1
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA
Alexandria Division
UNITED STATES OF AMERICA, )
)
Plaintiff, )
)
v. ) CRIMINAL ACTION
)
STEVEN J. ROSEN, ) 1:05 CR 225
KEITH WEISSMAN, )
)
Defendants. )
)
REPORTER'S TRANSCRIPT
MOTIONS HEARING
Friday, March 24, 2006
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BEFORE: THE HONORABLE T.S. ELLIS, III
Presiding
APPEARANCES: OFFICE OF THE UNITED STATES ATTORNEY
BY: KEVIN DIGREGORY, AUSA
NEIL HAMMERSTROM, AUSA
THOMAS REILLY, SAUSA (DOJ)
MICHAEL MARTIN, SAUSA (DOJ)
For the Government
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MICHAEL A. RODRIQUEZ, RPR/CM/RMR
Official Court Reporter
USDC, Eastern District of Virginia
Alexandria, Virginia
MICHAEL A. RODRIQUEZ, RPR/CM/RMR
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1 APPEARANCES (Continued):
2 ABBE LOWELL, ESQ.
KEITH ROSEN, ESQ.
3 ERICA PAULSON, ESQ.
4 For Defendant Rosen
5 JOHN NASSIKAS, ESQ.
KARITHA BABU, ESQ.
6 KATE BRISCOE, ESQ.
BARUCH WEISS, ESQ.
7
For Defendant Weissman
8
9 ---
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11
12
13
14
15
16
17
18
19
20
21
22
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25
MICHAEL A. RODRIQUEZ, RPR/CM/RMR
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1 INDEX
2
3 COURT QUESTIONS / ARGUMENT BY THE DEFENDANT 10
4 COURT QUESTIONS / ARGUMENT BY THE GOVERNMENT 36
5 COURT QUESTIONS / ARGUMENT BY THE DEFENDANT 77
6 (Further submissions requested)
7 PARTIAL RULINGS BY THE COURT ON OTHER MOTIONS 86
8 COURT QUESTIONS / ARGUMENT BY THE DEFENDANT 91
9 COURT QUESTIONS / ARGUMENT BY THE GOVERNMENT 94
10 FURTHER PARTIAL RULINGS BY THE COURT 97
11
12 (Court recessed)
13
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14
15
16
17
18
19
20
21
22
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24
25
MICHAEL A. RODRIQUEZ, RPR/CM/RMR
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1 PROCEEDINGS
2
3 (Court called to order at 1:22 p.m. in USA v.
4 Rosen, Weissman)
5 THE COURT: Good afternoon.
6 You may call the next matter.
7 THE CLERK: 1:05 Criminal 225, United States
8 versus Steven J. Rosen and Keith Weissman.
9 Would counsel please note your appearances?
10 ATTORNEY DIGREGORY: Good afternoon, your
11 Honor. Kevin DiGregory and Neil Hammerstrom, assistant
12 United States attorneys, and Thomas Reilly and Michael
13 Martin, trial attorneys with the Counterespionage Section of
14 the United States Department of Justice, Criminal Division,
15 on behalf of the United States.
16 THE COURT: All right. Good afternoon.
17 And for the Defendant Weissman -- or Rosen, I'm
18 sorry. Let's do it -- I had forgotten which order they're
19 in.
20 ATTORNEY LOWELL: Good afternoon, your Honor.
21 Abbe Lowell --
22 THE COURT: Yes, Mr. Lowell.
23 ATTORNEY LOWELL: -- Keith Rosen and Erica
24 Paulson from Chadbourne and Parke on behalf of Steven Rosen,
25 who's --
MICHAEL A. RODRIQUEZ, RPR/CM/RMR
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1 THE COURT: All right.
2 And for Mr. Weissman?
3 ATTORNEY NASSIKAS: Yes, your Honor.
4 THE COURT: Mr. Nassikas, you can stay there
5 for now.
6 ATTORNEY NASSIKAS: Thank you, your Honor.
7 It's John Nassikas along with Karitha Babu and Marcia
8 Durkin, Kate Briscoe, your Honor. And also, a new cocounsel
9 to the case, assuming the Court is willing to grant pro hac
10 vice --
11 THE COURT: I've already done that.
12 ATTORNEY NASSIKAS: Thank you so much.
13 (Continuing) -- Baruch Weiss.
14 THE COURT: Good afternoon. We're glad to have
15 you here.
16 Well, good afternoon to all of you again. The
17 delay in commencing was the morning docket took a little
18 longer.
19 Now, I believe this hearing can proceed, as I
20 envision it at the moment, entirely on the public record.
21 And indeed, I would prefer that. However, if at any time
22 counsel or Ms. Gunning, who's here, think there is something
23 about to be -- about to happen or said that's classified,
24 just raise your hand and we'll consider that.
25 Now, let me have the court security officer --
MICHAEL A. RODRIQUEZ, RPR/CM/RMR
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1 if you will turn on the Elmo. And I'm going to put up on
2 the Elmo, so that you will see it -- he'll have to pull up
3 the computer here for you all.
4 No, the computer's in the front. He'll do it
5 all, I think. He'll do it all.
6 And the only reason for this is, I have a list
7 of some 14 motions, and I think that's the right number.
8 But if it isn't, we'll have to -- it may not be. And if so,
9 I need to know what's to be added or subtracted.
10 Yes.
11 And those of you sitting in the courtroom will
12 also be able to see this.
13 Now, if you will put this page on the Elmo.
14 All this does is list the motions and the
15 docket numbers.
16 Do you have the page?
17 Hand this to the court security officer. Thank
18 you.
19 THE MARSHAL: (Complied).
20 THE COURT: All of this drama for the simple
21 purpose of showing a list. We have, indeed, become slaves
22 to technology.
23 ATTORNEY DIGREGORY: It doesn't seem to be
24 working, your Honor.
25 THE COURT: Of course.
MICHAEL A. RODRIQUEZ, RPR/CM/RMR
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1 Call Lance and have him come up here, please.
2 I see one other -- (pause).
3 All right, well, he'll fix it right away. I
4 see some other persons in the courtroom who are courthouse
5 team members. Do any of you know how to use it?
6 (People indicating)
7 THE COURT: That's all right. Lance is on his
8 way up. He'll be able do deal with it. Thank you, however.
9 All right. I have 14. And when he gets here,
10 I'm sure what he'll do is what my wife often does when she
11 comes up to repair some item of gadgetry that she likes and
12 owns, and that I have to use occasionally and I can't get to
13 work, she comes up and she shows me a plug or "on-off"
14 switch or something complex like that -- and takes great
15 pleasure in doing that, since she says she was an English
16 major.
17 I try to soften that by saying, yes, you were
18 Phi Beta Kappa and I wasn't. That doesn't seem to lessen
19 her glee in showing what she does.
20 Now Mr. Lowell's about to show me that he was
21 Phi Beta Kappa.
22 Well, what I plan on do, while you're looking
23 at that, is I plan to begin with argument on the motion to
24 dismiss the superseding indictment, that argues that the --
25 here he is.
MICHAEL A. RODRIQUEZ, RPR/CM/RMR
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1 Oh, I see. Now while you're here, Mr. Lowell
2 has now proved himself adept at technology. But we need to
3 make it bigger. Lance, can you make it bigger?
4 Well, that doesn't help much, because we don't
5 get all 14 in.
6 I just need 1 through 14, is all I need.
7 One more.
8 That's it. Okay. Thank you.
9 ATTORNEY NASSIKAS: Your Honor, if you want us
10 to be follow along should we move over by the screen?
11 THE COURT: No, you can -- there should be a --
12 yes, can you look at the screen. But it's just a list and I
13 just want you to begin with, I intend to begin with --
14 All right. Let's leave it there now.
15 I intend to begin with the number, I guess it
16 would be number five. I believe that's the one. It is the
17 motion that -- the docket numbers are next to it, the motion
18 that argues that the statute is unconstitutional facially
19 and as applied on a variety of grounds, including whether it
20 ought to be limited to documents rather than oral, and so
21 forth and so on.
22 Now, I don't need to hear defense arguments
23 twice. Do you have a designated hitter as to some of these
24 arguments?
25 ATTORNEY NASSIKAS: We do, your Honor.
MICHAEL A. RODRIQUEZ, RPR/CM/RMR
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1 THE COURT: All right. Who might he be?
2 ATTORNEY LOWELL: With the Court's permission,
3 I was going to start by seeing if I could tie this list
4 together in a two- to four-minute introduction, and then
5 proceed on the same motion that you have just indicated that
6 you would like to hear first.
7 THE COURT: All right.
8 Are there any motions goes that are at issue
9 today other than those that I have listed here?
10 Let me ask Mr. DiGregory first.
11 ATTORNEY DIGREGORY: No, your Honor, I don't
12 believe so.
13 THE COURT: All right.
14 ATTORNEY LOWELL: Your Honor, if I could ask
15 the Court to further explain what item number eight is, as
16 distinct from number five.
17 THE COURT: It's Docket 157. And Docket 157, I
18 think Docket 157 is, in fact, the motion to dismiss the
19 indictment on the -- well, let me see.
20 In any event, the docket numbers reflect that.
21 And I have a list, but it doesn't have the docket numbers on
22 it.
23 Go ahead, Mr. Lowell. I take it you don't have
24 any that are not listed here. You simply see one that may
25 be duplicate.
