Case 1:10-cr-00485-LMB Document 486 Filed 08/17/15 Page 1 of 37 PageID# 4681 1 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA ALEXANDRIA DIVISION UNITED STATES OF AMERICA vs. JEFFREY ALEXANDER STERLING, Defendant. . . . . . . . . . . . . . . . . . . . Criminal No. 1:10cr485 Alexandria, Virginia January 12, 2015 3:13 p.m. TRANSCRIPT OF MOTIONS HEARING BEFORE THE HONORABLE LEONIE M. BRINKEMA UNITED STATES DISTRICT JUDGE APPEARANCES: FOR THE GOVERNMENT: JAMES L. TRUMP, AUSA DENNIS M. FITZPATRICK, AUSA United States Attorney's Office 2100 Jamieson Avenue Alexandria, VA 22314 and ERIC G. OLSHAN, Deputy Chief Public Integrity Section of the Criminal Division United States Department of Justice 1400 New York Avenue, N.W. Suite 12100 Washington, D.C. 20005 FOR THE DEFENDANT: EDWARD B. MAC MAHON, JR., ESQ. Law Office of Edward B. MacMahon, Jr. 107 East Washington Street P.O. Box 25 Middleburg, VA 20118 (APPEARANCES CONT'D. ON FOLLOWING PAGE) (Pages 1 - 37) COMPUTERIZED TRANSCRIPTION OF STENOGRAPHIC NOTES Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 486 Filed 08/17/15 Page 2 of 37 PageID# 4682 2 1 APPEARANCES: (Cont'd.) 2 FOR THE DEFENDANT: BARRY J. POLLACK, ESQ. MIA P. HAESSLY Miller & Chevalier Chartered 655 - 15th Street, N.W. Suite 900 Washington, D.C. 20005-5701 ALSO PRESENT: SA ASHLEY HUNT JENNIFER MULLIN, ESQ. OFFICIAL COURT REPORTER: ANNELIESE J. THOMSON, RDR, CRR U.S. District Court, Fifth Floor 401 Courthouse Square Alexandria, VA 22314 (703)299-8595 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 486 Filed 08/17/15 Page 3 of 37 PageID# 4683 3 1 P R O C E E D I N G S 2 (Defendant not present.) 3 THE COURT: All right, we're now in the open portion 4 of the hearing. 5 matters that I want to make sure have been taken care of. 6 First of all, we have a government motion to amend expert 7 notice, that a witness who they planned to call will not be 8 called to testify. 9 This is just a matter, a few logistical Is there any objection to that motion being granted? 10 MR. MAC MAHON: 11 THE COURT: 12 No objection, Your Honor. All right, the motion is granted. All right? 13 There's a motion in limine to exclude Mr. Risen from 14 appearing at the trial to testify, and I -- that was just 15 filed, so I have not heard from the defense its position on 16 that. Mr. MacMahon? 17 MR. MAC MAHON: If you would, Your Honor, we, we just 18 got this an hour or two ago, but obviously, we object to not 19 being able to call Mr. Risen as a witness on various grounds. 20 Obviously, I haven't been able to do all the legal research, 21 but Mr. Risen's testimony was taken here in court, and we all 22 heard it. 23 testimony that he had multiple sources, a wide range of 24 sources, whatever it was that he said, and to limit us from 25 putting on that testimony really because the government didn't It's key, I think, for this jury to hear his Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 486 Filed 08/17/15 Page 4 of 37 PageID# 4684 4 1 like the answer that they got and didn't even ask him any 2 questions, I think, is infringing upon Mr. Sterling's right to 3 a fair trial. 4 5 6 7 8 9 We have the right to call Mr. Risen as a witness if we want. THE COURT: Do you have any objection to the government's proposed instruction should he testify? MR. MAC MAHON: Yes, Your Honor, I do. The instruction that says they shouldn't draw any inferences 10 against Mr. Sterling for his refusal to testify, the 11 instruction that's on page 4? 12 THE COURT: Right. 13 MR. MAC MAHON: Mr. Risen hasn't actually refused to 14 testify about his sources. 15 sense, which requires under, I think it's 803 or 804 that a 16 court order be entered. 17 even ask him a question. 18 is what he is. 19 He's not unavailable in a legal He's just -- the government didn't I mean, it's politically unavailable They never asked him the question. They never asked 20 him any questions before this hearing. They never subpoenaed 21 any of his e-mails. 22 They did all kinds of things that we would want to be able to 23 put on in front of a jury to show that the -- I could bring you 24 dozens of pleadings where they say how necessary this testimony 25 is, that it's their only direct evidence, that they can't prove They never went after his phone records. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 486 Filed 08/17/15 Page 5 of 37 PageID# 4685 5 1 venue without him, all of these things, and now all of a 2 sudden, he's a witness who can't be called at all. 3 I think that that instruction the way it's written 4 actually infringes upon Mr. Sterling's right to remain silent. 5 If the government doesn't bother to call Mr. Risen, that is 6 something that the defense can talk about, something we can 7 argue about, something we can bring up in opening, something we 8 can bring up in closing. 9 have to do a thing. 10 It's their burden of proof. We don't And to tell the jury when -- I mean, and I don't 11 really know of any questions Mr. Risen didn't answer because 12 apparently the questions were, "If I asked you this, you 13 wouldn't answer, would you?" 14 The answer was, "Yes." 15 You were never asked to make him answer a single 16 17 question. And, you know, we've got Mr. Risen coming -- they 18 want to put all kinds of things in about Mr. Risen in this 19 case, but to tell us that we can't really deal with it at all, 20 we can't put in -- so I don't understand even, even the 21 argument that somehow -- you've got witnesses here who won't 22 testify because they're serving life sentences. 23 not a missing witness. 24 That's, that's a different thing whatsoever. 