Unlike Monday's earlier filing, there is no snark in the government's response to Brent Wilkes' motion to dismiss his indictment because of pre-indictment leaks. Instead, for the purposes of the case, there's just a simple logical argument:
- Before Wilkes lawyer Geragos' complaint, DOJ had already started an investigation into the pre-indictment leaks.
Note: the timing on this is a bit fishy. The filing says only that the San Diego USA Office forwarded the Geragos' February 1 allegations to main DOJ "several weeks" before Geragos' formal complaint, which was April 23. So it's possible that SDUSAO didn't do it immediately upon receiving the letter.
- On November 29, 2005, one of Wilkes' prior lawyers acknowledged that Wilkes was named in the Cunningham indictment.
- Several of the press reports cited by Geragos are not incriminating (for example, the could be based on the earlier revelations about Wilkes mapped onto the Cunningham indictment).
- For the key leaks (specifically, that government officials had shown draft indictments to reporters, that Lam had set a deadline for the indictments, and that Main DOJ was worried about the leaks), Geragos has provided no substantiation--and the substance of the leaks was not published.
That's the legal argument. But I'd like to go back and review the whole back and forth to see if we can get to what happened with the leaks (the ones from January, rather than the ones going back to 2005).
Geragos' February 1 Letter and Lam's Response
The issue started on February 1, when Wilkes lawyer Mark Geragos sent Carol Lam a letter memorializing a conversation he had with AUSA Sanjay Bhandari. Geragos quoted from two newspaper articles that, he said, showed "wholesale leaking of matters occurring before the grand jury."
The first cited two federal officials saying the SD USAO was close to seeking an indictment for Wilkes. The article described the first source this way.
The source, who has intimate knowledge of the case and spoke on condition of anonymity, said a preliminary draft indictment is under review by "many eyes on what is going to be proposed to the grand jury," the Times reported.
And it specified that the second source was from another agency.
Another official who is with a different agency but is also familiar with the case said an indictment is "imminent,"
The second article Geragos cited in his letter also relied on two government officials.
Federal prosecutors are preparing to seek indictments against a former top CIA official and a San Diego defense contractor linked to the bribery scandal that sent former U.S. Rep. Randy "Duke" Cunningham to prison, two government officials familiar with the investigation said Wednesday.
But the article later suggested that these government officials were not prosecutors.
Prosecutors in San Diego would not comment about an ongoing investigation.
Allison Hoffman, the author of this second article, would write a detailed description of the alleged crimes just six days later that clearly relies at least partly on CIA sources. That second Hoffman article again cited the two government officials--and others--and broadened the list of those who refused to comment on the case:
Those officials and others spoke on condition that they not be identified because the charges have not been finalized and because CIA contracting is classified. Justice Department and law enforcement officials in San Diego and Washington declined to comment.
In addition to those two articles (the second Hoffman article post-dates Geragos' letter), Geragos describes another leak.
As I told Mr. Sanjay [note Geragos may be deliberately trying to rile Bhandari, because he misspells his name elsewhere in the letter in addition to referring to him here as Mr. Sanjay] during our phone call today, it has been brought to my attention that yet another reporter who today claims to have been shown two separate indictments of Mr. Wilkes. One in the Foggo matter and one related to Thomas Kontogiannis. In addition, this reporter was apparently told prosecutors wanted to arrest Mr. Wilkes possibly as early as today on one of those indictments.
But this journalist got the story wrong--not only was Wilkes not arrested on February 2, but Kontogiannis was not indicted with Michael and Wilkes. The latter mistake--predicting an indictment for Kontogiannis--is one Hoffman's sources made too.
This was a point Carol Lam made in her response to Geragos--she requested more details about the journalist spreading leaks with wrong information.
We invited you to provide any specific information you have, including contact information for the reporter who claimed that he had seen copies of indictments, but had his facts wrong.
The March 19 Hearing
The leaks to journalists become a central issue in the March 19 hearing, which was ostensibly about arranging the sharing of classified information. Against the background of the discussion of secrecy associated with classified information, Judge Larry Burns scolds the government team about leaks (the AUSA here is Halpern).
Halpern: What I can say is it has nothing from prosecution team. There have been no leaks [of classified information]. There certainly have been no suggestions that any information that we had that we're under control of has been leaked.
The Court: I disagree, Mr. Halpern. Look at their Exhibit B to the motion.
Burns goes on to read from the first Hoffman article (though he did not read the line noting that prosecutors would not comment). Burns labels that leak as a violation of grand jury secrecy rules.