MICHAEL A. RODRIQUEZ, RPR/CM/RMR
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1 ATTORNEY LOWELL: With your indulgence, your
2 Honor, let me just check with my cocounsels.
3 THE COURT: 157 was actually an under seal.
4 Number eight is the major motion that I want you to address.
5 ATTORNEY LOWELL: Number eight --
6 THE COURT: And five, six and seven go
7 together. Five, six and seven go together -- four, five and
8 six, I'm sorry; four, five and six. And obviously, the jury
9 selection process is different.
10 ATTORNEY LOWELL: Your Honor, I believe that
11 there are some discovery related motions having to do with
12 requests to unseal some of the FISA related material, and
13 some of the back and forth on CIPA which are not represented
14 on this. But I didn't expect them to be.
15 THE COURT: Well, those CIPA motions, I'll take
16 that up at a different time.
17 ATTORNEY LOWELL: I didn't expect those.
18 But from what I can tell, I believe you have a
19 thorough list, even more thorough than we even have at the
20 moment.
21 THE COURT: Let's proceed, then. Go ahead with
22 your precis, but let's get as promptly as we can to the
23 motion.
24 ARGUMENT BY THE DEFENDANTS
25 ATTORNEY LOWELL: Thank you, your Honor. I
MICHAEL A. RODRIQUEZ, RPR/CM/RMR
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1 will do that. But I do think it might help if I can try to
2 open the umbrella that, how these various motions on your
3 list can tie together in some way.
4 What we're going to do is only spend the time
5 you've graciously given us to highlight some aspects of each
6 motion, because you've said you don't want to hear it twice.
7 We've written it to you. So we'll just try to get to the
8 point --
9 THE COURT: Well, actually, I've read the
10 motions. I don't need to be told anything about the jury
11 selection or anything of that sort. It really is important
12 for me to hear this motion to dismiss. So as a concession
13 to the shortness of life, I think we ought to proceed to
14 that.
15 ATTORNEY LOWELL: Which is what I was intending
16 to do.
17 THE COURT: All right.
18 ATTORNEY LOWELL: We have filed and the
19 defendants have moved to dismiss the entire indictment on
20 the basis of constitutional defects that riddle the
21 superseding indictment.
22 As we did in our papers, we framed this
23 request, your Honor, to dismiss on these defects, by a
24 number of statements and legal precedence among those that
25 we thought worth repeating again was to point the Court and
MICHAEL A. RODRIQUEZ, RPR/CM/RMR
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1 the prosecutors to the statement of one of their brother
2 prosecutors, and that was Special Prosecutor Patrick
3 Fitzgerald, who was appointed, as the Court knows, for the
4 single purpose --
5 THE COURT: I'm really not much interested in
6 what other prosecutor says, if he disagrees with these.
7 That's not very authoritative. It really doesn't matter to
8 me.
9 I'm sure we can go out and do a poll of
10 lawyers, prosecutors and others and get a variety of views,
11 none of which are really of any interest to me. But there
12 were a lot things in your brief that were of interest to me.
13 That wasn't one of them.
14 ATTORNEY LOWELL: Guessing ahead to the first
15 thing that might be, would be, let me state the facts that
16 we believe this prosecution as applied, so that we're
17 operating from the same vocabulary.
18 THE COURT: You also make a facial claim, as
19 you're entitled to, because of the First Amendment aspects
20 to it. I understand that.
21 ATTORNEY LOWELL: Because of --
22 THE COURT: But let's take the "as applied."
23 The first thing you focus on is information
24 relating to national defense, that you say is
25 unconstitutionally vague in the context of verbal
MICHAEL A. RODRIQUEZ, RPR/CM/RMR
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1 information; is that right?
2 ATTORNEY LOWELL: Yes, your Honor. If you look
3 at the statute and you focus first on the words, and then,
4 if you would, I would give you a very brief recitation of
5 the facts as applied that make it unconstitutional.
6 THE COURT: All right.
7 ATTORNEY LOWELL: You have the following
8 phrases. You have in the statute the phrase, "whoever."
9 You have the phrase, "unauthorized possession." You have in
10 the phrase -- I'm sorry -- in the statute, the phrase
11 "information."
12 You have in the statute, the further phrase
13 "relating to the national" -- I'm sorry -- "relating to."
14 You have in the statute the phrase, "national defense." You
15 have in the statute the phrase, "reason to believe," could
16 be used to the, quote, "injury of the United States or to
17 the advantage of a foreign nation," and then you have the
18 willfulness standard set out.
19 You have, therefore, the retransmittal words of
20 "to any person not entitled to receive it."
21 And then you have the disjunctive, "or,"
22 "willfully retaining the same and failing to deliver it."
23 Now, there have been challenges to those words
24 in other cases, but there has never been a challenge to
25 those words in other cases where those words are being
MICHAEL A. RODRIQUEZ, RPR/CM/RMR
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1 overlaid against the following conduct, and that is conduct
2 by nongovernment official defendants engaged in the normal
3 part of their job, of First Amendment-protected lobbying
4 activity to petition the government, meeting with government
5 officials in the normal course of the government officials
6 doing their jobs, seeking or offering nothing improper in
7 return for these normal conversations, discussing foreign
8 policy issues with these government officials, neither
9 seeking nor receiving tangible documents, getting nothing
10 with clear markings indicating any national defense or
11 classification status, and then using the information they
12 obtained in the normal and regular course of their jobs,
13 talking to colleagues in their foreign policy First
14 Amendment-protected organization, cross-referencing the
15 information with journalists --
16 THE COURT: Let's assume for a moment that
17 somebody in the Defense Department, who was not in sympathy
18 with Administration policy, had information that American
19 troops were going to go in and -- some country and extract
20 somebody or do something. And this person in the Defense
21 Department thought that was not the right thing to do,
22 called up lobbyists for that country or for a related
23 country, and told them about it. Would that violate 739, or
24 7- --
25 ATTORNEY LOWELL: 793.
MICHAEL A. RODRIQUEZ, RPR/CM/RMR
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1 THE COURT: -- 793?
2 ATTORNEY LOWELL: The government official in
3 your hypothetical could certainly be prosecuted under
4 793(d).
5 THE COURT: All right.
6 And it wouldn't unconstitutionally vague as to
7 him.
8 ATTORNEY LOWELL: In the hypothetical that
9 you're saying, it would not be. Because --
10 THE COURT: All right --
11 ATTORNEY LOWELL: -- I'm assuming --
12 THE COURT: -- now let's suppose that instead
13 of him calling a lobbyist -- or let's suppose that the
14 lobbyist then passed this information on about these troop
15 movements. Would the lobbyist violate 793?
16 ATTORNEY LOWELL: Not in the facts that you've
17 just provided. There would have to be a lot more to make
18 those phrases.
19 THE COURT: What if this person is told, "This
20 is top secret stuff I'm telling you, but the troops are
21 going to do this and do that," and then he passes it on.
22 Does he violate 793?
23 ATTORNEY LOWELL: If in your hypothetical
24 you're saying that the government official gave the
25 listener, orally, something which he could define so that
MICHAEL A. RODRIQUEZ, RPR/CM/RMR
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1 the listener was aware of what precisely was the national
2 defense information, i.e., "The troops will be landing on
3 February 5th" --
4 THE COURT: No, not landing on a specific date;
5 make it that there is a planned troop movement.
6 ATTORNEY LOWELL: Okay. Keep it as just if
7 there was a linkage between the statement, "I am about to
8 tell you something that is" -- and use your hypothetical,
9 "classified. There is a plan for troops to arrive at some
10 future date."
11 And if that all that were happening at that
12 moment, it is still not possible to prosecute the listener
13 under the statute as it is defined.
14 THE COURT: Why?
15 ATTORNEY LOWELL: Five reasons.
16 Reason number one is that, to begin with, this
17 statute and this section of the statute is sought to be
18 applied to the kind of information that we are just not
19 convinced, unless you tell me -- and your hypothetical might
20 be -- that the individual was, in person, reading from a
21 document, the document was clearly that which he says it was
22 to be, classified, the listener knew that that was the case,
23 and could identify the piece of information that was so
24 classified.
25 All the other items in the statute, your Honor,
MICHAEL A. RODRIQUEZ, RPR/CM/RMR
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1 speak in terms of tangible items.
2 Second, if the listener hears somebody saying,
3 "it's classified," and doesn't know --
4 THE COURT: (Inaudible - microphone not yet
5 activated due to simultaneous speaking)
6 ATTORNEY LOWELL: -- what is classified --
7 THE COURT: -- you are mixing up two things.
8 You are now construing the statute to include only
9 documentary materials.
10 I'm not construing the statute. I'm giving you
11 a factual hypothetical and asking you whether that
12 constitutionally could be prosecuted under 739, assuming
13 that it isn't limited, as no case has yet limited it, to
14 documents.
15 ATTORNEY LOWELL: No case has limited it to
16 documents, and no case has authorized it for the kind of
17 oral conversations about which the government has brought
18 these charges.
19 THE COURT: All right.
20 I understand that's your position.
21 ATTORNEY LOWELL: Okay.
22 THE COURT: But Without being argumentative,
23 answer my question.
