The Mark Zaid Materials from the Jeffrey Sterling Trial

Because he just formed a new whistleblower group with John Napier Tye, there as been renewed interest in allegations an FBI Agent made during the Jeffrey Sterling case about attorney Mark Zaid. But there was actually a second detail regarding Zaid released just after the trial that has not been publicly reported: Zaid was interviewed by the FBI, twice, and was even interviewed before Sterling himself was.

I asked Zaid whether he was obligated to do the FBI interviews on Twitter but got no response. I think it’s possible FBI asked to interview him as much because the Senate Intelligence Committee was refusing to cooperate in the investigation as anything else; at the time, FBI considered SSCI staffer Bill Duhnke a more likely suspect than Sterling (and it’s not clear they ever ruled him out).

Let me be clear: I’m posting these materials to make the full context of them accessible. Zaid has not explained these, but he has promised repeatedly there is an explanation for them. As noted, there may be a perfectly logical explanation that has as much to do with Senate privileges as it does with attorney-client.

In any case, these materials are just what was directly related to the criminal case. The criminal investigation actually interacted with events in Sterling’s EEO lawsuit — which is what Zaid was primarily representing Sterling on in 2003 — in even more interesting ways I may return to.

Special Agent Ashley Hunt’s accusations

The following accusation came in prosecutor Eric Olshan’s redirect of Ashley Hunt, the FBI witness in the trial, after Sterling’s lawyers had demonstrated that the investigation was narrowly focused on Sterling without questioning some of the other possible witnesses in the case.

Q. When you initiated the investigation, I believe you testified it was in April of 2003?

A. That’s correct.

Q. At the time when you initiated your investigation concerning unauthorized disclosure of classified information to James Risen, did you learn any information regarding Mark Zaid and Mr. Krieger that, that directed your investigation?

A. I did.

MR. MAC MAHON: Your Honor, objection. That door was not opened as to Mr. Sterling’s prior lawyers.

MR. OLSHAN: Your Honor, this is about why —

THE COURT: Again, the scope of the investigation, what was done and not done, was clearly part of the cross. I’m going to allow it, excuse me, on redirect; and if there needs to be recross on that, you’ll be allowed to. Go ahead.

MR. MAC MAHON: Thank you, Your Honor.

BY MR. OLSHAN: Q. What did you learn at the outset of your investigation about information from Mr. Krieger and Zaid that helped you direct your investigation and focus it?

A. When I opened my investigation on April 8, 2003, my investigation was based on a report I received from the CIA dated April 7, 2003. In that report, the CIA provided information about the fact —

MR. MAC MAHON: Your Honor, that’s hearsay.

THE COURT: Wait.

MR. OLSHAN: Your Honor, this is not for the truth. It’s why she took the actions.

THE COURT: It explains why she is acting, takes the investigative tacks that she does, so I’m going to overrule the objection. It’s not hearsay.

BY MR. OLSHAN: Q. You may continue, Special Agent Hunt.

A. The CIA advised that on February 24, 2003, it was contacted by Mark Zaid and Roy Krieger. They told the CIA on February 24 that a client of theirs had contacted them on February 21, 2003, and that that client, that unnamed client at the time voiced his concerns about an operation that was nuclear in nature, and he threatened to go to the media.

Q. Did you later learn who that client was from Mr. Zaid and Mr. Krieger in the course of your investigation?

A. I did.

Q. Did those facts help you focus the direction of your investigation?

A. They did.

Q. And who did you learn was the client of Mr. Krieger and Mr. Zaid?

A. Jeffrey Sterling.

On recross, Sterling lawyer Edward McMahon worked to undercut the revelation by having Hunt describe how, when she wrote up a memo on the case on April 12, 2003, she believed it unlikely he was the leaker.

Q. Okay. And you had written about Mr. Sterling in 2003, hadn’t you, the same time you’re telling in answer to Mr. Olshan’s questions that you were hearing some hearsay about Mr. Sterling’s lawyers?

A. I’m sorry, what’s the question?

Q. You said you had heard some hearsay that Mr. Sterling’s lawyers were talking about him at the CIA, correct?

A. What I said is that his attorneys went to the CIA on February 24. At that time, they did not name Jeffrey Sterling.

Q. All right. But on April 12 of 2003, you wrote a memo about Mr. Sterling, and you said that it was unlikely that it was Mr. Sterling who was the leak, correct?

A. If I wrote that at that time, then that was based on the information I had at that time.

Q. Right. You said that it’s unlikely that someone who has already attempted to settle an EEO lawsuit for a few hundred thousand dollars would choose to attack and enrage the organization from which he seeks but has not yet received a settlement. That’s your writing, isn’t it?