You and I both know that's a violation of Rule 6. Whoever did that shouldn't have done it.
Mr. Halpern: Clearly your honor. But I don't think there's an indication that that's a member of the prosecution team.
The Court: It's somebody associated with the government that's forecasting this for the media and telling them what's going on in front of the grand jury.
Mr. Halpern: There are many people associated with the government. I'm not going to quarrel on the Court's point. I think you're making a valid point.
Burns returns to the issue again.
The Court: Somebody ignored the conventions of federal criminal practice and Rule 6 in the two disclosures that were made. Somebody did.
Again, I'm not assuming that this has anything to do with you or Mr. Forge or Ms. Chu. I'm assuming it was somebody else who was anxious to get a headline or do something that led to this.
I take your point, Mr. Halpern, that whoever it was didn't disclose confidential secret national security information, but it was still--it's a pretty egregious violation to say, "here's what's going on in front of the grand jury, and expect an indictment in the next couple of weeks."
Mr. Halpern: Your honor, there's no way I will defend that action be whoever it was made, and I don't intend to.
All of this makes something crystal clear to the defense attorneys: Burns is pissed about the leaks, and they can use that to their advantage. Which Geragos then does.
Could I also address one other area, which is the leaks and the idea of the stand-alone order.
I had suggested in a letter prior to my client's indictment, because I was so irate at the time and I've mentioned before, that I wanted all of the people on the prosecution team, however we want to define that, to file declarations under penalty of perjury.
As this court well knows, the source privilege is not met with a whole lot of success in the federal courts anymore. Unfortunately, in the state courts it's still there. And you can't get to the bottom of this. Here we can get to the bottom of this. Clearly, as they've conceded, it did not come from the defense. I think it potentially is Brady or Giglio information as to who it is who willingly will go out and violate 6(e).
And the way to find out is to get these people to put their declarations under penalty of perjury and bring in the reporters and put them under oath and let them say who it was who disclosed the information.
Note Geragos' move here. He says that, because this is a federal case, the reporters privilege does not hold up, so the Court can order the journalists to reveal their sources.
At this, one of Foggo's lawyers, Randolph Teslik pipes up to note that he, too, learned the details of the indictment from a reporter.
Just for the record, we learned the details of the indictment from a telephone call from a reporter before the indictment was returned as well. We didn't put that in our motion. But given the nature of the representations and the Court's concerns here about 6(e), I think it's important that the record reflect that we got the same telephone call as Mr. Geragos.
The hearing as a whole served to get Burns riled up about leaks to reporters and to get Halpern to cede the seriousness of the leaks. Which Geragos then uses to set up his May 23 motion to have the entire indictment dismissed because of the leaks.
Geragos' May 23 Motion to Dismiss the Indictments
Foggo's lawyers file a motion regarding the leaks on May 23, too. But they don't ask for a dismissal. They only ask for a thorough investigation. But Geragos, as is his wont, goes big, asking to have all the charges dismissed. I don't think he really hopes this will work. But he does use it to foreground the Lam dismissal, suggesting Lam leaked the information personally to pressure main DOJ to approve the charges.
Before indictments were returned against Mr. Wilkes, news articles cited government officials as the source of secret grand-jury material. Those government leaks to reporters disclosed secret matters before the grand jury violating of Federal Rule of Criminal Procedure 6(e), including the targets of the grand jury, the nature and focus of the investigation, and the likelihood that an indictment would be returned and when.
During the grand jury proceedings, counsel for Mr. Wilkes regularly received phone calls from reporters relaying specific information about the pending indictments. The reporters had even seen drafts of the indictments weeks before the indictments were returned. The government’s illegal disclosure of secret grand jury matter to the press was not accidental or haphazard. It was part of a deliberate campaign by the former United States Attorney, Carol Lam, to use Mr. Wilkes and the other defendants here in her political squabble with the Justice Department’s main office in Washington D.C. The United States Attorney used the leaks to create a public atmosphere that compelled the grand jury to return indictments and present Main Justice with a fait accompli, a gesture of defiance by Carol Lam as she was forced out of office.
There are important points that Geragos makes in his statement supporting the motion. First, he uses Halpern's concessions from the March 19 hearing to put the blame back on the prosecution team.
As the prosecutors have conceded in open court, these leaks can only have been from members of the prosecution team.
Second (though I'm presenting this out of order), he describes hearing from six different reporters, two of whom have printed all the information shared with Geragos, his colleagues, or Wilkes. He then explains he has attached the stories representing these leaks.
