With One Dropped Charge and a Major Screw-up, Government in Remarkably Weak Position against Joshua Schulte

The outcome of the Joshua Schulte trial will be unresolved until closing arguments Monday and deliberation next week.

While parts of the case are circumstantial — because Schulte allegedly used TAILS, there’s no smoking gun showing him sharing stolen files with WikiLeaks — in my opinion the case against him is quite strong, particularly given really damning details from his prison notebooks talking about leaking to WikiLeaks.

But the government, having rested and rebutted the scant defense case, is in remarkably weak position right now.

That’s true, first of all, because the government has spent over two weeks trying to recover from an own goal, prosecutors’ failure to provide Schulte with advance notice that one of his closest buddies at the CIA, Michael, got put on paid leave last August because the CIA no longer trusts the developer because of his closeness to and lack of candor about Schulte. In reality, Michael should have been a key witness for prosecutors, providing proof that Schulte was at his computer and logged in when the reversion and copy of the files likely shared with WikiLeaks was accomplished. But because prosecutors didn’t fully disclose the report in real time, Schulte has flipped that on its head. The trial ended with the guy who wrote that report testifying on rebuttal about how this is still all about Schulte — effectively providing emphasis that the CIA maintains that Schulte is the culprit — but it interrupted the narrative arch of the government case.

Add that to the pace of the trial, which feels like a nasty employment dispute to which the massive breach of the CIA’s hacking tools became just a side-dispute. That’s often true of CIA trials — it certainly was for Jeffrey Sterling. But the long parade of CIA witnesses — Schulte’s buddy, two other colleagues, his boss, his boss’s boss, his boss’s boss’s boss, her boss, and then yet another boss, plus a CIA SysAdmin and a security guy — all describing a series of disputes escalating from a nerf gun fight to WikiLeaks burning the CIA’s hacking capabilities to the ground refocused the trial onto whether Schulte’s complaints had merit and not on what the forensic evidence showed.

And Sabrina Shroff did a superb job of defending not the forensic case (indeed, defense expert Steve Bellovin did not take the stand to float any of the alternate theories that Schulte has been offering for two years, and in so doing will leave Shroff to claim Michael could have accessed the backup without prosecutors having gotten him to admit that wouldn’t have worked), but instead arguing that her client was maligned by the entire CIA. The boss, the boss’s boss, the boss’s boss’s boss, the boss’s boss’s boss’s boss, and then the senior-most boss are all lined up against Schulte for being an asshole. She even defused utterly damning notes about working with Russia (which I’ll return to). From the transcripts, it seemed like Shroff rattled a good many government witnesses, too, and a number of them (one of the FBI agents and the classification expert, especially) seemed to come off as unresponsive as a result.

And on a potentially significant point, FBI Agent Evan James Schlessinger’s unresponsiveness deprived the government of an opportunity to rebut something the defense will do in its close. The defense entered a stipulation that Schulte had been thrown into the SHU on October 1, 2018, before the Bureau of Prisons found the phone he allegedly used to leak classified information to Shane Harris. The phone continued to be used, probably by Schulte’s roommate Omar Amanat, for whom Schulte was writing an expert report. Somebody–again, probably Amanat–sent a Signal text to Harris on October 2, saying “Hi Shane, the anon email is down since Sunday evening Can you resend your questions to [email protected] thanks.” That text seems to be proof that no one besides Schulte had the password to the other email account, [email protected], but the FBI Agent didn’t take this point head on when he could have.

Two weeks ago, one juror apparently complained about another, suggesting she was already making up her mind. Whatever the complaint, the defense seemed to welcome it, which given the focus on the employment dispute may mean the juror sees that dispute as contested.

Finally, the government dropped one of its charges today, eliminating the Illegal Transmission of Lawfully Possessed National Defense Information (Count Two in the superseding indictment). The government dropped it to avoid confusing the jury about whether Schulte had legal access to the files that he stole. But the discussion about it leads me to think the defense could argue that Schulte had legal access to some of the files he sent to WikiLeaks, thereby getting off on that charge. If the jury convicts, that dropped charge won’t much matter in the grand scheme of things. And even an acquittal would not spring Schulte from jail, because he still faces child porn charges.

Still, I have to applaud the job that Shroff and Schulte’s other attorneys did, because she did a remarkable job with one of the most nightmarish clients. She certainly put a lot out there that might lead jurors to find there is a reasonable doubt about this.

And much of that comes from the government being dickish.

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15 replies
  1. P J Evans says:

    I wonder how much of this can be laid at the many feet in the AG’s office, and the revolving staff there.