24 ATTORNEY LOWELL: The answer to your question
25 is the second -- the third reason why you could not
MICHAEL A. RODRIQUEZ, RPR/CM/RMR
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1 prosecute under the hypothetical, as you have provided it,
2 is that you have used the word of a government official says
3 it's classified.
4 We talk in this case about the word
5 "classified."
6 The statute talks about information related to
7 the national defense. As it turns out, not all classified
8 information is information related to the national defense.
9 And not all information related to the national defense is
10 classified.
11 So, a government official, in --
12 THE COURT: You think --
13 ATTORNEY LOWELL: -- towing the --
14 THE COURT: -- troop movement would not be, in
15 your view, a national defense information?
16 ATTORNEY LOWELL: It certainly could be. And
17 if --
18 THE COURT: (Inaudible - microphone not yet
19 activated due to simultaneous speaking)
20 ATTORNEY LOWELL: -- it was --
21 THE COURT: -- and in the other cases, clearly,
22 the Supreme Court has said: Naval installations, troop
23 movements. And that's what I have just given you.
24 There is no doubt that a troop movement is
25 precisely the kind of information since what, 60 years,
MICHAEL A. RODRIQUEZ, RPR/CM/RMR
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1 that's been understood to be included in the kind of
2 information that can't be bandied about.
3 I wanted to avoid all of this. You see, we're
4 going to get to the nub of this matter, but you seem to be
5 stopping too early --
6 ATTORNEY LOWELL: Well, I'm sorry. I can't --
7 THE COURT: -- and that --
8 ATTORNEY LOWELL: -- I can't proceed to accept
9 the premise that a phrase --
10 THE COURT: All right. Well --
11 ATTORNEY LOWELL: -- that says --
12 THE COURT: -- I will ask you to accept it,
13 because you lose on that. Now let's move on in the
14 hypothetical.
15 National defense information does include troop
16 movements.
17 What else in there would preclude prosecution,
18 other than that?
19 ATTORNEY LOWELL: If that is clearly national
20 defense information that is orally provided, you have not
21 told me why -- and we have not discussed -- why, to begin
22 with, the person listening to somebody he believes is in
23 charge of providing information that he is allowed to hear,
24 is an unauthorized person.
25 Just because he intones the word "classified,"
MICHAEL A. RODRIQUEZ, RPR/CM/RMR
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1 what we now know, and we know it --
2 THE COURT: All right.
3 ATTORNEY LOWELL: -- in spades --
4 THE COURT: Well, the hypothetical is that he
5 called somebody outside the government he knows not to be
6 cleared.
7 ATTORNEY LOWELL: You're saying that when a
8 person outside the government hears a piece of information
9 that may relate to national defense information, that alone
10 makes that person an unauthorized person. When the
11 government purposely leaks information of that nature to
12 nongovernment officials every day --
13 THE COURT: Well, that's --
14 (Simultaneous speaking)
15 ATTORNEY LOWELL: -- how does that --
16 THE COURT: -- that's --
17 ATTORNEY LOWELL: -- person know --
18 THE COURT: -- I think, a point that you have
19 made, and it's an important point. But it sort of really
20 begs the constitutional question.
21 ATTORNEY LOWELL: Well --
22 THE COURT: In any event, I understand that
23 point.
24 ATTORNEY LOWELL: If a --
25 THE COURT: I understand that you think it's
MICHAEL A. RODRIQUEZ, RPR/CM/RMR
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1 unfair that these folks have been singled out when
2 back-channel leaks and that sort of thing happen every day.
3 I understand that.
4 But that's not a fact that is necessarily -- or
5 that's not a fact that's appropriate to the strict
6 constitutional analysis. It may have something to do with
7 the fundamental fairness of the prosecution.
8 And it also, I think relates, to some extent --
9 it's clear that you want to point out that the government
10 does that, and that may well be a defense. I'll have to
11 look at that. You certainly have subpoenaed a number of
12 people with that in mind.
13 ATTORNEY LOWELL: There's an --
14 THE COURT: Or you sought to subpoena a number
15 of people with that in mind.
16 ATTORNEY LOWELL: There's an overlap on the
17 constitutional requirement of fair notice, your Honor, to
18 put a defendant in a position to clearly know when his
19 conduct crosses the line.
20 And if a person has an experience of a
21 lifetime, participating with government officials who tell
22 them the exact same quality of information, and one day the
23 government stops the music and says, "Now you've crossed the
24 line," when that has not been the experience for decades, it
25 has -- more than our defense, it has to do with one of the
MICHAEL A. RODRIQUEZ, RPR/CM/RMR
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1 areas of vagueness and overbreadth and lack of fair notice
2 in the front end of the statute.
3 THE COURT: All right.
4 ATTORNEY LOWELL: But having --
5 THE COURT: Why don't you go ahead, then --
6 forget the hypothetical. Complete your argument, and then
7 I'll hear from the government.
8 Go ahead. Complete your argument on the
9 statute.
10 ATTORNEY LOWELL: Then to take the next phrase
11 that you and I have discussed, the issue of whether or not
12 the path relates to the national defense, "has reason to
13 believe it could injure the United States," that phrase.
14 There's a disjunctive, your Honor. The
15 disjunctive says "injure the United States or assist or
16 benefit the advantage of a foreign country."
17 How can anybody apply that in a context in
18 which good foreign policy for the United States, that
19 clearly is intended to help make the United States' foreign
20 policy better, may also have a derivative impact that makes
21 it an advantage to an ally of the United States, whose
22 interest are exactly the same?
23 By being able to criminalize both halves of
24 that equation of the disjunctive, a person is still not put
25 on proper notice that his conduct crosses the line in such a
MICHAEL A. RODRIQUEZ, RPR/CM/RMR
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1 way that he can control that conduct to conform to a clearly
2 stated prescription on what is and is not allowed in the
3 very context of foreign policy debate.
4 And then lastly, when a person is saying that
5 he is not in a position to willfully pass that information
6 on, to get to the next part of the statute, what does that
7 mean in a context in which government officials routinely
8 seek the input from the very men that are on trial here to
9 get their view on foreign policy issues, not to make them
10 better informed when they go home at night and have better
11 dinner conversations with their children and spouse, but to
12 do exactly what these men are accused of doing, which is to
13 go back and talk to their colleagues, to test what they have
14 just heard among others with knowledge, and to, together,
15 find out whether the information is valid or invalid?
16 How can it possibly be that you can apply those
17 words to the conduct of these men, in a constitutionally
18 sound fair notice fashion, if they are supposed to do
19 exactly what they are asked to be doing?
20 It is not simply that we are arguing there's no
21 set of circumstances in which the passing of oral
22 information could not be a violation. That's not what we're
23 saying.
24 I mean, if somebody were reading from a
25 classified information document that was national defense,
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1 and the individual knew that, and also knew that the person
2 wasn't authorized to declassify it right --
3 THE COURT: (Inaudible - microphone not yet
4 activated due to simultaneous speaking).
5 ATTORNEY LOWELL: -- at that --
6 THE COURT: -- have to be reading from
7 something to know that you know about a troop movement or
8 you know about a particular bomb location?
9 ATTORNEY LOWELL: No.
10 THE COURT: Of course not.
11 ATTORNEY LOWELL: No. Of course not.
12 But, if, in this case, hypothetically speaking,
13 the government's cooperator was engaged in conversations
14 with any of these people about whether or not we had a
15 foreign policy dispute with the Government of Iran, and the
16 subject was, "Should we get tougher on Iran or not tougher
17 on Iran," I can dare say that that kind of statement, in its
18 own context, does not provide any sufficient basis to know
19 that there's a dispute about whether to get tough on Iran,
20 whether we should support or not support change of the
21 regime, whether that is or is not --
22 ATTORNEY REILLY: Your Honor, I have to object
23 at this point.
24 THE COURT: Yes, I understand.
25 ATTORNEY REILLY: This hypothetical has gone
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1 way too far.
2 THE COURT: I think so.
3 ATTORNEY REILLY: It's still a hypothetical?
4 ATTORNEY LOWELL: It is that.
5 (Continuing) -- or any such foreign policy
6 debate is not in the nature of troop movement.
7 If you can apply this statute to conversations
8 equally as to whether they involve troop movements, or very
9 much the issue of troops, on one hand, and whether the
10 United States should take some kind of policy against a
11 country at a much more general basis on another hand, you
12 have then seen the problem with applying these words to the
13 conduct as applied in this case.
14 So, to summarize the parsing of the statute,
15 you do have the issue in our view, your Honor, of the
16 unauthorized nature, the issue of what does relate to
17 national defense.
18 You know, General Counsel Anthony Lapham of the
19 CIA, when approaching this statute for purposes of telling
20 Congress whether or not there was a law that does or does
21 not apply to the very conduct in this case, as we put in our
22 papers, said:
23 This is a vague statute that does not apply
24 clearly to this issue. Because "relate to
25 national defense" could cover everything from the
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1 most secret plans of the government, i.e., troop
2 movements, to the daily stock exchange numbers
3 which are talked about among government agencies.
4 And therein lies the problem. When you try to
5 criminalize "relate to," "pertaining to," "information
6 about."
7 Were that not bad enough, your Honor, this
8 indictment takes it a step further. If you understand that
9 the government is supposed to charge information related to
10 the national defense, they went a step further.
11 In the indictment, they say that these men
12 engaged in conduct which was violative of the law because
13 they spoke of matters about classified information. They
14 used the word "about" in the indictment. That's not taken
15 from the statute. That's their own contraption.
