New York Jury Unable To Reach Verdict On Alleged CIA Leaks; Convicts On False Statements Made During Investigation Instead
Earlier this month, a New York jury failed to reach a verdict on whether a former CIA employee leaked government hacking tools to WikiLeaks. The jurors told the court they were “extremely deadlocked.”1 The jury did, however, find the defendant, Joshua Schulte, guilty of making false statements to investigators and contempt of court. The judge declared a mistrial on the remaining eight counts related to the alleged leak.
Schulte was indicted after WikiLeaks posted thousands of files revealing CIA spy methods with the ability to penetrate smartphones, certain televisions, and other household electronics.2 Prosecutors argued at trial that the public disclosure of this hacking library alerted U.S. targets how they were being surveilled and may even have allowed targets to use the tools against the United States.3
The failure to reach a unanimous verdict on the most serious charges was a significant blow to the government’s case. The importance of this case was apparent as the prosecutor told jurors during his closing argument, “These leaks were devastating to national security.”4 The leaks harkened back to a previous disclosure by former NSA contractor Edward Snowden. However, while Snowden revealed details about NSA programs and capabilities, Schulte’s leaks were potentially more harmful, according to intelligence officials, because they explained how the CIA actually conducts cyber espionage.
In a statement given in 2017, then Attorney General Jeff Sessions explained that disclosure of classified information harms national security, and stated that “leakers will be held accountable.”5 Since then, more than six leak cases have been charged, including this WikiLeaks case.
Schulte’s case highlights that anyone under investigation, guilty or not, needs to be careful throughout the whole criminal process. Although Schulte was able to mount a successful defense to the base allegations, he was found guilty of making false statements to government investigators and contempt of court related to a court order requiring him not to disclose information received from the government. The government is expected to retry Schulte on the hung charges.
Federal law prohibiting false statements takes three forms: false statements; perjury; and subornation of perjury. Under 18 U.S.C. § 1001, the general false statement statute, it is unlawful to give material false statements in matters within the jurisdiction of a federal agency or department. Jurisdiction under the statute is defined broadly as any time an agency “has the power to exercise authority in a particular situation.”6
In contrast, the hallmark of a perjury conviction is that the statement be under oath and presented to a federal tribunal, officer, or person.7 Material false statements under oath in federal official proceedings are prohibited in 18 U.S.C § 1621. Federal official proceedings in this context encompass those authorized by federal law, such as congressional hearings.8 Material false statements made under oath in federal court proceedings are prohibited by 18 U.S.C. § 1623. Subornation of perjury, barred by Section 1622, is violated by inducing another to commit perjury.
Further, false statements made in the course of a federal criminal investigation or prosecution may also be an enhancement under the U.S. Sentencing Guidelines for the underlying offense.9
The ability to charge defendants with making false statements is an important weapon in the federal government’s arsenal, especially in cases such as Schulte’s, where the complicated facts and circumstances may make it difficult for the government to prove substantive counts beyond a reasonable doubt. Because Section 1001 can be applied to conduct throughout the government investigation and not just when the defendant is under oath, it can make the criminal litigation process a minefield for defendants without savvy counsel.
1 Shayna Jacobs & Shane Harris, The Washington Post, Jury in CIA leaks case fails to reach a verdict on most serious charges, available athttps://www.washingtonpost.com/national-security/cia-leaks-case-vault-7-wikileaks/2020/03/09/43947c40-5cc3-11ea-9055-5fa12981bbbf_story.html.
2 Superseding Indictment, United States v. Joshua Adam Schulte, 1:17-CR-548 (ECF No. 47, June 18, 2018).
3 Jacobs & Harris supra note 1.
4Id.
5 DEPARTMENT OF JUSTICE, Attorney General Jeff Sessions Delivers Remarks at Briefing on Leaks of Classified Materials Threatening National Security, Aug. 4, 2017, available at https://www.justice.gov/opa/pr/attorney-general-jeff-sessions-delivers-remarks-briefing-leaks-classified-materials.
6United States v. Rodgers, 466 U.S. 475, 479 (1984).
7See 18 U.S.C. § 1621(1)
8United States v. Hvass, 355 U.S. 570, 575 (1958).
9 United States Sentencing Guidelines § 3C1.1.