William Welch & DOJ’s Dishonest Intelligence Witness Against Jeff Sterling

In a comment to Marcy’s The Narratology of Leaking: Risen and Sterling post yesterday, MadDog related this nugget regarding the Sterling case from a Steve Aftergood article in Privacy News:

I know EW’s post’s focus was on Sterling’s defense team’s strategy, but I’d be remiss in not commenting on this tidbit from Steven Aftergood’s post:

“…In addition, a former intelligence official now tells prosecutors that portions of his testimony before a grand jury concerning certain conversations with Mr. Risen about Mr. Sterling were “a mistake on his part.” As a result, prosecutors said (8 page PDF), Mr. Risen himself is “the only source for the information the government seeks to present to the jury.”…”

I wondered just what this paragraph meant. Did it mean, as I assumed, that one of the prosecution’s key witnesses, a former intelligence official, had in fact recanted the former intelligence official’s grand jury testimony?

Here is just what the prosecution blithely said on the matter from page 5 of their supplement (8 page PDF):

“…Fifth, the testimony of the “former intelligence official” referenced in the Court’s Opinion has changed. The former official will now only say that on one occasion, Mr. Risen spoke with him about the defendant and stated that the defendant had complained about not being sufficiently recognized for his role in Classified Program No. 1 and in his recruitment of a human asset relating to Classified Program No. 1, and that on a separate occasion, Mr. Risen asked him generic questions about whether the CIA would engage in general activity similar to Classified Program No. 1. This former official, however, cannot say that Mr. Risen linked the second conversation with the defendant, although both conversations occurred within several months of each other. The former official termed his grand jury testimony, which linked the two conversations together, as a mistake on his part. In addition, the former official further modified his testimony to say that although Mr. Risen had acknowledged visiting the defendant in his hometown, Mr. Risen’s trip to see the defendant was not the main purpose of his travel, but rather a side trip.

The testimony of this former official had been cited by the Court as providing “exactly what the government seeks to obtain from its subpoena [to Mr. Risen]: an admission that Sterling was Risen’s source for the classified information in Chapter Nine.” Memorandum Opinion (Dkt No.148) at 24. The former official’s testimony will not now provide such a direct admission, further underscoring the government’s contention that for the reasons discuss in its Motion, Mr. Risen is the only source for the information the government seeks to present to the jury…”

So, that got me thinking, what is the status of the “former intelligence officer” in question? Is he still on the witness list? Who is it, and why is he “former”? Has he been charged with false statements to a government officer under 18 USC 1001? Has he been charged with perjury under 18 USC 1623? Is there a criminal investigation regarding the duplicity underway? What is being done?

Because, giving the government’s prosecutors the benefit of the doubt that they did not misrepresent or puff the “former intelligence officer’s” statements and testimony to start with, which is a pretty sizable grant for a William Welch run show, then it seems pretty clear that the “former intelligence official” is now saying that he either testified to things he did not, in fact know at the time, or he embellished/lied to the grand jury and the attending prosecutors.

The problem with the above is, the “former intelligence official is not entitled to any protection or benefit of the doubt for a “recantation” under 18 USC 1963(d). Here is the relevant portion on this subject from the US Attorney’s Office Criminal Resource Manual:

Recantation was never a defense to perjury in the common law, and is not a complete defense in a Section 1621 prosecution. United States v. Norris, 300 U.S. 564, 573-74 (1937). Recantation in such cases is relevant only as to whether the defendant intended to make a willfully false statement. Id.

Section 1623(d), however, makes recantation a bar to a perjury prosecution in certain cases that meet either three or four requirements. First, the recantation must be made “in the same continuous court or grand jury proceeding” in which the original false declaration was made. Second, the recantation must unambiguously admit that the prior statement was false. A request to clarify or supplement testimony is not enough to satisfy the statutory requirement. Finally, recantation bars prosecution only if the admission occurs at a time when the false declaration has “not substantially affected the proceedings, and it has not become manifest that such falsity has been or will be exposed.” United States v. Fornaro, 894 F.2d 508, 511 (2d Cir. 1990); United States v. Scivola, 766 F.2d 37, 45 (1st Cir. 1985); United States v. Moore, 613 F.2d 1029, 1039 (D.C. Cir. 1979), cert. denied, 446 U.S. 954 (1980). Thus, if the witness has knowledge that the false testimony “has been or will be exposed,” no effective recantation can thereafter be made. United States v. Denison, 663 F.2d 611, 615 (5th Cir. 1981). Similarly, if the grand jury has acted in reliance upon the false testimony, no recantation is possible. The United States Court of Appeals for the Eighth Circuit, however, viewed the last two requirements in the disjunctive when it allowed a defendant an opportunity to show either that the proceedings were not substantially affected or that the falsity will be exposed. United States v. Smith, 35 F.3d 344, 347 (8th Cir. 1994). Because recantation is a jurisdictional bar to prosecution, Fed.R.Crim.P. 12(b)(2) requires that it be shown before trial. United States v. Fornaro, 894 F.2d 508, 511 (2d Cir. 1990).