16 Now, where does that provide these two people,
17 or anybody listening, with sufficient notice that if troop
18 movements is itself national defense information, and you
19 talk to a government official about whether we will ever be
20 in a position to move troops, you have violated 793.
21 And were that not bad enough, in terms of fair
22 notice, vagueness and overbreadth, the government, in their
23 superseding indictment, charges these men with violating the
24 law because they were engaged in the interchange of, quote,
25 "sensitive," end quote, information, including classified
MICHAEL A. RODRIQUEZ, RPR/CM/RMR
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1 information, is the charge in the indictment.
2 Now, we've removed from "related to national
3 defense information" to "information about," and now we've
4 moved, about what? Not national defense, not classified,
5 but "sensitive information."
6 And therein lies the charges. We didn't write
7 them. They wrote them. And that doesn't provide fair
8 notice under any standard to anybody that is trying to
9 conform their conduct as the law requires in a criminal
10 statute.
11 So, that's how I would parse the statute
12 further in the exchange.
13 You don't know, your Honor, given the
14 conduct -- what makes oral information difficult is because
15 oral information, among other things, if a person says to
16 you, "What I'm about to tell you is classified," and then
17 talks for 40 minutes, clearly not all of what he just said
18 in the remaining 40 minutes was classified.
19 In addition to which, even if he used the
20 phrase of the statute, that it relates to national defense,
21 if he actually portrayed it in that fashion, then how would
22 the individual even know then whether he was talking about
23 the front end, the middle end and the back end?
24 When you're dealing with a document, most of
25 which in proper classification has paragraphs that, by
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1 paragraph, or sometimes by sentence, detail what the level
2 of classification is, you remove the ambiguity. You remove
3 the lack of fair notice. You remove the possibility that a
4 person who says something's classified is exaggerating, is
5 trying to make himself heard more clearly, or is simply
6 wrong.
7 And that's where the oral versus written
8 information has particular meaning, and especially under the
9 scrutiny that the First Amendment requires. When these
10 aren't being done in garages, where pockets of money are
11 being exchanged, but in open, in foreign policy debates
12 between government officials and First Amendment lobbyists
13 in the mainstream of their job.
14 And that's why the distinction is very
15 important in that regard, as well.
16 To make it further complicated, in terms of
17 providing fair notice and being a constitutional violation,
18 is the notion that if you could even stop the conversation
19 at any point and be able to pinpoint what part was or was
20 not, it doesn't make sense that what the government is
21 criminalizing is a statute that says you're not supposed to
22 take it improperly and pass it on, or, you're supposed to
23 give it back when asked.
24 And how do you give back that what you heard,
25 when what you heard is in now in your mind, and you get no
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1 opportunity to remedy the problem that the statute provides
2 most individuals the opportunity to do.
3 And that's why taking these words and applying
4 it in this context would be wrong in any sense.
5 But when you try to apply it when the conduct
6 is so imbued with our First Amendment values of petitioning
7 the government, and when the activities go in the making,
8 sausage-making as it may be, of foreign policy, it creates
9 all kinds of notice issues.
10 THE COURT: So these defendants got this
11 information in order to petition the Congress in some way.
12 ATTORNEY LOWELL: Or petition -- petition the
13 Congress for sure. You cannot count on a legal pad --
14 THE COURT: (Inaudible - microphone not yet
15 activated due to simultaneous speaking).
16 ATTORNEY LOWELL: -- the number --
17 THE COURT: -- the evidence that they used that
18 information for that purpose here?
19 ATTORNEY LOWELL: In this -- I can't get into
20 details of all the things that the men on trial did with the
21 information they had. But it is certainly true --
22 THE COURT: Well, I'm just asking you whether
23 they took the information and petitioned Congress with it.
24 ATTORNEY LOWELL: This information, they did
25 not petition the Congress, but they petitioned other people
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1 in the Executive Branch. The "petition the government" is
2 petition the government. That phrase is not "petitioning
3 the United States Congress." You are allowed to interface
4 with State Department, the Department of Defense, the
5 National Security Council, the Executive Branch, as well as
6 the United States Congress.
7 And when information from one hand of the
8 government is provided to these individuals, so that they
9 are better informed, they are, in fact --
10 THE COURT: Without answering fully, this
11 question, is that all they did with the information, namely
12 to petition the government?
13 ATTORNEY LOWELL: No. But the -- no. The
14 allegations in the indictment are that they shared this
15 information with journalists, and they also shared it with
16 officials of a foreign country.
17 But that is in the process of petitioning the
18 government. This foreign policy organization, like so, so
19 many others, don't just provide the United States Government
20 with information that they obtained from their own heads.
21 They search and they provide information from what they hear
22 from journalists, what they hear from foreign officials who
23 are allies, what they hear from others who have information
24 on the same subject. And the result is a better foreign
25 policy of the United States.
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1 THE COURT: All right.
2 I think much of what you've said may suggest
3 how, may go to the merits of writing another statute or a
4 different statute.
5 Some of the points you make go to the heart of
6 the issues you've raised.
7 Let met hear from the government on -- do you
8 have anything else on the constitutionality?
9 ATTORNEY LOWELL: Three more quick points,
10 but --
11 THE COURT: All right.
12 ATTORNEY LOWELL: I know you've read them, but
13 let me make sure I say them out loud. And it won't take but
14 two more minutes.
15 The first is, I have addressed the vagueness
16 and the overbreadth from a point of view of a neutral
17 situation. You know, and have stated yourself, that when
18 you filter those words through the extra scrutiny the Court
19 is supposed to apply in a First Amendment, it requires the
20 most ability of the government to justify how their conduct
21 to criminalize something meets with the robust debate that
22 the First Amendment protects.
23 The government, in one of its briefs, sought to
24 distinguish among the clauses of the First Amendment by
25 saying: Well, this would raise some novel issues if applied
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1 to the press, but we don't have the press here.
2 The First Amendment does not so qualify freedom
3 of speech, freedom of petitioning the government, and
4 freedom of the press. They are all on equal footing. And
5 so has the Supreme Court held.
6 So you can't say: Well, this is constitutional
7 as applied to lobbyists, but it wouldn't be constitutional
8 if applied to journalists.
9 The next point is -- and we point the Court,
10 because of the challenge both on its face and -- and the on
11 its face statute, the request, goes because the Supreme
12 Court decided the Bartnicki case between the time that this
13 statute was scrutinized for First Amendment values and the
14 present time.
15 And we think that adds impetus for the Court
16 both on its face and as applied. Because the analogy of the
17 facts of that case, as you see, are by no means anything but
18 a millimeter apart: Improper, illegally-obtained
19 information that was given to individuals in the middle, who
20 passed it on to the press, and both were sued under the law
21 for that passing on.
22 And the Supreme Court said: It can't be done.
23 It doesn't matter that the information was illegally
24 disclosed to you in the first place. Your passing it on is
25 a protected activity in the context of the facts of that
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1 case.
2 The First Amendment values, by these men
3 working on foreign policy through their organization, APAC,
4 is ten times stronger than any of the values of the union
5 dispute in that particular matter in the Bartnicki case.
6 And lastly, on the constitutional grounds.
7 When you have that vagueness and overbreadth, through the
8 filter of the First Amendment, you end with the potential of
9 what the Courts have also ruled is absolutely the protection
10 that we have to insist on, which is that it gives the
11 government too much power to be arbitrary in their selection
12 of who is going to get applied these vague and imprecise
13 terms.
14 And the arbitrariness is patent from the face
15 of the indictment itself. People think that this is a case
16 about one individual that has been identified as Larry
17 Franklin. The indictment speaks of two other government
18 officials, USGO1 and USGO2. The indictment says that they,
19 just like Larry Franklin, provided improper information to
20 these two defendants, who did exactly the same with it as
21 they are alleged to have done with Larry Franklin.
22 These two individuals, who are identified in
23 the indictment, are not charged. If you believe the press,
24 who has identified them, they have been promoted in their
25 jobs in the government.
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1 And it just shows you the anomaly of being able
2 to either say that these men did something wrong and they
3 get to continue in their jobs, including the most sensitive
4 national defense information on the planet, in the most
5 sensitive place on the planet, and these two men get
6 prosecuted as felons for doing no more than they did with
7 these two other government officials.
8 There may be good reason for that distinction,
9 but it shows the arbitrariness that is allowed to occur when
10 vague and imprecise terms are applied to conduct, especially
11 conduct that doesn't -- that isn't viewed with the First
12 Amendment.
13 And finally, we don't have to get there, your
14 Honor. And that's where I started before, but let me
15 conclude.
16 There is no requirement that this is a statute
17 that is supposed to, or was intended to, apply to the
18 conduct that it is seeking to be applied to.
19 And I know you said that that is a different
20 type of argument, but I conclude with it because we don't
21 have to get to this constitutional confrontation. It should
22 have not -- it's not a coincidence that from 1917 to the
23 present, there has never been such a prosecution.
24 It's not a coincidence that every time Congress
25 has been given the chance to amend the statue to make it
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1 clear that it's trying to get to people in the positions of
2 Mr. Rosen and Mr. Weissman, they have refused to do so,
3 except on one occasion in 2000, when the President of the
4 United States vetoed the attempt to do so. And that veto
5 wasn't attempted to be overridden.
