SDNY Calls DOJ’s Definition of the Espionage Act an “Academic Interest”

DOJ has now responded to my intervention in the Joshua Schulte case. Presumably because my motion, written by Kel McClanahan, focused on how flimsy the government’s claim to keep transcripts of a CIPA conference hidden, the government’s response pitches this as exclusively a CIPA battle. It’s totally a reasonable legal stance.

But along the way, in apparent effort to distract from the topic at issue — in part, the application of the Espionage Act to journalism — SDNY suggests it is just an academic interest whether DOJ would charge someone for sharing classified information already published by the NYT.

The mere fact that someone would like to know information is not a part of the right-of-access analysis, however, and the Government’s motion should be granted.


Intervenor’s desire to speculate as to the potential application of the Government’s articulation of the elements of an offense to other circumstances has no bearing on the ability of the public to monitor or assess the actual rulings of the Court in the CIPA § 6 hearings to which Intervenor demands access.


[T]he question is not whether redacted transcripts are coherent as a matter of language or whether they might be relevant to Intervenor’s academic interest.

I’m the intervenor here, not McClanahan (who is a professor on national security law at GW Law). I need to know this stuff not just to cover WikiLeaks (I’m more of an expert than the expert SDNY relied on in the first trial, Paul Rosenzweig), but also to understand my own exposure as a journalist.

Not once in the filing does the government use the words “Espionage Act.” Not once does DOJ mention “journalist.” Not once does it mention the NY Times, the hypothetical that DOJ is attempting to hide, which (as Judge Jesse Furman described in a court hearing) is this:

I gave you two hypotheticals. I think one is where a member of the public goes on WikiLeaks today and downloads Vault 7 and Vault 8 and then provides the hard dive with the download to someone who is not authorized to receive NDI, and I posed the question of whether that person would be guilty of violating the Espionage Act and I think your answer was yes. That strikes me as a very bold, kind of striking proposition because in that instance, if the person is not in a position to know whether it is actual classified information, actual government information, accurate information, etc., simply providing something that’s already public to another person doesn’t strike me as — I mean, strikes me as, number one, would be sort of surprising if that qualified as a criminal act. But, to the extent that the statute could be construed to the extend to that act one would think that there might be serious constitutional problems with it.

I also posed the hypothetical of the New York Times is publishing something that appears in the leak and somebody sharing that article in the New York Times with someone else. That would be a crime and there, too, I think you said it might well be violation of the law. I think to the extent that that would extend to the New York Times reporter for reporting on what is in the leak, or to the extent that it would extend to someone who is not in position to know or position to confirm, that raises serious constitutional doubts in my mind. That, to me, is distinguishable from somebody who is in a position to know. I think there is a distinction if that person transmits a New York Times article containing classified information and in that transmission does something that confirms that that information is accurate — right — or reliable or government information, then that’s confirmation, it strikes me, as NDI. But it just strikes me as a very bold and kind of striking proposition to say that somebody, who is not in position to know or does not act in a way that would confirm the authenticity or reliability of that information by sharing a New York Times article, could be violating the Espionage Act. That strikes me as a kind of striking proposition.

The government is no doubt exploiting the emphasis in my filing, but the notion that whether I can be charged for doing journalism is not an academic interest! It’s not just that there is an acute interest, amid the Julian Assange extradition proceedings, to know the government’s thinking about the Espionage Act, it goes to the chilling effect of not knowing what I can safely publish in the course of doing my job. I don’t have the luxury of “speculating” about the application of the Espionage Act, because if I guess wrong, I could be imprisoned for a decade.

The government wants this to be about CIPA. But the problem is that the government is attempting to hide something that is not classified — the elements of offense for a serious crime that can chill the ability to do journalism — via claims about CIPA.