25 You know, it's It's somebody they won't even call. And, you know, if, if under -- in the case of Kyles Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 486 Filed 08/17/15 Page 6 of 37 PageID# 4686 6 1 v. Whitley, the lack of an investigation by the government, why 2 didn't they subpoena Mr. Risen's e-mails? 3 subpoena his phone records and find out who else he was talking 4 to instead of doing it -- we've got about seven minute of phone 5 calls over two years between Mr. Sterling just in phone 6 records, and we don't know if he talked to any of these other 7 people we've talked about and the jury is going to talk all 8 about, which is why I was asking about the other phone records 9 as well. 10 Why didn't they And so I just think it's a completely unfair, really 11 an unconstitutional thing to suggest to this jury that no 12 inference should be drawn because the government doesn't call 13 the key witness, the one witness that it has said all along 14 holds the key testimony in this case, and if the attorney 15 general made a decision that that was what was going to happen, 16 that's what happened, but that doesn't mean it should fall on 17 Mr. Sterling to then act as if nothing ever happened in the 18 case with Mr. Risen other than what the government thinks is 19 incriminatory. 20 They've made motions to you that certain things he 21 said were statements against penal interest. 22 those motions, that his statements to Mr. Harlow were 23 statements against penal interest. 24 25 You remember He has no penal interest whatsoever it turns out with respect to testifying in this court when the President and the Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 486 Filed 08/17/15 Page 7 of 37 PageID# 4687 7 1 attorney general say that nothing's supposed to happen to him, 2 and so I think we get to talk about that, and I think that it's 3 just like any other witness that they don't call, that that's 4 something that they just have to live with and live with the 5 consequences. 6 They're the ones that are making the decision. And if he's declared unavailable by the government, 7 we can put in the transcript of what happened in court. 8 happy just to have that, the transcript of the -- with my 9 motion taken out and other things, but then his prior sworn 10 11 12 13 We're testimony comes in. THE COURT: Well, which do you want? Do you want his live testimony in court, or do you want the transcript? MR. MAC MAHON: We would take the transcript right 14 now over his live testimony, Your Honor, given the parameters 15 of your order that we had to ask the questions. 16 we would be satisfied with that transcript, and I think we'd be 17 entitled to it once the government declares him unavailable 18 anyway under -- 19 THE COURT: We would be, Well, I don't think the government 20 declares somebody unavailable, I mean, but in any case, you 21 want to introduce his transcript, and we can fight about the 22 jury instruction down the road. 23 MR. MAC MAHON: 24 THE COURT: 25 MR. MAC MAHON: Yes -- All right. -- but also, I think that what Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 486 Filed 08/17/15 Page 8 of 37 PageID# 4688 8 1 they're also saying in here, we talked about this last night, 2 counsel did, so this didn't come out of the blue completely, 3 Your Honor, but, you know, as to what arguments could be made 4 about whether the government could have gotten this 5 information, whether it even tried, what kind of an 6 investigation is it where the key witness in the case is 7 declared off bounds completely by the government and that I 8 can't tell the jury that, that they've decided the key witness 9 in their case is somebody that they're just not going to bother 10 with at all, that they can't, they're just going to see if they 11 can do this some other way, that -- and I just think that's 12 completely fair and would happen in every other case that we 13 had. 14 THE COURT: 15 MR. OLSHAN: Mr. Olshan? Your Honor, Mr. MacMahon's statements 16 underscore why this motion is ripe at this point. 17 thing that last week's hearing accomplished is dispelling any 18 speculation about the limits to which Mr. Risen would go to not 19 answer questions about his sources, either directly or 20 indirectly. 21 The one He stated that repeatedly on the record. The hearing last week made that crystal clear, and 22 legally what that means is that as to the core non-collateral 23 issues in this case, he is unavailable either to the government 24 or to the defense. 25 able to cross-examine him on any of these issues related to If we were to call him, they wouldn't be Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 486 Filed 08/17/15 Page 9 of 37 PageID# 4689 9 1 sourcing. 2 able to cross-examine him effectively because he has said he 3 would refuse to answer any questions, regardless of the 4 potential sanction, about who his sources were for this chapter 5 in State of War or any article that he wrote or anything. 6 If the defense were to call him, we would not be And so the, the law is, is pretty squarely on point 7 that when a witness is equally unavailable or available to both 8 sides, you don't get to comment on the government's failure to 9 call that witness. There's no Sixth Amendment issue hereby 10 because a defendant can't call a witness to take the stand and 11 answer some questions on direct, knowing that that witness is 12 not going to answer relevant questions on cross-examination. 13 THE COURT: This is a little bit different, I think. 14 This is not a person who's taking a Fifth Amendment, pulling in 15 the full Fifth Amendment. 