6 It's not a coincidence that the words of the
7 statute speak in tangible items, and the conduct here is
8 oral.
9 It's not a coincidence that there are other
10 parts of the statute that speak in those terms, to apply it.
11 And it's not a coincidence that this statute, which speaks
12 in phrases like "related to," et cetera, stands next to a
13 statute that the government could apply with no effect on
14 their attempt to prosecute national security violations.
15 Because if you have somebody in your
16 hypothetical that did what you said for the purposes that
17 you said, then that person could be prosecuted under 794, or
18 under some other statute, about his or on her status as a
19 foreign agent.
20 That is the proper way to go about when you're
21 saying that somebody's motives are as our hypothetical
22 intended them to be.
23 But when they are simply the acts of these men,
24 as recounted in the indictment, this is not the statute that
25 should be applied. We didn't have to get there.
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1 And so consequently, while it is noble for the
2 government to try to protect secrets, and do so by going
3 after those entrusted with the duty to do so, they take it
4 an inch or a foot or a yard too far, and they do so in
5 as-applied basis, they have gone too far. And national
6 security interests don't give them the right to vitiate
7 other aspects of the Constitution that are of equal footing
8 and equally important to the fair administration of justice.
9 THE COURT: All right.
10 Mr. DiGregory.
11 ARGUMENT BY THE GOVERNMENT
12 ATTORNEY DIGREGORY: In the first instance,
13 this case is not about the First Amendment. These
14 defendants are not members of the media --
15 THE COURT: Well, it is --
16 ATTORNEY DIGREGORY: -- nor --
17 THE COURT: -- about the First Amendment in the
18 sense that they get, do they not, under well-settled law,
19 they certainly get to argue about overbreadth, even though
20 they may not prevail on "as applied," they get -- or they
21 may. But it's clear under the law that an overbreadth --
22 overbroad statutes can chill protected speech of others.
23 And therefore, the -- they get to argue both "as applied"
24 and "overbreadth."
25 ATTORNEY DIGREGORY: And the key to what you
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1 say, your Honor, is that a statute --
2 THE COURT: That the statement is overbroad.
3 ATTORNEY DIGREGORY: -- is that it can chill --
4 an overbroad statute can chill protected speech.
5 But what this case is about is not about
6 protected speech. It's not about the legitimate lobbying
7 activities that these defendants may have engaged in, but
8 it's about their agreeing with each other, and others, to
9 violate criminal statutes of this country, most
10 specifically, criminal statutes dealing with the disclosure
11 of classified national defense information. That speech is
12 not protected.
13 And though they seek to rely on Bartnicki, the
14 interests in Bartnicki weren't anywhere close to the
15 interests of this case and the interests in the government
16 in protecting the national security of this nation.
17 The interest in Bartnicki was the privacy
18 interest of someone whose conversation, who was -- someone
19 whose conversation was intercepted, who was engaging in a
20 plot perhaps to hurt some officials who disagreed with the
21 position that he took in a union dispute. Bartnicki is
22 inapposite to this case; doesn't apply.
23 THE COURT: What do you say to the basic
24 contention that "national defense information" is fatally
25 vague?
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1 ATTORNEY DIGREGORY: It's not fatally vague,
2 your Honor. And that was cleared up, I think, years ago in
3 Goren, and in subsequent cases that have been brought
4 before -- before this Court, in fact. And it's a concept
5 which is readily understandable, I think as the Court has
6 pointed out earlier in its discussions with Mr. Lowell.
7 THE COURT: Suppose there was top secret
8 information floating around back in, let's say, 1957, having
9 to do with our knowledge of what the Soviet Union was doing
10 with Sputnik, was never declassified. Somebody passes that
11 on from the government today. Is that national defense
12 information?
13 ATTORNEY DIGREGORY: If it is not information
14 related to our national preparedness, then, no, you Honor,
15 it's not.
16 THE COURT: The word "classified" doesn't
17 appear in 793.
18 ATTORNEY DIGREGORY: No, it does not, sir.
19 THE COURT: Well, what do you say to
20 Mr. Lowell's argument that that term -- he ties it together
21 with other terms, but I think that doesn't trouble me very
22 much. What troubles me is the term itself, "national
23 defense information."
24 It's possible to see a core meaning for it,
25 that it would clearly not trouble anybody, troop movements,
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1 military installations, information relating to code
2 breaking ability of this country. Those are the things that
3 Goren and subsequent case have made clear are national
4 defense information.
5 But what are the limits? Where are the
6 boundaries?
7 ATTORNEY DIGREGORY: There are limits, your
8 Honor.
9 However, as was pointed out in Goren and
10 subsequent cases, it is a very broad term, and it is a term
11 which can be applied to anything related to our national
12 preparedness.
13 THE COURT: Well, I think your answer would be,
14 in part, that "national defense information," that should be
15 only an "as applied" attack, not as an "overbroad"?
16 ATTORNEY DIGREGORY: Well -- yes.
17 THE COURT: Well, but they're entitled to make
18 the overbreadth argument, too.
19 Let's go on --
20 ATTORNEY DIGREGORY: Well, if I may, your
21 Honor --
22 THE COURT: Yes.
23 ATTORNEY DIGREGORY: -- to continue to address
24 your overbreadth argument, an argument was -- this was
25 addressed, to some extent, in the Troung case. And I want
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1 to talk about the Troung case for another reason.
2 Mr. Lowell has alleged that the Troung case
3 that was tried in this building by Justin Williams, your
4 Honor, was a case in which a person who was not a United
5 States citizen was prosecuted for several violations of the
6 criminal code, including violations of conspiring to commit
7 794(a) and (c) and violation of 793(e) and Subsection (2).
8 What Troung was about was a non-U.S. citizen
9 who had a keen interest in the policy of the United States
10 towards Vietnam, and a keen interest in the relationship
11 between the United States and Vietnam.
12 Troung struck up a friendship with an employee
13 of the United States Information Agency. Troung collected,
14 procured from that friend with the United States Information
15 Agency, national defense information that he later passed on
16 to someone who he believed was associated with the North
17 Vietnamese Government's representatives at the Paris peace
18 talks back in 1977, I believe it was.
19 That person, unbeknownst to him, was an FBI
20 agent. Troung tried to claim, in his arguments to the
21 court, that --
22 THE COURT: I don't think it would be '77. Do
23 you?
24 ATTORNEY DIGREGORY: It might have been earlier
25 about that. But I thought the case said '77.
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1 THE COURT: You may be right.
2 ATTORNEY DIGREGORY: I think it does say '77.
3 But in --
4 THE COURT: All right. Go on.
5 ATTORNEY DIGREGORY: -- any event, your Honor.
6 But Troung was a case in which Troung tried to
7 claim, he tried to claim that he should not, he should not
8 be subjected to the same standards, if you will, as a
9 government employee, in evaluating whether or not he was on
10 notice and could have committed the offenses he was charged
11 with.
12 Troung argues, says the court at page 919 --
13 the cite to the case is 629 F. 2nd 908.
14 Troung argues that he cannot be bound by the
15 classification system because he wasn't a government employ.
16 He can't hide behind the civilian status when he encouraged
17 the government employee to copy classified documents.
18 Now, I know there are not copies of classified
19 documents here that we are talking about, your Honor, but we
20 are talking about a case --
21 THE COURT: Mr. Lowell --
22 ATTORNEY DIGREGORY: -- where the defendants --
23 ATTORNEY LOWELL: Yes, sir.
24 THE COURT: -- you must remain dispassionate.
25 Grimaces, gesticulations are not to be tolerated.
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1 ATTORNEY LOWELL: Yes, sir.
2 THE COURT: It's rude. It interrupts the
3 speaker, and it often has the opposite effect you might
4 expect it to have.
5 So don't do it. Remain dispassionate.
6 ATTORNEY LOWELL: Yes, sir.
7 THE COURT: I was never able to do it when I
8 practiced, but I don't brook any exceptions now. My
9 perspective is different.
10 ATTORNEY DIGREGORY: Thank you, your Honor.
11 But I didn't even notice.
12 In any event, your Honor, Troung tried to
13 suggest that because he wasn't a government employee, any --
14 the statute shouldn't be applied to him because he couldn't
15 have been able to understand the classification system.
16 I would suggest to the Court that Troung and
17 other cases dealing with the concept of national information
18 should be read by the Court as to suggest that they apply to
19 these defendants.
20 THE COURT: With respect to Mr. Lowell's point,
21 he makes the point that: Look, how can a person who is not
22 told -- these people weren't told, "Don't pass this on."
23 Indeed, they argue, and I think without -- or with some
24 basis, that's the purpose they were given the information,
25 is so that they would pass it on, and that it happens every
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1 day in Washington.
2 ATTORNEY DIGREGORY: Well, whether or not it
3 happens every day in Washington is of no moment to us, your
4 Honor.
5 THE COURT: I think that's a fair comment, but
6 nonetheless it's -- I think it goes by the word
7 back-channel.
8 But in any event, what he asks is: How are the
9 defendants to know that they're not to pass it on?
10 And if the statute says that "the unauthorized
11 possession of it," they can't pass it on, retention is
12 illegal, too, isn't it?
13 ATTORNEY DIGREGORY: It is.
14 THE COURT: Well, what are they supposed to do,
15 have a lobotomy?
