the case against Winner harmed national security. According to that pleading, Winner has asked the government to produce records “relating to the government’s assessment of alleged harm to the national security by the alleged disclosure in this case” as well as other similar disclosures that may have been made of nearly identical information.

In making its case, the government must demonstrate that the document Winner is accused of leaking could actually threaten national security and that the information was “closely held.” Citing federal court cases involving the Espionage Act, Winner’s defense contends that, “Where such information is widely circulated and is so generally believed to be true, it may not be closely held.”