16 you know, a policy decision that was made by the executive 17 branch as to how to handle this situation, because frankly, you 18 won in the Fourth Circuit, and the Supreme Court didn't grant 19 cert, so, you know, the law in terms of what the law of the 20 case was was that Mr. Risen was not going to have a right to 21 refuse to testify. 22 I mean, part of the issue here is, He would not have a Fifth Amendment right, and, you 23 know, he never got pushed to the ultimate, so we don't know 24 what the final outcome would be, but he did say some things 25 during his testimony that are certainly not irrelevant to this Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 486 Filed 08/17/15 Page 10 of 37 PageID# 4690 10 1 case. I believe he did confirm that there were multiple 2 sources. 3 for the defense, and unless, you know, you want to do some 4 stipulations, I think those portions of his testimony where he 5 did provide information, I think, are sufficiently relevant to 6 this case that allowing a properly redacted transcript is not 7 inappropriate. 8 don't think the whole transcript would be needed in this case, 9 and I would expect you-all to work it out. That in and of itself is an important fact, I think, I mean, there's some stuff in there that I 10 What kind of instruction I give -- but I also don't 11 think it's fair to allow the defense to be able to argue that 12 the jury should draw an inference against the government 13 because of the way the, the Risen testimony -- I mean, it is 14 what it is. 15 So I think the real fight on this may be the jury 16 instructions and possibly, you know, limitation to some degree 17 on how the case is argued. 18 open this thing up and then all of a sudden have someone coming 19 over from DOJ to have to explain what the attorney general's 20 position is. 21 for this case, all right? 22 What I don't want to do is have to That's a trial within a trial and not necessary So I hope that ruling is clear enough. I'm going to 23 deny the government's motion in limine, allow the defense to 24 move in the portions of the transcript they want, and frankly, 25 you can move in whatever portions of the transcript you-all Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 486 Filed 08/17/15 Page 11 of 37 PageID# 4691 11 1 want, and that will be part of the evidence for this jury, and 2 then how it's argued may get affected down the road when I 3 decide how I want to handle the jury instruction. 4 MR. OLSHAN: 5 THE COURT: 6 MR. OLSHAN: A couple points if I may, Your Honor? Yeah. Mr. MacMahon just stated that they'd 7 like to argue about this in opening, that they'd like to 8 somehow -- 9 THE COURT: We're not arguing the case in opening 10 statements. 11 How much time is the government requesting for its opening 12 argument -- opening statement, not argument? 13 In fact, we can, we can jump to that right now. MR. TRUMP: I don't want the Court to, to laugh or 14 gag when I, when I ask, but I've been trying to get it down 15 under 40 minutes, and the reason I say that, there's, there's 16 two burdens on the government here that are really, they're 17 overlapping evidence but essentially two cases. 18 One, we have to prove that the information that was 19 disclosed is national defense information, and because of the 20 way that the, the book is written, we have to go through the, 21 the classified program in some detail and explain to the jury 22 what the real program was all about and, and the fact that it 23 wasn't flawed and that sort of thing. 24 25 Then the second part is linking the defendant to the book. So there's, there's really two areas that have to be Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 486 Filed 08/17/15 Page 12 of 37 PageID# 4692 12 1 explained. I'm trying to get it down less than 40, but I would 2 hope the Court would give us a little bit of leeway just 3 because it is a circumstantial case, and linking up the 4 circumstantial evidence to the program and everything does 5 take, take a little time. 6 I'm not a long-winded person, Judge. 7 THE COURT: I know. 8 MR. TRUMP: I can tell when a jury falls asleep, and 9 I'm certainly going to try to keep it as short as possible. 10 THE COURT: I have to tell you, Mr. Trump, I don't 11 think in all the years I've been on the bench I've ever seen an 12 opening statement that runs more than about 30 minutes that's 13 effective. 14 MR. TRUMP: I'm trying to get it down to that -- 15 THE COURT: Okay. 16 MR. TRUMP: -- but I hope the Court won't cut me off 17 at 31 minutes and say, "You're done." 18 THE COURT: All right. 19 MR. TRUMP: Because there is a lot of information 20 there that, frankly, is going to be very confusing without some 21 explanation. 22 23 THE COURT: All right. Mr. MacMahon, who's opening for defense? 24 MR. MAC MAHON: 25 THE COURT: I am, Your Honor. Is 40 minutes about what you were looking Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 486 Filed 08/17/15 Page 13 of 37 PageID# 4693 13 1 for? 2 MR. MAC MAHON: I wasn't -- you've never given me 3 that long before, Your Honor, and I wasn't expecting it, but 4 I'll -- it's your court, so whatever you say. 5 THE COURT: Forty minutes is the outside limit for 6 each side, all right? But it's not to be argument. If it 7 starts getting argumentative, I'm going to cut it, all right? 8 That's for both sides. 9 explanation of what the jury can sort of be expecting and what So a simple, straightforward 10 the problems in the case might be, that's legitimate, all 11 right? 12 But offhand, so you can save me some research time, 13 what's the burden of proof for establishing venue in a criminal 14 case? 15 MR. OLSHAN: 16 THE COURT: 17 well, preponderance? Preponderance. Is that the defense understanding as 18 MR. MAC MAHON: 19 THE COURT: 20 MR. MAC MAHON: 21 Yes, Your Honor. All right. We submitted a proposed instruction to you that sets forth the standards. 