Third, Intervenor asserts a First Amendment right of access premised on the assertion that “the Government present[ed] legal arguments about elements of the crime itself,” which Intervenor claims both have traditionally been open to the public and are of value to the monitoring of the judicial process. (D.E. 988 at 2). Intervenor’s contention that legal arguments the Government may have advanced at the Section 6 hearings are “something that interested persons in the field should know” (id. at 3) simply “cuts too wide a swath—taken to its extreme, considerations of logic would always validate public access to any judicial document or proceeding.” United States v. Cohen, 366 F. Supp. 3d 612, 631 (S.D.N.Y. 2019). Contrary to Intervenor’s suggestion that discussion of the elements of an offense “stray[s] far from a simple discussion of evidentiary issues” (D.E. 988 at 3), such discussion is integral to virtually any assessment of the relevance and admissibility of evidence, including that occurring in CIPA § 6 hearings, in which courts “look to what elements must be proven under the statute,” United States v. McCorkle, 688 F.3d 518, 521 (8th Cir. 2012); see also United States v. Bailey, 444 U.S. 394, 416 (1980) (describing need to “limit[] evidence in a trial to that directed at the elements of the crime”).

Tellingly, SDNY’s citation of a 2019 District opinion relating to the unsealing of Michael Cohen’s search warrants — which were released with redactions, the desired goal here! — is inapt to the question of whether the government should be able to hide its discussions of how it understands the Espionage Act by claiming that that needs to be protected as classified information.

Considerations of logic also counsel against recognizing a First Amendment right to access search warrant materials. Of course, public access to search warrant materials may promote the integrity of the criminal justice system or judicial proceedings in a generalized sense. United States v. Huntley943 F.Supp.2d 383, 385 (E.D.N.Y. 2013) (remarking that “the light of the press shining into the innards of government is necessary to inhibit violation of the public trust”). But such an argument cuts too wide a swath—taken to its extreme, considerations of logic would always validate public access to any judicial document or proceeding. Cf. Times Mirror Co.873 F.2d at 1213 (rejecting as overbroad the argument that the First Amendment mandates access to any proceeding or document that implicates “self-governance or the integrity of the criminal fact-finding process”); In re Bos. Herald, Inc.321 F.3d at 187 (“In isolation, the [rationale that the public must have a full understanding to serve as an effective check] proves too much—under it, even grand jury proceedings would be public.”). As the Ninth Circuit aptly observed, “[e]very judicial proceeding, indeed every governmental process, arguably benefits from public scrutiny to some degree, in that openness leads to a better-informed citizenry and tends to deter government officials from abusing the powers of government.” Times Mirror Co.873 F.2d at 1213.

Understanding the law is a matter that precedes the media’s scrutiny of whether the government abused the Espionage Act in this case (or in Julian Assange’s). And while the elements of the offense of the Espionage Act does dictate whether evidence would be helpful or not to the defense — the consideration of a CIPA hearing — ultimately this debate was about (and significantly appeared in) jury instructions, the law as applied.

Again, SDNY’s stance seems tactical, a response to our filing’s greater focus on matters of classification than the status of the press. But the outcome — SDNY’s claim that I have the luxury of merely “speculating” about the application of the Espionage Act — is alarmingly arrogant.

I was only able to make this challenge because McClanahan was able and willing to help — and he can only do so through the support of his non-profit. If you believe fights like this are important and have the ability to include it in your year-end donations, please consider supporting  the effort with a donation via this link or PayPal. Thanks!

19 replies
  1. Peterr says:

    But the outcome — SDNY’s claim that I have the luxury of merely “speculating” about the application of the Espionage Act — is alarmingly arrogant.

    By all accounts, those last two words describe the standard operating procedure of the Sovereign District of New York.

    That word “speculating” needs to be hammered in any sur-reply, as well as in oral arguments before the court. It’s to *avoid* speculating that you are intervening: “Am I in danger of prison or not?”

    • Rugger_9 says:

      I suppose an alternative is to extend an unconstrained immunity from prosecution to Dr. Wheeler, but somehow I don’t think the DoJ SDNY staff will do that. The chilling effect against inconvenient reporting is the purpose as EW points out.

  2. earlofhuntingdon says:

    The good news, I suppose, is that the DoJ tailored its response to you: doctorate from Michigan, individual journalist. They framed it as if to pretend your interests were not shared by the NYT, the WaPo, and every other media outlet whose journalists cover national politics and security issues. Not a framing that should succeed.

    • emptywheel says:

      It’s a testament–not a good one–that I’m the one launching this challenge, not the NYT, not the normal coalition of media outlets who do this. Half are wailing about Julian Assange’s treatment, but none of them (Inner City Press is the exception, he covered it live and also intervened here) have covered his case closely enough to even note what’s at issue.