There are two problems here. First, there is no evidence from the government’s description in its motion that the “former intelligence officer” made a clear admission his/her testimony was false or did anything other than hemming, hawing and modifying. Secondly, and most importantly, it is simply impossible to say that the false testimony of the “former intelligence official” “has not substantially affected the proceedings”. Remember, even the prosecutors, in their motion, stated unequivocally:

The testimony of this former official had been cited by the Court as providing “exactly what the government seeks to obtain from its subpoena [to Mr. Risen]: an admission that Sterling was Risen’s source for the classified information in Chapter Nine.”

It is pretty amazing that here is the Obama DOJ prosecution team, persecuting yet another clearcut whistleblower, whom they ought to be protecting, and doing so with such inconsistent and malignant gimmicks. Welch and DOJ have accused Mr. Sterling of egregious crimes of dishonesty and betrayal, and put up a dishonest unidentified “former intelligence officer” in front of the grand jury to get the indictment. And now Welch and the DOJ not only want to continue their wrongheaded prosecution, but want to invade the sanctity of the press, Jim Risen, which has already been noted by Judge Leonie Brinkema, to bail their sorry behinds out of their predicament.

So, what is going on with the investigation and/or prosecution of this vaunted “former intelligence officer”? Because, save for there being some meaningful activity in that regard, it just looks like another case of a contrived, manipulated and contorted prosecution by a team led by a man, William Welch, famous for just that.

Oh, and as a late arriving parting shot, it turns out that William Welch, who was rather unceremoniously removed from his post at DOJ’s Public Integrity Section (PIN) in the aftermath of the Ted Stevens disaster and court ordered investigation into his conduct, as a news release, pointed out by Shane Harris, about a public official being sentenced in Massachusetts, contains this little plum in its last paragraph:

The case was investigated by the FBI, with assistance from the Massachusetts Inspector General’s Office and the Lowell Police Department. It is being prosecuted by Senior Litigation Counsel William M. Welch II and Kevin Driscoll of the Criminal Division’s Public Integrity Section, with assistance from the U.S. Attorney’s Office, Public Corruption Unit.

What were once vices in the Department of Justice are now just unending bad habits under the Administration of Barack Obama and Eric Holder. Nothing has changed.

18 replies
  1. earlofhuntingdon says:

    I heard on the grapevine that Eric Holder changed his name a few years ago; it used to be Tom Hagen. He doesn’t seem to have changed much else.

  2. rugger9 says:

    On a philosophical level, as well as de facto, those in government service are frequently given benefits of the doubt with respect to their testimony. If it conflicts in a he-said, she-said kind of way, the gov’t witness generally wins the argument at hand.

    Now, if I’m Sterling’s team, the fact that this witness is changing the story is a golden opportunity to throw out the case with prejudice. I’m not clear what information the “witness” provided, and how key it actually was to the indictment, but at this point it may be a critical piece. So, we are left with a couple of questions (assuming high criticality): first, what evidence contradicted the GJ testimony to warrant this “retraction” and where did it come from [presuming it isn’t Risen, since it isn’t worth calling him in that scenario just to blow a case]? It would seem to me that whatever prompted this epiphany would be out there in evidence regardless of Risen’s input, otherwise why “recant” if no one would know the actual facts?

    Second, Sterling’s team can certainly prosecute a defamation suit due to the changed testimony, so is there a way the USG can indemnify the witness for that risk? There is no way anyone can argue in court with a straight face that perjury is an allowed government activity. Plus, it’s a “former” government agent, not “current” and the protections are less.

    Third, is it possible that this is a case designed solely to open up the precedent to breach the First Amendment wall, regardless of the actual outcome WRT Sterling? Given Welch’s history, and the presence of burrowed Bushies at DOJ this may indeed be the object for future use against PNAC enemies. The risk is that Judge Brinkema comes down loud and clear (like Judge Walker did for the Prop 8 trial) on the side of what the law and Constitution actually says.