22 THE COURT: I haven't -- all right. I haven't looked 23 at the instructions yet, so it's too far down the road so far. 24 Okay. 25 MR. OLSHAN: A couple more points on the Risen issue, Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 486 Filed 08/17/15 Page 14 of 37 PageID# 4694 14 1 Your Honor? 2 THE COURT: 3 MR. OLSHAN: Yeah. With respect to understanding the 4 Court's ruling denying the motion to exclude, we would, we 5 would still argue that the Court should give an appropriate 6 instruction that based on the witness's availability or 7 unavailability to both sides, the defense cannot argue that the 8 jury should infer -- 9 THE COURT: All right, that's at the end of the case, 10 when we'll have our jury instruction charging conference. 11 ahead. 12 MR. OLSHAN: Go One other point on, on the transcript. 13 I think preliminarily, and we'll have to discuss this, we would 14 oppose entering the transcript, even portions of it, into the 15 record, as opposed to potentially doing a read-back of his 16 testimony, so that the jury is not in the back with a 17 transcript. 18 THE COURT: Oh, that's how it's done. In this court, 19 my law clerk sits in the witness box, reads the answers, and 20 the side that proposed the question will read it. 21 less covers how it's done. 22 to get the transcript, yeah, yeah. 23 MR. OLSHAN: That more or So it won't be that they're going And then one final point: We certainly 24 would have some objections to questions that were asked by, by 25 Mr. MacMahon during the hearing. For example, Mr. Risen was Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 486 Filed 08/17/15 Page 15 of 37 PageID# 4695 15 1 prompted to go through his prior affidavit as to why he wrote 2 the chapter, which suggests that he is somehow an expert in 3 national security matters, where we certainly haven't conceded 4 that he is in a position to opine on what would be harmful to 5 the United States' security interests and what would not. 6 THE COURT: Well, I'm not sure I'm going to entertain 7 that, but the bottom line is I don't know yet what the 8 transcript is, so what needs to be done is the defense needs to 9 indicate what portions of the transcript -- if you want the 10 whole thing, then so be it. Then I'll see what objections the 11 government's got. 12 now, that's coming in in the defense case because the 13 government is not planning to use it, is that correct, in your 14 case-in-chief? But if you want it shortened or whatever -- 15 MR. OLSHAN: 16 THE COURT: That's correct. All right. So there are quite a few days 17 before we have to actually get to this issue, but I do expect 18 the defense to decide what portions of the transcript you want 19 to use, if not the whole thing. 20 as possible to the government. 21 indicate what objections you've got, and I'll have to rule on 22 it, rule on it at some point before we get to that point in the 23 case, all right? 24 MR. OLSHAN: 25 THE COURT: Get that immediately, as soon The government should then Very well. Okay. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 486 Filed 08/17/15 Page 16 of 37 PageID# 4696 16 1 2 MR. MAC MAHON: a copy of the transcript. 3 THE COURT: 4 MR. OLSHAN: 5 Your Honor, if I may, we need to get I'm sure we can arrange that, but -- That hadn't been ordered yet? I believe it's been docketed for the parties. 6 THE COURT: Oh, then -- 7 MR. OLSHAN: 8 MR. MAC MAHON: Because it was a public hearing. We'll, we'll get a copy, Your Honor. 9 I just wanted to say on this, some of these questions deal also 10 with this mail fraud count, where Mr. Sterling is being charged 11 with conspiring essentially with Mr. Risen to publish the book. 12 So we'll deal with that at the right time. 13 THE COURT: All right. 14 MR. TRUMP: Your Honor, there's no allegation that 15 Mr. Risen conspired with anyone. 16 17 I want to make -- THE COURT: There's no conspiracy charge in this case. 18 MR. MAC MAHON: It's a scheme or artifice to defraud 19 the United States out of its property by the publication of the 20 book. I didn't use the right word. 21 THE COURT: 22 MR. MAC MAHON: 23 24 25 All right. "Scheme or artifice" would be the exact words. THE COURT: All right. I just, since this is an open hearing and I'm not sure the public has been kept apprised of Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 486 Filed 08/17/15 Page 17 of 37 PageID# 4697 17 1 this, we are going to seat a jury of 14 individuals. 2 defense will have a total number of 11 peremptory strikes; the 3 government will have 7. 4 jurors. 5 The I have subpoenaed approximately 100 That does mean that the well of the court -- the 6 courtroom is going to be packed with jurors on tomorrow, and 7 there may not be much room, if any, for reporters or the 8 public. 9 the courtroom for, you know, the first two reporters who get 10 here, but other -- the two who are in court probably will be 11 the two, but quite seriously, there won't be enough room for 12 everybody, and that's just the physical problems we have with 13 the courtroom. 14 I'll have the CSO see if we can do that. 15 We'll try to have one or two seats at the very back of If we can get a couple extra chairs in back, Once the jury has been selected, then we will go 16 right into opening statements. Whether that happens before 17 lunch or after lunch, I don't know. 18 takes to get the jury in place, all right? It will depend how long it 19 MR. TRUMP: One of the -- 20 THE COURT: And also for the purposes of the public, 21 we are going to continue this trial on Friday. 22 at 10:00 on Friday. 23 we were able to move the motions docket to 9:00, so this, this 24 trial will go forward on Friday. 