  3. NatlSecCnslrs says:

    I also find it amusing that, even though they honestly could’ve made a huge deal about me bringing in prepub review case law, since tmk nobody has done that before in a CIPA case, they just … didn’t. They challenged my final conclusion that there was no legitimate interest, but sort of tacitly accepted the fundamental premise that the case law was relevant. I’m not saying they would’ve won necessarily, or even that they should (they shouldn’t, obviously), but I kept thinking “they’re running out of space, when are they going to talk about prepub review” all the way to the end, then I just sat there and reflected on the concession for about 30 seconds.

    • emptywheel says:

      As I said, I think they made a tactical decision to pitch this as a CIPA fight, not a 1A fight.

      But WTF with that Michael Cohen citation, then? Am I wrong that that doesn’t help them, like, at all?

      • NatlSecCnslrs says:

        Yeah that’s my point. If you’d’ve asked me, how can they best pitch this as a CIPA fight and not a 1A fight, my first answer would’ve been, well they first have to kill any inclination the judge might have to listen to anything about prepub review. Once he’s thinking about whether the government interest is real, they’ve already lost because he’s thinking in 1A terms.

        PS yeah the Cohen cite was weird. I mean, I understand why they made it, but it only works if the judge doesn’t go read the actual opinion. Which is weird after they accused me of cherrypicking part of a quote.

        • Fancy Chicken says:

          So nice to see you here and your perspective along with Dr. wheeler’s. Please come by again, your contribution to the discussion is most helpful.

      • Another dude from G-ville says:

        I got a kick out of the fact the cited Cohen. But it got me thinking with unsealing warrants and all if they are preempting something in another case?

  4. Fancy Chicken says:

    Ah The Link! Thank you so much Dr. wheeler; I did not forget to make my contribution in December, I saved it as you suggested, so I could add some to it and make a donation to National Security Counselors but their new website is under construction and I couldn’t figure out how to donate to them so I sent an email yesterday requesting that information and voilà you have it here for me!

    I will promptly take care of their donation and I hope that if other check them out or Kel Mcclanahan, they will be inspired to send a little gift their way as the work the do is so critical and they are representing folks like Dr. wheeler here, not some dope who can afford to hire a white shoe firm to represent them.

    Thank you for jumping into this Dr. wheeler, this is really important information that the government need to be crystal clear on rather than treat their speculations in court as merely “academic exercises”- what hubris!

      • Fancy Chicken says:

        Strange. It’s in my sent box. But it didn’t come from Fancy Chicken lol it came from Tracey Johnstone with the subject header “How to Make a Donation” and it was sent to your first name

        Did I send it to the right addy? Just curious as I don’t like it when mail just disappears into the ether, not suppose to happen.

        Most important though I got the donation form and I sure hope I’m not the only person here who opens it up and sends a donation.

      • Fancy Chicken says:

        Hey Mods,

        I’m getting flagged with a “duplicate post” notice, and it’s not, could you see what’s up please and thank you.

        [Sorry, I don’t see anything hung up in backend of site which indicates there’s a problem. Chances are good it was caused by a network burp. /~Rayne]

  5. SaltinWound says:

    Related to donating to support this: is there a system for acknowledging donations to emptywheel? My only record has been receipts from PayPal but that can get mixed up with other donations.

  6. Savage Librarian says:

    The 1st Amendment is 1st for a reason, far from just an academic exercise. Here’s another case currently of interest to journalists:

    “Appeals court to decide if First Amendment should have protected Laredo’s “big crazy lady” from arrest” – Roxanna Asgarian, 1/6/23

    “Priscilla Villarreal was arrested over her Facebook postings. In a rare proceeding, the entire 5th U.S. Circuit Court of Appeals will weigh whether she can sue, a case that could have major ramifications for citizen journalists like her — and professional ones.”
    “Her case pits the First Amendment against qualified immunity, a legal doctrine that shields public officials from being sued individually unless they’ve violated a “clearly established” constitutional right. Although it involves a freelance, untrained citizen journalist, the case has widespread implications for journalism in Texas and beyond. A similar case is already working its way up through the courts in Fort Bend County.”

Comments are closed.