A. I don’t know. You haven’t shown me the document.

Q. And you also in the same document dismiss your concerns about Mr. Zaid and Krieger, correct? You don’t remember that?

A. I don’t know. It was 12 years ago.

Q. And in the last 12 years, you still haven’t come up with any proof that Mr. Sterling ever talked to Mr. Risen about Classified Program No. 1 or Merlin, right?

A. Correct.

Thus far, the timeline looks like this:

February 21: Alleged contact between Sterling and Zaid (not stated whether this is phone call or email, which would show up in call records available with a relevance standard)

February 24: Alleged call from Zaid and his partner warning that one of their clients would leak

April 7: CIA referral includes their claim about Zaid call

April 8: Hunt opens investigation

April 12: Hunt writes memo dismissing likelihood that Sterling is leaker

The FBI Interview Dates

Now consider the dates of the 2003 FBI 302s included in these two CIPA letters (the names with the first initial last name are CIA witnesses; it’s unclear whether that’s true of the entirely redacted names).

April 12: Redacted name

April 12: Robert J. E

April 12: Bob S

April 13: Redacted name

April 13: Redacted name

April 14: Bill H (almost certainly Bill Harlow, CIA’s then spox)

April 18: Mark Zaid (three page 302)

April 28: Bill H (again, almost certain Harlow)

May 7: Redacted name

May 9: Redacted name

June 19: Sterling

June 26: Bob S (Sterling’s supervisor)

July 18: Redacted name

July 21: Thomas H

August 1: David C

August 13: Redacted name

August 14: Diane F

That is, the memo where Hunt said she didn’t think Sterling was the leaker was written either before she had done any interviews, or after she had done just the first CIA ones (including with Sterling’s boss, who definitely blamed Sterling). The first round of interviews appear to be primarily or all CIA witnesses.

And the next interview — at least among those that Sterling’s defense thought they might use at trial — was Zaid. Zaid’s interview, in fact, was months before Sterling’s. The second letter shows a second Zaid interview on September 2, 2010.

To emphasize: Sterling’s lawyers requested these FBI interviews be available for trial, not the prosecution. It’s unclear whether they did that because the interviews would have helped them, or because (as was the case with virtually all the other witnesses) they thought they might need to draw on those interviews for cross-examination.

But unless there’s some wildly egregious error in these files, Mark Zaid did two interviews with the FBI before he — obligated by subpoena, he said repeatedly — testified before the grand jury on September 22, 2010.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse in Grand Rapids, MI.

15 replies
  1. Mark S. Zaid, Esq. says:

    This is a typical example of analysis by someone who fails to understand, particularly because they have absolutely no experience with law, law enforcement or intelligence matters, how the FBI conducts and records its investigations. Additionally, as is often the case, armchair “experts” attempt to fill in facts that they simply do not know because they were not personally involved with the matter. While many people would simply ignore these types of attacks, that is not my style. I will instead confront them directly particularly as I have nothing to hide.

    First, I was unaware of the tweet referenced above or else I would have responded. The insinuation made is again an example of someone simply poised to personally attack me in that they would assume an individual tweet from them would be seen amidst the hundreds, sometimes thousands, of others I receive on a daily basis.

    Second, nothing I write here will reveal any information that is attorney-client privileged to Jeff Sterling. My obligation to protect that information exists in perpetuity. I have practiced law for nearly 25 years and I do not violate privilege of any of my clients. Indeed, had it been perceived I had done so in Jeff’s case I have no doubt he, or his criminal defense lawyers, would have, as they should have, reported me to the Bar Association for disciplinary action. Needless to say, that has never happened, for obvious reasons.

    Third, I represented Jeff from 2001 until roughly when I was subpoenaed before the Grand Jury in 2010. At that time I became a witness and was conflicted out of further representation. Of course, I was not a primary defense attorney in the case as that is not my practice area (I am a national security employment attorney), but I did handle, with my then law partner Roy Krieger, all of the administrative/criminal investigations that took place between 2003 – 2010 (mostly 2003-2006). This was ongoing while I was serving as counsel to Jeff in his civil discrimination lawsuit which started in SDNY in 2001, and then ended up at EDVA, the 4th Circuit and ultimately was declined cert at the U.S. Supreme Court sometime around 2005-2006.