25 We will start That's not, not our normal practice, but And then we'll see next week. We don't have court on Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 486 Filed 08/17/15 Page 18 of 37 PageID# 4698 18 1 Monday because it's Martin Luther King holiday. 2 whether or not we also have Friday. 3 jurors, I am going to tell them to be prepared to be here on 4 the Fridays. 5 We'll see When I voir dire the And I do need from you, Mr. Trump, an estimate, I 6 think we've been through this before, but when do you think the 7 government will close its case-in-chief, assuming no, assuming 8 no snow days? 9 10 MR. TRUMP: second week. 11 12 We certainly hope by the end of the THE COURT: All right, so that would be by the 23rd of, of January. 13 MR. TRUMP: That Friday, yeah. 14 THE COURT: That Friday, all right. 15 MR. TRUMP: We hope. 16 THE COURT: All right. And how long, Mr. MacMahon, 17 do you think the defense case -- I know a lot of your case will 18 go on through the cross-examination of government witnesses, 19 but -- 20 21 22 MR. MAC MAHON: I would, I would guess after consulting with Mr. Pollack a day at the most is what we have. THE COURT: All right. Out of an abundance of 23 caution, I think I should tell the prospective jurors that they 24 could be here through the end of January. 25 to deliberate, the potential that we might lose a day or so for I mean, given time Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 486 Filed 08/17/15 Page 19 of 37 PageID# 4699 19 1 snow days, all right? 2 but I think -- that's, that's the outside limit for this case, 3 right? 4 I don't want to spook jurors, either, So if I have a juror who says they're going to be out 5 of town February 3, that's not going to be a problem, right? 6 That's what we're all heading for. 7 MR. TRUMP: (Nodding head.) 8 THE COURT: All right, very good. 9 I think the last thing I need to address unless 10 there's any other housekeeping matters are, is the proposed 11 voir dire because there were some objections, and I want to run 12 by you-all what I think -- what I'm planning to tell the jury. 13 As you know, we start voir dire with the Court giving a brief 14 summary of the case. 15 much, but let me just tell you what I plan to tell the jury: 16 I think this is enough, it's not too The United States has charged the defendant, Jeffrey 17 Alexander Sterling, with six offenses, including several counts 18 of unauthorized disclosure of national defense information and 19 one count each of unlawful retention of national defense 20 information, mail fraud, unauthorized conveyance of government 21 property, and obstruction of justice. 22 These charges arise out of the publication in 2006 of 23 a book entitled State of War by James Risen, a Pulitzer 24 Prize-winning New York Times journalist. 25 9 of that book describes a CIA effort to undermine the progress Specifically, chapter Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 486 Filed 08/17/15 Page 20 of 37 PageID# 4700 20 1 of Iran's nuclear weapons program by having a person posing as 2 a former Soviet Union nuclear scientist offer to sell nuclear 3 weapon plans to Iranians. 4 but would contain flaws that would mislead the Iranians. 5 The plans were to appear accurate Chapter 9 included classified information about the 6 project and the human asset, who will be referred to as Merlin 7 throughout this trial. 8 9 The defendant, Mr. Sterling, was first employed by the Central Intelligence Agency in 1993. He had a Top Secret 10 security clearance, and during the time period of 2000 to 11 2002 -- or January 31 of 2002, he was involved as one of the 12 handlers of Mr. Merlin and was aware of the project at issue in 13 chapter 9. 14 The government alleges that it was the defendant who 15 was the source of the classified information in chapter 9 to 16 Risen and that as a result of the publication of the book, the 17 national defense was damaged. 18 when subpoenaed to testify before a grand jury about the leak, 19 the defendant destroyed documents. 20 The government also alleges that Then I'm going to ask the jury if they have 21 heard/read/seen anything about this case and then go into the 22 general inquiry. 23 MR. MAC MAHON: 24 THE COURT: 25 MR. MAC MAHON: If I may, Your Honor? Yeah. This came up before. Mr. Sterling Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 486 Filed 08/17/15 Page 21 of 37 PageID# 4701 21 1 has access to the specific program that we're talking about in 2 terms of the -- was actually in, there's even some debate about 3 that, but in early May of 2000. 4 Classified Program No. 1 through 2002. 5 won't be corrected by the government on that, either. 6 He did not have any access to There isn't any -- I So when, when you instruct the jury that he had 7 access through 2002, that expands the time period of what we're 8 going to be arguing about in the case. 9 He was an employee -- 10 11 THE COURT: It's just not accurate. What is -- he was an employee of the Central Intelligence Agency until January 31 of 2002. 12 MR. MAC MAHON: No, I don't -- 13 MR. TRUMP: Yes. 14 THE COURT: Yes. 15 MR. MAC MAHON: 16 THE COURT: 17 MR. MAC MAHON: 18 MR. POLLACK: That's what the indictment says. He was on -- Administrative leave? He was -- Mr. Pollack may know that. I'm sorry, Your Honor. Your Honor, if 19 I understood the instruction, it said that he was the handler 20 of the human asset through that date. 21 of the human asset through May of 2000 even though he was 22 employed by the CIA until January of 2002. 23 MR. TRUMP: That's correct. 24 THE COURT: All right. 