Defense lawyers in a high-profile government leaks prosecution are pushing back against the government's management of classified information in the case.
The defendant, former U.S. Department of State contractor Stephen Jin-Woo Kim, was accused of leaking confidential information about North Korea to the media. A federal grand jury indicted Kim in U.S. District Court for the District of Columbia in August 2010.
The case came back into the national spotlight last month following revelations that the U.S. Department of Justice secured a search warrant for Fox News reporter James Rosen's emails as part of its investigation. In the search warrant affidavit, an FBI agent wrote he had reason to believe Rosen broke the law as an "aider and abettor and/or co-conspirator." The Justice Department was already facing public scrutiny over its review of phone records for Associated Press reporters and editors as part of a different leaks investigation.
Given the potentially sensitive information involved, discovery has taken place under a protective order that has kept a number of filings and court orders under seal. Assistant U.S. Attorney G. Michael Harvey estimated today that the government had turned over around 3,200 classified documents to Kim's lawyers. Today, Kim's lead attorney, Chadbourne & Parke partner Abbe Lowell, sparred with the government over what information would be considered classified as the case inches forward to a trial.
Lowell briefly brought up the recent reports about Rosen, although not by name. In discussing his concerns with how much information the government had deemed classified, Lowell noted the lawyers sitting at the defense table were among the only people "in the world" at this point who couldn't say the name of the reporter and news agency at issue, since the government deemed that classified information.
U.S. District Judge Colleen Kollar-Kotelly repeatedly said today she wanted the case to move more quickly towards a trial. She said at the beginning of the hearing she hoped to set a trial date before the end of the year, but by the end said she would leave her calendar open for next spring to be safe, given the ongoing discovery issues. (The attorneys in the case recently told the judge that they don’t expect a trial until, at the earliest, 2014.)
A major issue of contention today was how to handle 600 pages of materials that prosecutors said at the start of discovery should be treated as classified, but hadn't gone through a formal classification review.
Harvey said prosecutors took that approach to speed up discovery and argued the materials should continue to be treated as classified. Lowell pushed for a formal review, saying he knew at least some of the materials, such as communications between Kim and his son, weren't classified. Kollar-Kotelly asked the government to check with intelligence officials to make sure the materials would meet the standard for proper classification.
Whether documents are classified will affect what Kim's lawyers have to disclose to the government about what they plan to use at trial. Under the Classified Information Procedures Act, the defense is required to file a notice of what classified information they expect to disclose. The government has a chance to respond and the court makes a decision on what is allowed.
Kollar-Kotelly recently filed several orders under seal—no public versions have been released, yet—addressing Kim’s effort to force the government to produce certain information. The government has until July 2 to produce documents pursuant to those orders and to respond to a new discovery request the defense is expected to file within the next two weeks. With discovery coming to an end, the judge said she hoped the parties could get started on the pretrial proceedings under the Classified Information Procedures Act by the end of July.
The parties are also working through a dispute over Lowell's request to look at pleadings he filed in an unrelated case in the U.S. District Court for the Eastern District of Virginia. Those pleadings are under seal, but Lowell said he wanted to look at them for guidance on how to style his filings under the Classified Information Procedures Act.
Assistant U.S. Attorney Jonathan Malis said the intelligence community had concerns about Lowell’s request. Lowell said since he was only asking to see documents he had written in the past, those concerns were "overblown." The judge told the government to find out whether Lowell's request was workable.
Lowell also said recent news reports on search warrants in the case had raised issues that could result in the defense moving to suppress certain information. He didn't specify whether he was referring to the warrants for Rosen's emails. Kollar-Kotelly has yet to rule on a motion filed by the defense in 2011 to suppress statements Kim made to law enforcement.
A status hearing is scheduled for July 9.