    Fourth, my personal opinion was that I was subpoenaed before the Grand Jury in large part as a strike against me given the years I had litigated against CIA, as well as to complicate Jeff’s legal representation as I was aware of significant facts. Obviously, it is highly unusual for a lawyer to be subpoenaed in a criminal case against his own client. Indeed, such approval is usually reserved for the Attorney or Deputy Attorney General of the United States. Of course, the issue of attorney-client privilege is controlled by the client, not the lawyer. I cannot consent to testify to information that is privileged, only the client can. Because discussions with the Govt made it clear they would not ask or press me on attorney-client privileged information, my presence before the Grand Jury was not objected to by Jeff or his criminal lawyers. I testified solely about non-privileged, third party information, such as my involvement with the Senate Select Committee on Intelligence and civil settlement discussions with CIA. Here is the Washington Post’s story on my Grand Jury testimony: http://voices.washingtonpost.com/spy-talk/2011/01/lawyer_in_cia_leak_case_questi.html.

    BTW, Jeff’s attorneys had access to my Grand Jury testimony and know exactly what I stated. Yet, again, no action of any kind was ever taken against me. In fact, I was asked by the Grand Jury whether I was the source of the classified leak! I was not.

    Fifth, just because there is a FBI 302 report of a discussion with me doesn’t mean it was an “interview”. Again, this is reflective of the lack of understanding of a process the above author has no experience with at all. I should note I have never seen these 302 reports so I have no idea what they actually state, or whether accurately or inaccurately reflect the Agent’s memory of a conversation or action.

    That first April 2003 “interview” was undoubtedly to set up the interview that took place between Jeff and the FBI in June 2003. The CIA was adamant that I not be allowed to participate in that meeting, whereas the FBI believed I should be there. There was an intense battle between the agencies that took weeks to resolve and I know because the FBI agents shared that information with me. Frankly, as is noted in SA Hunt’s testimony, the FBI believed the leak was from the Senate, not from Jeff. They told me that specifically as well on several occasions. Ultimately the FBI told CIA that if CIA didn’t clear me to attend the interview, then it would. It did, and I was there defending Jeff during the June 2003 interview, along with my then law partner.

    Sixth, that September 2, 2010, “interview” memorialized by the 302 was probably simply noting they had served me with the subpoena to testify before the Grand Jury on September 22, 2010. The FBI memorializes every little step they take in these cases, from the mundane to significant. I also remember meeting with the prosecutor, with FBI agents present, to discuss the scope of my testimony, i.e., the limits of attorney-client privilege. It could have been that as well. I honestly do not recall. But I do now for a fact that nothing I have ever said to the FBI could ever be construed in a way unfavorable to Jeff. BTW, I had to retain my own legal counsel at my own personal expense for my Grand Jury appearance, and I was happy to do so because my desire was to protect Jeff.

    Seventh, let me address SA Hunt’s hearsay testimony about this alleged 2003 conversation that occurred with the CIA. You will note it does not distinguish between me or my law partner Roy Krieger, although of course certain individuals have no problem with blaming me for whatever was discussed. I have represented intelligence personnel, including some of the most covert individuals, for nearly my entire legal career that spans approaching 25 years. I have represented untold numbers of CIA personnel. As I stated above, at no time have I ever violated attorney-client privilege regarding a client (although there are ethical exception where I could have, especially when they threaten to reveal classified information that could lead to the harm of others, and I have seen it all over these years).

    At NO time did I ever tell the FBI or CIA or any member of the US Government that Jeff Sterling was going to reveal classified information. Plain and simple. Any assertion or insinuation to the contrary is nothing less than defamatory.

    I have never seen this purported CIA memo and I disagree with the characterization of the alleged hearsay facts presented, but the extent to which the FBI assumed it related to Sterling was their guess, nothing more.

    Finally, Jeff is a friend of mine and has been for over 16 years. I was there with him during some very rough times when no one else was supporting him. That is typical for those in the Intelligence Community who are isolated and ostracized. He was unfairly prosecuted and excessively sentenced. Even though I was no longer his legal counsel, I was in constant contact with him or his lawyers throughout his trial and there if he needed me. I still am.

    This “analysis” is a disservice to Jeff, who continues to proclaim his innocence of doing anything wrong. Frankly, if you want to know why Jeff, who the Govt had completely lost interest in following my representation of his interests in 2003 (as SA Hunt admitted, the FBI didn’t believe it was Jeff), was then pursued and prosecuted, go no further than reading the 2006 book State of War. It will be very clear when you do.

    • emptywheel says:

      Thanks for responding Mark.

      I’m quite familiar with why and how the government became re-interested in Sterling, thanks.

      As a reminder, I did cover this trial. And have spoken with people involved in it. So I’d say there are details here that others would disagree with, but I’m glad you finally explained all this.

    • emptywheel says:

      Also, care to explain what details I have “filled in,” especially since you repeat a number of the ones I made as if you hadn’t seen them right there in the post?