25 He was only the handler So when did he -- his time period of being a handler of the asset was for what time Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 486 Filed 08/17/15 Page 22 of 37 PageID# 4702 22 1 period? 2 3 MR. POLLACK: 2000. 4 5 From December of 1998 through May of THE COURT: All right, but he left -- and continued to be employed by the CIA until January 31 of 2002. 6 MR. TRUMP: Right. 7 THE COURT: All right. 8 MR. TRUMP: Our preference would be not to include 9 Pulitzer-winning -- 10 THE COURT: I'm sorry? 11 MR. TRUMP: Pulitzer Prize-winning journalist for 12 Mr. Risen. 13 as I think you heard from the deposition, there are a lot of 14 inaccuracies in this chapter, so we are not going to be 15 applauding Mr. Risen's research. 16 It -- I know it, it will come from the Court, but But in terms of the statement, "The disclosures that 17 are charged occurred in 2003 and 2006," the way it's charged, 18 it's not just the book. 19 2003 even though the article was not published, and the harm 20 occurred, the potential damage was both 2003, then again in 21 2006. 22 THE COURT: It was the disclosures to Risen in All right. Well, again, my job is just 23 to give a fairly accurate, simple overview of the case. I am 24 going to -- I think because there's been so much coverage 25 recently about this case, I think I should add in the question Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 486 Filed 08/17/15 Page 23 of 37 PageID# 4703 23 1 about pretrial publicity that -- because that's why Risen has 2 to be mentioned because Mr. Risen has been on, I believe, 60 3 Minutes. 4 last week after he testified. 5 There have been major articles. The Post had one So I think I need to just alert the jury and say, you 6 know, have any of you seen Mr. Risen talk about this case or 7 his involvement? 8 MR. TRUMP: Certainly, Your Honor. 9 THE COURT: Yeah. 10 MR. TRUMP: I think the labeling of the time frame 11 2003 and 2006 is important and the labeling of the damage as 12 potential damage because that's the legal standard. 13 THE COURT: All right, so that's the ballpark idea of 14 what I'm going to say to the jury in terms of describing the 15 case. 16 And then in terms of the voir dire, because I did -- 17 I don't normally do this, but I think to make things simpler, 18 the government's proposed voir dire, 1 and 2 were not objected 19 to, so those are in. 20 and I will not be giving that. 3 had been withdrawn by the government, 21 Defense objected to No. 4, where the government 22 was -- wanted me to ask have any members of the jury ever 23 provided an anonymous tip, served as an anonymous source, or 24 provided information anonymously or otherwise to any 25 journalist, reporter, or news media? Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 486 Filed 08/17/15 Page 24 of 37 PageID# 4704 24 1 I think that's a very fair and appropriate question, 2 and I'm also going to add, though, have any ever worked as a 3 journalist, because I think that's also appropriate, and 4 possibly maybe even whether they've ever attended journalism 5 school, because the whole issue about newsman's privilege comes 6 up in those programs, and newsman's privilege is an issue sort 7 of lurking in the background of this case. 8 9 There were no objections to No. 5, and what I'm going to do with No. 5, though, is expand it, not just worked for 10 but, I think, employed by or had any business dealings with, 11 because we have so many independent contractors now who work 12 for intelligence agencies, that we would want to include them. 13 And it's not just going to be the CIA. It will be, 14 the government has requested any other intelligence agency of 15 the United States government, and then I'm going to 16 add "including any congressional committees dealing with 17 intelligence issues," which incorporates the issue you wanted 18 about the Senate but without, you know, particularly 19 pinpointing it. 20 And I'm going to add in that question whether the 21 work had been in any capacity because I think you, you had a 22 specific question about acting as a case officer, and we don't 23 want to get into that level of detail. 24 25 And I obviously will have to tell the jurors if any of them do have an answer to that question, they'll have to Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 486 Filed 08/17/15 Page 25 of 37 PageID# 4705 25 1 approach the bench because that one would have to be held with 2 our special equipment most likely, all right? 3 No. 6 would, would repeat that; that is, have they, 4 any members of the panel had any disputes with or legal claims 5 against the CIA or any other agency of the United States 6 government? 7 the government wanted that one. So that would expand that a little bit. I mean, 8 7, I think there was no objection to 7. 9 There was an objection to 8, which asks jurors for 10 their opinions about the work or mission of the Central 11 Intelligence Agency. 12 give those early instructions that you both know I do about 13 what the juror's role is, and generally, if they have any views 14 about the issues in this case that they think would interfere 15 with their ability to judge it fairly, I think that question is 16 sufficiently broad to cover this type of a specific concern. 17 So I'm not probably going to give 8. 18 That's problematic. I think because I And then 9 addresses the issue about security issues, 19 the use of the names. 20 issue there so that we are thoroughly discussing with the 21 potential jurors whether there would be an impact on them from 22 seeing a screen in the courtroom or from the fact that the full 23 names are not being used for some of the witnesses. 24 going to give 9 that way. 25 It also, I'm going to add the screen So I am 10 is out. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 486 Filed 08/17/15 Page 26 of 37 PageID# 4706 26 1 The government wanted 11 withdrawn, and I'm curious, 2 probably if they've ever worked for an intelligence agency, 3 that probably would cover 11, but I thought 11 was actually a 4 fairly relevant question. 5 have received any training regarding classified information or 6 possessed a security clearance. 7 in the other question, but the government wanted it withdrawn, 8 and I wasn't sure whether that's really the case. 9 MR. OLSHAN: That asks whether any of the jurors I think that will be captured We don't have a strong opinion about 10 that one. 11 questioning, maybe the next question as well, but if the Court 12 would prefer to give it, that's fine. 13 We agree that it's probably covered by prior THE COURT: All right. The next question, 12, asks 14 if anyone's ever been investigated or charged with improper 15 possession of classified documents. 16 relevant question. 17 anybody ever been involved in investigating that kind of a leak 18 or been called as a witness in an investigation involving the 19 misuse of classified documents. 20 have that. I think that's certainly a I also think we should add to that has I think that is important to 21 13 will be, will be asked. 22 And then 15 through 18, there were no objections from 23 the, from the defense, so I will ask all of those questions. 24 25 14 has been withdrawn. In terms of the defense instructions, some of these -- Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 486 Filed 08/17/15 Page 27 of 37 PageID# 4707 27 1 MR. OLSHAN: 2 THE COURT: 3 MR. OLSHAN: 4 Yeah. Briefly, in our reply to the defense's objections to the government's proposed voir dire -- 5 THE COURT: 6 MR. OLSHAN: 7 Your Honor? Right. -- as to No. 2, we had suggested an additional or alternative related to Mr. Risen. 8 This is document 383. 9 THE COURT: 10 MR. OLSHAN: Um-hum. And I think the Court may have addressed 11 this somewhat already, but just inquiring whether any of the 12 prospective jurors have an opinion one way or the other about a 13 journalist's appearance in a criminal trial or refusal to 14 provide information about sources or -- source or sources. 15 THE COURT: I think 2 has -- some version of 2 does 16 have to be added. 17 point about their views about The New York Times, Risen, or 18 Simon & Schuster, so I'll make sure that that's all, I think, 19 packed into that particular instruction. 20 21 I'm also -- the defense had asked at one Why do we have separate instructions about Patrick Lang and the second person on your list? 22 MR. MAC MAHON: 23 THE COURT: No particular reason other than -- Anybody who's -- anyone who's going to be 24 a witness, the jurors will have gotten any witness's name and 25 be able to tell us if they know these people. That should be Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 486 Filed 08/17/15 Page 28 of 37 PageID# 4708 28 1 sufficient. 2 3 MR. MAC MAHON: really remember, Your Honor. 4 THE COURT: 5 MR. MAC MAHON: 6 Okay. But those were withdrawn as included somewhere else. 7 8 This was done in one, 11, I can't THE COURT: All right. And so 3, 4, and 5 are essentially going to be given one way or the other. 9 And again, 6 is too vague a question. I, I think 6 10 will be adequately covered in the general questions that I give 11 them. 12 I've added what you wanted in 7 to what I call the 13 government's question No. 5, and No. 8 is just asking for an 14 opinion about whether certain types of people keep information 15 confidential. 16 things. 17 I'm not asking for people's opinions about Now, why is service in the U.S. military relevant to 18 this case? I don't think we have any military issues at all. 19 It's on your list. 20 Do you want that out? I'm just, I'm just going with your list. 21 MR. MAC MAHON: We'll withdraw that one. 22 THE COURT: 23 The same way with nuclear weaponry, I don't know why All right, that's out. 24 that's relevant to this case. Concerns about an Iranian 25 nuclear program, that's a sufficient issue in this case that I Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 486 Filed 08/17/15 Page 29 of 37 PageID# 4709 29 1 think that's a proper question, but not if people are generally 2 involved with the design or -- 3 MR. MAC MAHON: We'll withdraw that one. 4 THE COURT: 5 I'll do a version of 11. 6 I don't see how 12 is of any value to this case All right, so 10 is also going to be out. 7 because again, I'm asking if anybody has been a journalist or 8 has been to journalism school, and I think that's sufficient, 9 so I'm not going to ask 12. 10 13 and 14 are already going to be covered. 11 15, "Have you ever worked as an intelligence 12 analyst?" I've covered that in the more general question, "Have 13 you worked in any capacity for any intelligence agency?" 14 16, "Do you have an opinion as to whether Iran should 15 be allowed nuclear weapons?" 16 in the more general question about the fact that the Iranian 17 nuclear program is, you know, an issue in this case, is that 18 going to affect your impartiality? 19 Again, that's going to be asked I think 17 is, that's the one about ever filed an 20 employment suit against your former employer. 21 Mr. Sterling did and the article about that is in one of the 22 Risen things, that that's a fair question, so I will give 17. 23 I think because And again, these "Do you believe" various questions I 24 don't think are appropriate, so I'm not going to give the last 25 ones. I think to some degree, they're subsumed anyway in some Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 486 Filed 08/17/15 Page 30 of 37 PageID# 4710 30 1 of the other ones that I'm giving. 