16 How are they to get rid of the knowledge --
17 ATTORNEY DIGREGORY -- Well, your Honor,
18 retention --
19 THE COURT: -- if it's orally --
20 ATTORNEY DIGREGORY: -- The re- --
21 THE COURT: -- transmitted?
22 ATTORNEY DIGREGORY: Your Honor, the
23 retention -- the retention section of the statute is but one
24 section of the statute. And your Honor, as we argued in our
25 pleading, we believe that the statute applies -- or the
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1 statutes apply to the disclose- -- to oral disclosures of
2 information.
3 The word "information" is not exclusive to
4 words that are written down. In fact, as we argued in our
5 pleading, it would be absurd to suggest that someone could
6 pass a document at a luncheon meeting, and yet not
7 communicate information from that document by looking at it,
8 reading it, and telling the person sitting across from the
9 table what was in the document.
10 Nor, your Honor, to carry it a step further --
11 it would also be absurd to suggest that someone who read the
12 document, memorized the document or memorized parts of the
13 document, and presented parts of that document and presented
14 parts of that document to the person with whom he was having
15 lunch, if that document contained classified information
16 would not be prosecutable if that person later turned around
17 and disclosed that information.
18 And to the points that he was making about how
19 was the defendant to know, I would suggest to the Court that
20 these questions are not questions to be addressed in the
21 context of assessing the constitutionality of the statute,
22 as applied to these defendants, but these are questions of
23 fact for the jury to determine.
24 It will be for the jury to determine whether or
25 not the defendants knew, knew that they entered into an
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1 agreement, entered into an agreement to gather and
2 disseminate classified information, or national defense
3 information, and whether or not the information that they
4 obtained was, indeed, national -- national defense
5 information.
6 It will be up to the jury to make a
7 determination about whether or not the persons to whom they
8 passed on this information, once receiving it -- assuming
9 that they knew it was national defense information -- were
10 persons who were not entitled to receive it.
11 Those are questions of fact. Those are not
12 questions regarding the constitutionality of the statute as
13 applied to these defendants.
14 THE COURT: Suppose a government official calls
15 up a lobbyist or a journalist and says, "Look, there's going
16 to be a big story coming out of the Department of Defense
17 this weekend." Would that violate the statute?
18 ATTORNEY DIGREGORY: If a lobbyist or a
19 journalist called up the Defense Department and asked the
20 question --
21 THE COURT: No, no.
22 ATTORNEY DIGREGORY: I'm sorry.
23 THE COURT: If a Defense Department person
24 called up a lobbyist or a journalist and said, "Look,
25 there's going to be a big story out of DOD this weekend."
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1 ATTORNEY DIGREGORY: That, in and of itself,
2 doesn't seem to be anything that would violate the statute.
3 There's nothing in your facts that suggests --
4 THE COURT: (Inaudible - microphone not yet
5 activated due to simultaneous speaking).
6 ATTORNEY DIGREGORY: -- that national defense
7 is passed.
8 THE COURT: -- Defense person says, "A big
9 story is going to come out this weekend that relates to the
10 Country X and military operations with respect to Country
11 X."
12 ATTORNEY DIGREGORY: It would depend upon the
13 information. And if the information was deemed by the
14 persons owning that information, an intelligence agency, the
15 Defense Department, the State Department, whoever generated
16 the information, that it were national defense
17 information --
18 THE COURT: How can a --
19 ATTORNEY DIGREGORY: -- then perhaps --
20 THE COURT: How can a defendant, a potential
21 defendant, trying to decide whether or not he's stepping
22 across the line, determine when -- what information is
23 national defense information, and when it isn't?
24 ATTORNEY DIGREGORY: It all depends upon the
25 facts, your Honor. It all depends upon the information that
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1 is imparted to him, and what he can garner from that
2 information.
3 And it also depends upon the practice of the
4 individual --
5 THE COURT: (Inaudible - microphone not yet
6 activated due to simultaneous speaking).
7 ATTORNEY DIGREGORY: -- if he is engaged in --
8 THE COURT: -- agree though, don't you -- you
9 agree though, don't you, that the statute is required under
10 due process to provide fair notice?
11 ATTORNEY DIGREGORY: Yes, sir.
12 THE COURT: So tell me why the term "national
13 defense information" is sufficiently explicit to provide
14 fair notice that if you traffic in that, you're are going to
15 run afoul of 793?
16 ATTORNEY DIGREGORY: One of the things that the
17 courts have said in discussing national defense information,
18 and in discussing whether or not, as applied to anyone, that
19 concept is impermissibly vague, they discussed the burden of
20 proof upon the government and the scienter requirement that
21 exists in the situate.
22 The statute requires that the person who has
23 acquired and disseminated national defense information, act
24 willfully; willful misconduct.
25 That scienter requirement, your Honor, saves
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1 the statute from any, any, I would submit, any challenge as
2 to the vagueness of the statute with regard to any of its
3 elements, including the element of national defense
4 information.
5 THE COURT: What do you -- what do you say to
6 Mr. Lowell's point that the First Amendment is implicated
7 because these persons are seeking to petition the
8 government, various aspects of it, with this information
9 that was given to them by a government official for that
10 purpose, presumably. Why isn't that First Amendment
11 protected activity?
12 ATTORNEY DIGREGORY: I think that what
13 Mr. Lowell is talking about, again, is a question of fact
14 for the jury to determine.
15 What we have alleged in our indictment, your
16 Honor, is not First Amendment protected activity. What we
17 have alleged is that these two men conspired with persons,
18 known and unknown, they conspired to gather and disseminate
19 national defense information. And we have alleged that they
20 have done so, and communicated that information to persons
21 not entitled to receive it.
22 THE COURT: All right. I know what you've
23 alleged.
24 Is it right that in construing the
25 constitutionality of this statute -- what do you think the
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1 standard is?
2 Does it have to be narrowly tailored?
3 Is it strict scrutiny.
4 ATTORNEY DIGREGORY: I don't think it's strict
5 scrutiny, your Honor.
6 THE COURT: Well, what is the standard you
7 think applies to assessing the constitutional validity of
8 this statute?
9 (Pause)
10 THE COURT: Why isn't it subject to strict
11 scrutiny, in other words?
12 ATTORNEY DIGREGORY: May I have a moment, your
13 Honor?
14 THE COURT: Yes.
15 (Counsel conferring)
16 ATTORNEY DIGREGORY: Your Honor, we believe the
17 United States versus Goren addresses this issue. I'm trying
18 to find a particular passage in the case that does so.
19 But in short, we're not talking about protected
20 speech in this case. What we're talking about is conduct,
21 not speech.
22 Therefore --
23 THE COURT: Does it make any difference to you
24 if, instead of these defendants, it had been reporters for
25 the Washington Post and the Washington Times?
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1 ATTORNEY DIGREGORY: Interesting question, your
2 Honor. And I think that, as we said in our pleading --
3 THE COURT: Isn't that the Pentagon Papers?
4 ATTORNEY DIGREGORY: Well, no, that's not
5 Pentagon Papers, your Honor. And it's not, because Pentagon
6 Papers was a case about prior restraint. It's not a case
7 about criminal prosecution.
8 THE COURT: All right. Go on. Forget the
9 Pentagon Papers' reference. You're correct. It was about
10 prior restraint.
11 But nonetheless, what's the answer to my
12 hypothetical? Suppose these two defendants had been
13 reporters for a newspaper.
14 ATTORNEY DIGREGORY: It all depends, your
15 Honor, on what the facts are in any given situation.
16 But as we said in our pleading, we would have
17 to carefully scrutinize whether or not, whether or not there
18 was -- because of the media being involved, we would have to
19 carefully scrutinize whether or not the statute was actually
20 violated, whether or not there was any willfulness shown on
21 the part of the actors in engaging in the conduct that they
22 engaged in. And we would do that with respect to any case,
23 just as we have done in this case, your Honor.
24 THE COURT: Let me ask you two further
25 questions along this line.
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1 Tell me again why you argue that Bartnicki is
2 distinguishable.
3 ATTORNEY DIGREGORY: Bartnicki is
4 distinguishable in the first instance because it doesn't
5 deal with the national security interests of the United
6 States.
7 In the second -- and it deals with an
8 individual's right to privacy, an individual who, oh, by the
9 way, was engaged in the telephone conversation about hurting
10 other individuals who didn't agree with him. Okay?
11 And secondly, Bartnicki is a case in which
12 there is no implication whatsoever of the person who, who
13 eventually broadcasted the tape-recorded conversation, nor
14 the person who obtained the tape-recorded conversation in
15 any illegality.
16 That's different from this case, your Honor,
17 because of what we've alleged in this case. And we'll have
18 to be put to our proof, but what we've alleged in this case
19 is that these defendants, together with other individuals
20 known and unknown, including Lawrence Anthony Franklin,
21 actively decided, agreed, that they were going to gather
22 national defense information and disseminate it.
23 They engaged in illegal conduct. And that's
24 another reason why Bartnicki does not apply to them.
25 THE COURT: Well, you -- let me go back to the
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1 question I asked you, which is whether a prosecution of
2 members of the press would be different from prosecution of
3 members of a foreign policy lobbying organization.