    • SpaceLifeForm says:

      “Ultimately the FBI told CIA that if CIA didn’t clear me to attend the interview, then it would. It did, and I was there defending Jeff during the June 2003 interview, along with my then law partner.”

      Just to be clear, where you say “It did”, are you saying the ‘it’ was the FBI? That CIA continued to attempt to keep you from the interview, so the FBI had to clear you?

  2. -Mona- says:

    Ah geez Marcy, Mark is essentially telling you to STFU because, you crazy woman — and as you’ve repeatedly been told — you are not a lawyer. Sure, you may have covered the trial, and you may hold a superior talent for statutory and other sorts of analysis, but when are you going to admit this lack of JD trumps all?

    Seriously, excellent work. Mark’s hot air and misdirection here are his typical spewing. All reasonably intelligent people will reject it.

  3. Anonymous says:

    It’s worth noting that in his 7th point above, Mark Zaid does not actually deny FBI Special Agent Ashley Hunt’s allegation that he and Roy Krieger contacted the CIA on February 24, 2003 and told it “that a client of theirs had contacted them on February 21, 2003, and that that client, that unnamed client at the time voiced his concerns about an operation that was nuclear in nature, and he threatened to go to the media.”

    Perhaps Mr. Zaid could clarify this point? Was anything in SA Hunt’s testimony untrue?

  4. orionATL says:

    for mark zaid :

    i personally regard the prosecution and subsequent imprisionment of geoffrey sterling as one of the most egregious and unjust of the doj’s string of whistleblower prosecutions – no web of convincing evidence, a “key” cia document referencing using a dial phone, a prosecutor manipulating a jury with a fake “secret” document…

    some questions for you:

    – did you represent geoffrey sterling in his discrimination suit against the cia?

    – did you speak with federal officials, grand jury, cia officials, or, in particular, fbi officials about sterling having mentioned to yoh a nuclear matter?

    – did you volunteer to testify?

    in particular, is the following court testimony accurate:

    “… BY MR. OLSHAN: Q. You may continue, Special Agent Hunt.

    A. The CIA advised that on February 24, 2003, it was contacted by Mark Zaid and Roy Krieger. They told the CIA on February 24 that a client of theirs had contacted them on February 21, 2003, and that that client, that unnamed client at the time voiced his concerns about an operation that was nuclear in nature, and he threatened to go to the media.

    Q. Did you later learn who that client was from Mr. Zaid and Mr. Krieger in the course of your investigation?

    A. I did.

    Q. Did those facts help you focus the direction of your investigation?

    A. They did.

    Q. And who did you learn was the client of Mr. Krieger and Mr. Zaid?

    A. Jeffrey Sterling… ”

    mr. zaid, why would an attorney volunteer to a government agent information a client had given him?

      • orionATL says:

        tx, bmaz.

        i read it closely (at least as closely as a non-lawyer can :) ) . i did not get the sense he answered the question that most interested me.

        mr. zaid:

        “… At NO time did I ever tell the FBI or CIA or any member of the US Government that Jeff Sterling was going to reveal classified information. Plain and simple. Any assertion or insinuation to the contrary is nothing less than defamatory.

        I have never seen this purported CIA memo and I disagree with the characterization of the alleged hearsay facts presented, but the extent to which the FBI assumed it related to Sterling was their guess, nothing more… ”

        my interest is whether zaid or his partner ever mentioned to the cia info about a nuclear matter which sterling had spoken to them about. if there was a straight answer to that question in mr. zaid’s response i missed it. can you point it out to me?

        my question was not whether mr. zaid told the fbi or cia… that sterling was going to reveal classified information. my question, based on the court testimony (hearsay though it may be in a court), was – did zaid or partner ever talk to cia about a nuclear matter that sterling had mentioned to him and his partner?

    • bmaz says:

      Jesus. There are a gazillion facts here on this very post giving better content than that shit.

      Please, don’t pull this bunk.

      • orionATL says:

        what crap, bmaz. i’m getting really impatient with being put down by you.

        you know as well as i do that this is –

        a) a perfectly normal citation for this weblog

        b) is just what i promised a reader, a short summary of what bothered me most about the sterling trial – the too-clever-by-half actions of the prosecution, including bringing in the sec of state.

        would you cite for me even one fact on this post, interesting as it is, that touches on that point, the point of what i consider prosecutorial induced drama.

        i assume what you are really saying, bmaz, is “butt out, we don’t want you in this discussion”. *

    • Peterr says:

      Nice to see you drop back in.

      As long as you are replying to the questions raised in the comments, I’m interested in your answer to Marcy’s question at 7:44am:

      Also, care to explain what details I have “filled in,” especially since you repeat a number of the ones I made as if you hadn’t seen them right there in the post?

       

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