At least six reporters telephoned me, my co-counsel, or my client. At least two of those reporters published all or part of the information disclosed to them by government officials in violation of Rule 6(e). Attached hereto as Exhibit 2 are true and correct copies of newspaper articles from a few of those outlets as authored by some of those reporters disclosing secret grand jury matters illegally disclosed to them by government officials.
As the government points out in its response, some of these articles could be based entirely on Wilkes' previous lawyers' own revelations coupled with reading the Cunningham indictment. Further, two of these articles are those described above in connection with the February 1 letter, which report that the prosecution team would not comment. Also, it includes the article apparently relying on CIA sources. In other words, the visible evidence Geragos supplies doesn't really prove that the prosecution team was behind the leaks--one point the government made in its response.
I'm curious, though, about the reference to Wilkes. Because I'd be deeply curious about any so-called leaks going directly to Wilkes. Was Wilkes, for example, the one who received the erroneous leak referenced in Geragos' February 1 letter?
The leaks for which Geragos provides evidence don't really support his larger argument to dismiss the case. But Geragos uses another leak--one not apparently reported--to implicate Lam in the leak.
A few days before the indictments were unsealed, I received a telephone call from a local reporter who told me that the United States Attorney would ask the Grand Jury to issue the indictments against Mr. Wilkes the following day, and described, in detail, the contents of those indictments. When I asked the reporter about the timing of the indictments, the reporter told me that United States Attorney, Carol Lam, wanted the indictments issued and announced before her departure date the following Thursday, two days later.
This is the basis, presumably, for Geragos' claim that Lam was behind the leaks.
Finally, Geragos reports another leak that also has not been reported on--and this one comes from Main DOJ.
Around the same time the print reporters were disclosing to me detailed knowledge of the draft indictments, and stating that government officials were showing them copies of draft indictments, a television reporter told me that an attorney at the Justice Department main offices in Washington D.C. (“Main Justice”) had disclosed that Main Justice believed that it could no longer exercise its normal supervisory role because the leaks of the indictment “would now make any action taken by Main Justice appear to be political”.
This is the final necessary piece for Geragos' argument, because it suggests that the leaks prevented Main DOJ from fulfilling their normal supervisory role in the case. The implicit message here is that Main DOJ would have prevented the indictments, if only someone (and Geragos alleges that someone is Lam) leaked all the details in the case. Of course, simple logic would tell you that the burgeoning USA Purge--and not the leaks in San Diego--limited Main DOJ from intervening too obviously in the case. But the leaks provided a convenient excuse--presumably for a member of the clique back in DC--to taint the indictments.
Government's May 7 Response
Which is what brings us to the real anger evident in yesterday's government response to Geragos' motion. While the rest of the response simply shows that almost all of the evidence Geragos relies on is either irrelevant or wrong, the last passage of the response makes strong insinuations that the most important pieces of Geragos' argument--those touching on Lam's involvement and Main DOJ's response to the leaks--lack corroboration.
In the weeks and months since Wilkes’s counsel sent his February 1st letter, made his representations at the March 19th hearing, and filed his April 23rd declaration, not a single article or story has been published or broadcast that corroborates his representations regarding: (1) the disclosure to the media of actual draft indictments; (2) frustration at Main Justice over a perceived inability to exercise its normal supervisory role over these cases; or (3) a reporter’s pre-indictment awareness of the detailed contents of the indictments.
Under the circumstances, Wilkes’s counsel’s declaration simply raises more questions than it answers. For example, why, in the most publicized case in this district, and one that has generated national interest, did no reporter report any of the events described in paragraphs 5 and 6 of Wilkes’s counsel’s declaration?
The insinuation is clear. The leak that implicated Lam and the one that reflect hesitation at Main DOJ were never published. They were simply shared with Geragos, and then dropped. Why would a reporter with such an incendiary story just sit on it?
While I suspect the reporter alleging that Lam had ordered indictments before her departure may have been speculating (it was a common speculation at the time), I'm most curious about the Main DOJ leak. The clique at Main DOJ had been panicking about public coverage of Lam's resignation since mid-January. In early February, Rahm Emmanuel and others requested that Lam be made a special prosecutor on the Wilkes case. Geragos' TV reporter would have you believe that it was the leaks--and not the larger USA Purge scandal--that forced Main DOJ to back off of any intervention into the Wilkes indictment.
No wonder the prosecution team sounds so skeptical.