4 Why would it be any different?
5 ATTORNEY DIGREGORY: I'm not -- I think that
6 because of the function that the media serves in this
7 country --
8 THE COURT: So you're --
9 (Simultaneous speaking)
10 ATTORNEY DIGREGORY: -- we would have to be --
11 THE COURT: -- taking a position --
12 ATTORNEY DIGREGORY: -- we would have to
13 carefully scrutinize whether or not we would take action.
14 And of course --
15 THE COURT: So you're taking --
16 (Simultaneous speaking)
17 ATTORNEY DIGREGORY: -- as with any --
18 THE COURT: -- a position now diametrically
19 opposed to Mr. Lowell's argument that there isn't a
20 hierarchy of values in the First Amendment. All First
21 Amendment -- all First Amendment rights are of the same
22 stature.
23 ATTORNEY DIGREGORY: Not at all, sir. The
24 position that I'm taking is one that has to do with the
25 exercise of prosecutorial discretion, and what kinds of
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1 things we would consider in exercising that discretion.
2 THE COURT: There are comments in the Pentagon
3 Papers, New York Times case about 793(e).
4 ATTORNEY DIGREGORY: Yes, sir.
5 THE COURT: You're familiar with that?
6 ATTORNEY DIGREGORY: Yes, sir. I'm sorry.
7 THE COURT: Are those to be ignored?
8 Are they mere dicta or --
9 ATTORNEY DIGREGORY: I'm not -- and if the
10 comments of which the Court speaks are those comments made
11 by Justices White and Justice -- Justices White and Stewart,
12 no, they're not comments to be ignored.
13 All the justices were simply saying that if you
14 look at the statute on its face, it plainly applies to
15 journalists.
16 And that's all we said in our pleading, was
17 that 35 years ago, two very brilliant Supreme Court justices
18 decided to take a look at that statute, and said that that
19 statute on its face plainly applies to anyone, to anyone,
20 whoever, whoever engages in the criminal conduct that is
21 laid out in the statute.
22 THE COURT: I take it you would agree that even
23 if this statute were constitutional, as applied to these
24 defendants, they still are entitled to raise an overbreadth
25 argument, that is, that it would have unconstitutional
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1 application if it were applied -- if it could be, be by its
2 terms, applied in some other context because of the First
3 Amendment considerations?
4 In other words, it's an established doctrine in
5 constitutional law that typically you may not go beyond an
6 as-applied context. Courts don't consider overbreadth
7 arguments in context unless they're First Amendment. And
8 that's set out in a number of cases.
9 So, here, wouldn't you agree that these
10 defendants, in this context, are able to raise not only
11 as-applied claims, which they have, but also the overbreadth
12 claim?
13 ATTORNEY DIGREGORY: They've raised it, your
14 Honor, but I --
15 THE COURT: Facially overbreadth.
16 ATTORNEY DIGREGORY: -- don't think -- but I
17 don't think that they -- that the Court should consider that
18 they've successfully raised the claim.
19 THE COURT: Why not?
20 ATTORNEY DIGREGORY: It's not overly broad,
21 your Honor, because what the statute -- what the statute in
22 its -- what the statute in its application would do, would
23 punish willful criminal conduct. It's not about speech.
24 It's about conduct.
25 THE COURT: Well, how many retransmissions
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1 would it apply to?
2 In other words, let's suppose that these people
3 passed it on, then somebody else passed it on, and so forth
4 and so on. Would it continue to apply ad infinitum?
5 ATTORNEY DIGREGORY: I think -- of course, all
6 of us, I guess, are familiar -- well, that's a difficult
7 question to answer in the abstract, your Honor. It would
8 all depend upon the evidence that the government could bring
9 to bear; again, evidence of willful criminal conduct.
10 THE COURT: Let's come back to the first
11 question I asked, which is: What is the standard?
12 Have you found in Goren yet where the standard
13 is not strict scrutiny?
14 ATTORNEY DIGREGORY: I got sidetracked. If I
15 may have a moment, your Honor.
16 THE COURT: All right, you may.
17 ATTORNEY DIGREGORY: Thank you, sir.
18 (Pause)
19 THE COURT: And Mr. Lowell, you should be
20 looking and be prepared to tell me why you think it is
21 not -- or it is strict scrutiny, because that's clearly a
22 very important threshold and an analytical point. That
23 directs the analysis, is whether it's strict scrutiny or
24 not.
25 (Pause)
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1 THE COURT: I'm also -- while you're looking,
2 I'm going to want you, Mr. DiGregory, to tell me, as
3 succinctly as you can, both as a textual matter and as a
4 constitutional matter, why this statute is not restricted to
5 documentary information; that is, information in documents
6 or tapes or whatever. Why the oral transmission is
7 included, both as a textual matter, using the Latin maxims
8 of ejusdem generis, or the other one I can't pronounce,
9 whatever it is, definition by association.
10 In other words, the argument is made that all
11 of the other matters that are in the statute relate to
12 tangible information. Therefore, national defense
13 information should be limited to tangible manifestations of
14 it. That is the textual matter.
15 Now, also I want you to address why it isn't
16 necessary to construe it that way constitutionally. But
17 before I can know that, you've got to tell me whether it's
18 strict scrutiny or not.
19 ATTORNEY DIGREGORY: While Mr. Reilly looks for
20 that, in the interest of time, I'll try to address the Court
21 on the textual matter.
22 THE COURT: All right.
23 ATTORNEY DIGREGORY: I think before you look --
24 and I think while looking at the statute, in context, and in
25 looking at the word "information," and in looking at
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1 regulations that were promulgated by a commission
2 established by the Congress, there's some guidance.
3 If you look at the word "information" and you
4 look at definition of the word "information," that
5 definition is not restricted to the written word or a
6 document. Okay?
7 If you look at the statute itself, and you look
8 at the -- at information related to the national defense,
9 everything else is a document.
10 I would submit -- or is a document or data or
11 something tangible that you can get your hands on.
12 I would argue to the Court that, contextually,
13 that means that Congress intended to punish oral
14 dissemination of information related to the national
15 defense, and applied the reason to believe standard when the
16 communication was oral.
17 If you look at the sentencing guidelines -- and
18 I don't have the cite to the particular provision, but we
19 cited it in our pleading, the sentencing guidelines call,
20 when there's transmission of information related to the
21 national defense, as opposed to documents, data, et cetera,
22 the sentencing guidelines call for an enhanced penalty when
23 that occurs.
24 So I think the sentencing guidelines, as well,
25 suggest that the word "information" is intended to include
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1 oral transmissions of classified information.
2 That's --
3 THE COURT: All right.
4 ATTORNEY DIGREGORY: -- textually.
5 THE COURT: Have you found your support or the
6 basis on which you contend strict scrutiny doesn't apply?
7 (Pause)
8 THE COURT: And then I'm going to ask you what
9 standard does apply. And then I'm going to ask you if
10 strict scrutiny applies, what result you think follows from
11 that.
12 (Pause)
13 THE COURT: And then, Mr. Lowell, I will give
14 you an opportunity, unfettered, to respond to what Mr.
15 DiGregory has said.
16 And then I'm going to take a recess.
17 (Pause)
18 ATTORNEY DIGREGORY: May I confer?
19 THE COURT: Yes, you may confer.
20 ATTORNEY DIGREGORY: Thank you.
21 THE COURT: If you need a few minutes, I will
22 take a recess now. Would that be helpful?
23 ATTORNEY DIGREGORY: That would be, your Honor,
24 if you wouldn't --
25 THE COURT: All right.
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1 ATTORNEY DIGREGORY: -- mind. Thank you, your
2 Honor.
3 THE COURT: What I will do is take a recess
4 now.
5 You all can confer, as well.
6 What I intend to find out, or probe, is what is
7 the standard. I want you each to address that.
8 And then, Mr. Lowell, I want you to have an
9 opportunity to address all of the things that he's said, if
10 you wish --
11 ATTORNEY LOWELL: I appreciate that.
12 THE COURT: -- in a focused way. And then I
13 will have heard what I need to hear, profitably, about this
14 particular motion, which obviously I consider to be a very
15 important motion.
16 Court stands in recess for ten minutes.
17 (Court recessed at 2:33 p.m.)
18 (Court called to order at 3:03.)
19 THE COURT: All right. Before, I go back and
20 get an answer, let me set the stage, because I'm only going
21 to hear the parties a bit more on this, and then deal with
22 some other matters. This is clearly a very important
23 motion. I'm going to set the stage a little bit.
24 In general -- and I know I'm not doing it in
25 the detail -- and I may have things wrong. I understand
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1 that. I haven't fully resolved this. And you'll have a
2 chance to correct me.
3 But in general, there are three constitutional
4 attacks, as I see them. There is a void for vagueness, as
5 applied, attack.
6 There is an overbreadth facial attack.
7 And there is an overly broad, as applied, I
8 think, is the way I would put it, which itself is a First
9 Amendment attack.
10 Now, the reason I've spent so much time on
11 asking what is the standard -- you said you were going to
12 look in Goren. Well, of course, Goren wasn't a First
13 Amendment case. It was a conduct case. It's very
14 important.
15 In fact, Mr. Lowell argues repeatedly: You
16 know -- he didn't say this explicitly, but this is what it
17 is: If the statute were construed to be limited to tangible
18 objects, no First Amendment analysis would be appropriate.
19 Then you would be in the Goren regime, as it were.
20 Whether -- and of course, at least as to one
21 count, if not both, that would be the end of the matter.