    • emptywheel says:

      None of it. MAYBE CIA gets some blame for not wanting to air their employee dirt. But prosecutors simply should have given notice to avoid something like this. As they rightly point out, Schulte has had the underlying evidence the whole time. Just not a report and the leave designation.

  2. orionATL says:

    remarkable incompetence.

    on the other hand, an acquittal might benefit our prez’s wikileaks hero, julian assange.

    • orionATL says:

      “THE STATE OF PLAY: JOSHUA SCHULTE AND JULIAN ASSANGE… February 26, 2020…

      emptywheel

      Julian Assange won a delayed, second hearing in his extradition case in December. That delay may provide the US government time to integrate charges related to Vault 7 that would be fairly damaging to Assange’s case.”

      • orionATL says:

        i’m not. quite the contrary.

        maybe two cases “screwed up”.

        neither accidentally.

        jeez, bmaz. you are up really early. doing your stocking up for the panpanic before going to work? 😄

        • bmaz says:

          Heh. Our daughter got in about 2am. She was given two weeks off by her employer in Boston because she had been in Italy a week ago. And I have not been back to sleep since…

  3. Eureka says:

    Wow, a big “thud” I was not quite expecting, even thought your coverage presaged and pointed to a lot of this stuff. Synergy, it seems.

    • bmaz says:

      We shall see. The evidence actually appears pretty damning. The thing is, none of us were really in court to see the case the court allowed and the jury saw and heard by their own perception. Us outside of that courtroom think we know, and sometimes you do get a decent bead on it, but if not in that courtroom every day, you just cannot really know.

      Sabrina Shroff is one hell of a good lawyer. And one who has been saddled with one of the more problematic clients ever. Which may be an understatement. Somehow, and it is beyond marvelous how, she has made the defense. Seriously good work. As to the “thud”, let’s see; this is still a case in the hands of the jury.

      • emptywheel says:

        Yeah, there’s not only a lot of really damning evidence–basically a signed confession in his prison notebooks–but there’s also a hell of a lot of fearmongering they can put in here.
        I’m really fascinated by the Russia stuff. Schulte basically said that he wanted to cause another NotPetya with one of the CIA tools he leaked.

  4. Mulder says:

    This discussion led me to re-read the Wired NotPetya article with COVID-19 impact on supply chain in mind. Mindboggling!

    “The shipping terminal in Elizabeth, New Jersey—one of the 76 that make up the port-operations division of Maersk known as APM Terminals—sprawls out into Newark Bay on a man-made peninsula covering a full square mile…On a good day, about 3,000 trucks arrive at the terminal, each assigned to pick up or drop off tens of thousands of pounds of everything from diapers to avocados to tractor parts…That gate, a choke point to Maersk’s entire New Jersey terminal operation, was dead. The gate clerks had gone silent.Soon, hundreds of 18-wheelers were backed up in a line that stretched for miles outside the terminal…In fact, it was a clusterfuck of clusterfucks. The same scene was playing out at 17 of Maersk’s 76 terminals, from Los Angeles to Algeciras, Spain, to Rotterdam in the Netherlands, to Mumbai. Gates were down. Cranes were frozen. Tens of thousands of trucks would be turned away from comatose terminals across the globe.”

    Thank goodness this is all a Dem Witch Hoax.

    • Bobby Gladd says:

      I’m the ASQ local volunteer coordinator for the upcoming 2020 Baltimore Science Fair (3 weeks out, at Towson University). Last night I emailed the Director to inquire as to whether they have a COVID-19 contingency plan.

      I’m betting the answer will be “no.”

      We’re making a CostCo stockup run shortly.

      And, “is there gas in the car? Yes, there’s gas in the car…”

  5. Savage Librarian says:

    Yeah, I think all that employee/employer stuff threw a wrench into the thought process. Ironically, it worked in the other direction for Bruce Ohr (even though his wasn’t a trial.) So, the good guy was treated as bad and, now, the bad guy may be treated as good.

    It’s interesting the stories we each come to tell ourselves, based on our wiring, our upbringing, and our experience with life and human relationships. I believe the jurors have specific information that could render a guilty verdict. But, obviously, there could easily be one or more jurors who are not convinced ( either in good faith or bad faith.)

    Hopefully, the government is able to make a compelling closing statement that rises above the more mundane issues of labor disputes and hammers on the national security aspect. It would have to be able to tie together the critical evidence ew has so diligently noted. And, the jurors would have to be able to see and care about the national security of the democracy they live in.

    OT, but because it is February 29, you might take a moment to think about Augusta Savage who was born on this date in 1892.

    “Great Moments in Art Education History: Augusta Savage” – (by Sarah Colado)
    https://youtu.be/SQMzpR7zzqU

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