    Whatever the real answer might be (and I’m sure I missed some good Q’s to ask) the DOJ is pulling out all of the stops to get Risen to testify as a matter of principle when it isn’t clear his testimony would change the case, especially given this “recantation”.

    The witness needs the Martha Stewart treatment, but I’m pretty sure he/she is paid for the role being played here, the Russians did it a lot during the CCCP days. Plan A didn’t work, on to Plan B.

    Fourth Q: can’t the DOJ prosecute anybody without screwing up the case or picking on the wrong targets [i.e. the foreclosure scandal]? Ye gods.

    • bmaz says:

      First – Yes there are several good motions for Sterling here; dismissal is but one of them

      Second – No defamation for conduct within the confines of a court proceeding; it is perjury, false statements or some sort of court sanction or nothing.

      Third – While I think they would love to breach the press wall on national security cases, maybe even a broader spectrum, I still think the main motivation was to intimidate leakers.

      Fourth – No

  3. orionATL says:

    holy jesus!

    willie welch strikes –

    yet again.

    when IS doj gonna give this guy an office without a window, a telephone, or internet connection?

  4. rugger9 says:


    On item 2: if the gov’t fails to prosecute, can Sterling? I was assuming that the DOJ wouldn’t pursue the criminal side, maybe getting ahead of myself there.

    On item 3: if they prosecute and fail repeatedly, paying as they go like for Hatfill, is that as effective a deterrent? Or, maybe we need to use Ms. Bunnatine as our example.

  5. MadDog says:

    A couple of procedural questions here bmaz:

    Getting beyond the initial good observations such as the defense arguing for dismissal, can I assume that the defense knows the name of the former intelligence official?

    Presuming no dismissal, can the defense subpoena the former intelligence official to testify for the defense?

    By that I mean can the defense get the former intelligence official’s original grand jury testimony and use it to impeach him on the stand?

  6. bmaz says:


    I would hope the defense knows the name; but in this day and age it is theoretically possible they do not officially know the name via verified disclosure by the government; which just sucks to even contemplate.

    There will be no dismissal, although that, if argued and set up properly by the defense, would be the appropriate remedy. But, courts today just will not do it, especially on anything touching national security like this.

    Almost no question but what the defense has the GJ transcripts; the only question is whether all the witnesses have been identified, and, again, the answer is likely yes they have. As to the second portion of the question, yes it absolutely could be used at trial, but no that “former intelligence officer” witness will, almost certainly, never, ever, be called at a trial. And therein lies a fairly big rub for the government.

  7. MadDog says:

    @bmaz: I can’t wait to see what the judge’s response is to the prosecution’s Motion to Reconsider.

    A good bet is that there are more fireworks to come.

  8. orionATL says:

    for elvin hayes see here:


    my emotional involvement?

    elvin hayes and wes unseld, washington bullets, nba champs, 1978.

    d.c. don’t get much sports pride other than this and joe gibbs three super-bowls champs.

    why do i say joe gibbs three super-bowl champs?


    three different quarterbacks,

    none great,

    three championships.

    great coaching

    and great team play.

    that was the roman way.

  9. bmaz says:

    @Bob Schacht:

    Here there were substantial proceedings affected by the witnesses’ offending testimony. As even the prosecutors (as the quote in the post from their motion evidences) admit, the court cited and relied on the testimony of the “former intelligence officer” in substantive motion hearings regarding Risen, and the facts surrounding Sterling’s interaction with Risen are central and critical to the case.

    As the quote in the post from the USAO Criminal Resource Manual indicates, there is no right to recantation under 18 USC 1623 if the offending testimony has substantially affected proceedings in the case. It has here. It had not yet in Rove.

  10. Bob Schacht says:

    Thanks for the explanation.

    IIRC, at the time, Rove had peek-a-boo privileges on PatFitz’s communications, so I think he was able to go back and “correct” his testimony a number of times before it got to the “recantation” stage?

    Bob in AZ

  11. rugger9 says:

    @Bob Schacht:
    Indeed he did, and it’s a tactic other Bushies used when they had interactions under oath. That is, when they weren’t droning on about “I can’t recall”. As ex-USN, that kind of “I dunno” stuff really wouldn’t matter in an Article 32 hearing, if you were responsible for it, you either knew it or should have known it.

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