22 But anyway, the overbreadth argument is, as a
23 facial matter, is, I think, a First Amendment analysis,
24 which requires strict scrutiny. I think.
25 The First Amendment attack, the separate
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1 vagueness First Amendment attack, is, maybe, strict
2 scrutiny.
3 Now, the void for vagueness as applied
4 attack -- or not void for vagueness, but excessively vague,
5 is the fair warning issue; that is, the Lanier case -- I
6 think it's Lanier. Yes, it's the Lanier case that sets out
7 the standard there.
8 And that's the case in which, on the As-applied
9 Vagueness Doctrine, would have this Court ask whether this
10 statute, as applied here, requires -- or forbids the doing
11 of an act in terms that -- so vague that men of common
12 intelligence necessarily must guess at its meaning and
13 differ as to its application.
14 That's a very hard standard to apply. It
15 sounds right. It sounds noble. But I'm always reminded of
16 the judgments that people have to make about obscenity. And
17 indeed, I've written about that subject.
18 The First Amendment, I think I said somewhere
19 in the opinion, requires that you be thick-skinned and take
20 chances, because there is no sharp line between what is
21 merely pornographic and what is obscene and not protected by
22 the First Amendment, except perhaps in the child area.
23 Otherwise, you know, these issues are presented
24 to a jury and they are a matter of local standards.
25 That hardly squares with the Lanier standard.
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1 But then we live in an imperfect world, and the Supreme
2 Court can divide up the world as it sees fit.
3 But we have the Lanier standard, I think, and
4 this Court, for the vagueness attack, has to ask whether the
5 statute forbids the doing of an act in terms so vague that
6 men of common intelligence must necessarily guess at its
7 meaning and differ as to its application.
8 And the requirement is one of fair warning by
9 resolving ambiguities to apply only to conduct clearly
10 covered. And also, due process bars courts from applying a
11 novel construction of a criminal statute to conduct that
12 neither the statute nor any prior judicial decision has
13 fairly disclosed to be within its scope.
14 That's Lanier.
15 Frankly, Mr. DiGregory, your response to all of
16 that argument was contained in less than a couple or two or
17 three pages of your consolidated response; not very much.
18 It's a very difficult standard to apply. I don't have any
19 doubt that reasonable judges could disagree, all the way up
20 to and including the Supreme Court.
21 Now, the other standard -- this is why I have
22 harped a lot on strict scrutiny, and Mr. Lowell's argument,
23 not explicit, but I think implicit, that: Look, if you just
24 construe this statute as applying only to tangible objects,
25 you get rid of the whole strict scrutiny issue. You get rid
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1 of all First Amendment.
2 And of course, he doesn't have to go on to add
3 this, but it certainly gets rid of at least Count 1. And
4 whether or not it then thereafter is void for vagueness, I
5 don't think Mr. Lowell cares, as long as he gets that.
6 So, that is a significant, significant problem.
7 And there is a textual argument, anyway, quite
8 apart from the constitutional argument. I mean, I have to
9 decide that issue. It isn't that I don't have the luxury.
10 I have to decide whether, textually, it applies. Because if
11 textually it doesn't apply, then I don't have to reach any
12 question.
13 Now, are you prepared to tell me whether it's
14 First Amendment strict scrutiny with respect to the facial
15 overbreadth challenge, with respect to the First Amendment
16 challenge, as applied?
17 ATTORNEY DIGREGORY: We don't believe that the
18 standard is strict scrutiny, your Honor. And we don't
19 believe that it's strict scrutiny, because every court that
20 has considered an overbreadth challenge to this statute has
21 decided that the statute is not fatally overbroad.
22 THE COURT: When you say "every court," we know
23 that -- what was it, Troung?
24 ATTORNEY DIGREGORY: Troung, Morrissey.
25 THE COURT: Those were documents, tangible,
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1 right?
2 ATTORNEY DIGREGORY: Yes, sir.
3 THE COURT: Morrissey, tangible documents,
4 right?
5 ATTORNEY DIGREGORY: Yes.
6 THE COURT: Goren, tangible documents, right?
7 ATTORNEY DIGREGORY: Yes, sir.
8 THE COURT: What other cases are there where it
9 was oral?
10 ATTORNEY DIGREGORY: There is only one other
11 case that I'm aware of where it was oral, your Honor, and
12 that was the Pelton case. And I think a fair reading of the
13 Pelton case suggests that there were both -- there was both
14 a documentary exchange and an oral exchange.
15 One of the methods that Mr. Pelton used in
16 dealing with his Soviet handlers -- and he was a government
17 employee. One of the methods that he used in dealing with
18 his Soviet handlers was to engage them in conversation. And
19 when they asked him the right questions, he would give them
20 the right answers, including answers which divulged
21 classified information.
22 THE COURT: And what statute was he prosecuted
23 under?
24 ATTORNEY DIGREGORY: I believe Pelton was
25 prosecuted under 794.
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1 THE COURT: All right.
2 ATTORNEY DIGREGORY: Now, what I -- what I
3 can't say without looking back to the case -- I don't
4 misrepresent anything or mislead the Court -- I don't know
5 whether -- without looking book at it, whether Pelton
6 actually made an overbreadth challenge to the statute.
7 THE COURT: All right.
8 But do you know of any case, considering a 793
9 prosecution, in which there was a prosecution under 793,
10 that considers an overbreadth argument and whether it should
11 be First Amendment-based or not? Strict scrutiny, in other
12 words.
13 ATTORNEY DIGREGORY: None of the cases that I'm
14 aware of -- but again, these are cases dealing with
15 documents. None of the cases that I'm aware of have applied
16 a strict scrutiny standard.
17 THE COURT: All right.
18 Now, I don't think -- I want to make maximum
19 use of the time that we have, and I do want argument on one
20 other motion that I'm going to need today, and I'm going to
21 dispose of some motions today. But I've obviously explained
22 to you how important I consider this particular motion to
23 be.
24 Going back to the void -- or the vague as
25 applied attack, can you tell me succinctly under the Lanier
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1 statute why you believe that this statute is not void -- or
2 is not unconstitutionally vague as applied to these facts,
3 given the standard about, it's got to appear to men of
4 common intelligence that they don't have to guess as to the
5 meaning or application, and that in doing that, that the
6 canon of strict construction and Rule of Lenity insures fair
7 warning by resolving ambiguities?
8 Well, aren't there ambiguities in here?
9 And what about -- and the third leg of the void
10 for vagueness analysis is the due process bar, or the due
11 process argument that says courts shouldn't apply a novel
12 construction.
13 Well, it would be -- Mr. Lowell didn't say,
14 "Hey, look at this in Lanier," and then tell me about,
15 there's never been a prosecution. But that's what he meant.
16 That's what he meant.
17 He says, "Look" -- and he said so in his brief.
18 He said, "Look," he said, "due process bars a novel
19 construction, and it has never been applied in this context
20 before."
21 Now, given those three legs of Lanier, can you
22 respond to those?
23 ATTORNEY DIGREGORY: Well, I'll respond by
24 beginning with the textual argument that I made earlier
25 about the word "information." I think what the Court -- I
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1 suggest that what the Court does is look to the plain
2 meaning of the statute and the plain meetings of the words.
3 The word "information," as I stated earlier, includes oral
4 communications. I think it's a word that is understood
5 readily by most people.
6 Secondly, the sentencing guidelines that were
7 promulgated by a commission established by Congress,
8 recognized -- and I have the --
9 THE COURT: What's the provision?
10 ATTORNEY DIGREGORY: It's 2.31. We cited it in
11 our brief. I can find it.
12 (Pause)
13 THE COURT: That's all right. Go ahead. I can
14 find in the index.
15 What is it?
16 ATTORNEY DIGREGORY: 2(m)(3.3), your Honor --
17 THE COURT: All right. I have it.
18 ATTORNEY DIGREGORY: -- should be the section.
19 And what the provision does -- it is
20 2(m)(3.3) -- 2(m)(3.2)(A), initially, and then 2(m)(3.3),
21 commentary and application note.
22 And it says, if the defendant was convicted of
23 18 USC 793(d) or (e) for the willful transmission of
24 communication of intangible information, with reason to
25 believe that it could be used to the injury of the
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1 United States or the advantage of a foreign nation, apply
2 2(m)(3.2)(A). And the resulting application is a six level
3 increase in the base offense level, for the defendant so
4 convicted of that crime.
5 THE COURT: So this is a construction -- and I
6 think this has been around since roughly in the '80s, '87 or
7 whenever the sentencing guidelines came in. What do you
8 argue from the fact that the Sentencing Commission has said
9 this?
10 ATTORNEY DIGREGORY: Well, I think the
11 Sentencing Commission read the plain language of the statute
12 and read the modification, or the additional language, that
13 is, the scienter requirement that is established when you're
14 talking about intangible information related to the national
15 defense, or information related to the national defense, of
16 a reason to believe that that information would either inure
17 to the benefit of a foreign nation or would do harm to the
18 United States.
19 I think they looked at the plain language of
20 the statute, said that this must mean something different --
21 because the word "information" means something different --
22 than clearly any document, data, compilation, et cetera,
23 map, that is laid out in the statute, and -- and therefore
24 believed that a more significant penalty needed to be
25 applied when you were talking about an offense which is far
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1 more difficult to detect, and that would be the disclosure
2 of