2 "Do you have strong opinions about Condoleezza Rice?" 3 Again, her name will appear on the witness list, and I think 4 that's all we need to do with that, so I don't see any -- 5 unless the government wants me to ask that question. 6 7 MR. OLSHAN: We don't think there's a need, Your Honor. 8 THE COURT: All right. 9 MR. MAC MAHON: 10 THE COURT: 11 MR. MAC MAHON: 12 I guess the only -- Yeah. Do you want us to stand up, Your Honor? 13 THE COURT: Go ahead. 14 MR. MAC MAHON: The only reason this one does ring a 15 bell is because of the next question really, the very 16 high-ranking government official who's going to come, and I 17 know your preliminary instructions tell the jury to consider 18 the testimony of all witnesses in equal weight -- 19 THE COURT: 20 MR. MAC MAHON: 21 22 23 Yeah. -- but just because of her status, that was the reason that that was there. THE COURT: All right. All right, I will give that. I'll give 24 and 25 in a combined question. 24 And I've already addressed 26, and I've addressed 27. 25 And then, of course, I will add whether any of the Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 486 Filed 08/17/15 Page 31 of 37 PageID# 4711 31 1 witnesses have ever been jurors before, whether they have any 2 legal training. 3 think that's always appropriate in a criminal case. 4 they've ever been a witness in general, and then any scheduling 5 problem. 6 I don't think either side included that, but I So that gives you an overview of what the voir dire 7 is going to look like tomorrow, all right? 8 take some time with that many jurors here. 9 Whether So it's going to We've already had, I think, five excused. I hope 10 you've got the list now, and it's a frustrating list because 11 there are a fair number who don't tell us anything about their 12 employment status. 13 unemployed or what, but if for any reason the government has 14 any additional information, I mean, if you have filled in those 15 blanks, I think it would only be fair to share that with the 16 defense counsel. 17 So I don't know if they're retired or All right, I think that may have covered everything 18 that was on my list. 19 MR. TRUMP: Judge, I know from an administrative 20 standpoint, you like to have an order authorizing the use of 21 the equipment. 22 THE COURT: Oh, did you do one already? 23 MR. TRUMP: We have an order. 24 THE COURT: Excellent. 25 MR. TRUMP: And just out of curiosity, how does the Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 486 Filed 08/17/15 Page 32 of 37 PageID# 4712 32 1 Court propose handling the responses by the jurors to these 2 questions? 3 Individually? THE COURT: At the podium? No, my practice is in open court. I 4 think it helps other jurors to, you know, jog their memory. I 5 will add at the very end a question I don't always ask but I 6 will say: 7 process either from the Court, counsel, or other jurors that 8 makes you think you could not sit as an impartial juror in this 9 case? Is there anything you've heard during the voir dire 10 MR. TRUMP: And I -- 11 THE COURT: By the way, I don't know whether we 12 should get into any of what's happened in France. I mean, you 13 know, national security right now is a hot issue, and I had 14 thought about whether any current events might in any respect 15 affect their ability to judge this case. 16 about that, and you can let me know tomorrow morning if you 17 think we have to add anything. 18 MR. TRUMP: I'll let you think I think Your Honor is attuned to this, 19 but I would ask that even though some jurors will obviously be 20 excused because of their responses to the questions, that we 21 just allow them to sit down and go on to the next question 22 rather than giving the next juror a reason to say: 23 get out of this by answering a particular way. 24 25 THE COURT: I never do it. Oh, I can They're going to be stuck in the courtroom until it's all over, yeah. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 486 Filed 08/17/15 Page 33 of 37 PageID# 4713 33 1 MR. TRUMP: We had one thought about the screened 2 witnesses and the use of their names that may be helpful. 3 example, when a witness such as Lori D. is testifying, that 4 we -- to avoid counsel using her last name, that we actually 5 put "Lori D." in front of the witness stand so that we are 6 constantly reminded not to use a last name. 7 For Now, with her, it's probably not much of an issue 8 because she's not going to be on the stand very long, but with 9 respect to another witness that we are all familiar with and we 10 talk about frequently, using his last name, it might be helpful 11 that we have it up there as a constant reminder that we can 12 only refer to these witnesses first name, last initial. 13 14 I throw that out there because I personally am afraid that I might slip and use a last name. 15 16 THE COURT: I have no problem with that. defense counsel don't. 17 MR. MAC MAHON: 18 THE COURT: Just make sure that it's -- 19 MR. TRUMP: Just the screened witnesses. 20 THE COURT: Just make sure it's clear. 21 MR. MAC MAHON: 22 23 24 25 I assume them. No, Your Honor, that's no problem. Just as long as we do it with all of As long as we do it with all of the screened witnesses. THE COURT: Yes, all screened witnesses will be -- and I'll, again, I'll explain that to the jury, all right? Are there any other housekeeping matters either side Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 486 Filed 08/17/15 Page 34 of 37 PageID# 4714 34 1 can think of that we might need to address before we get 2 started tomorrow morning? 3 MR. MAC MAHON: 4 THE COURT: 5 MR. OLSHAN: Not for the defense, Your Honor. All right. Your Honor, I just wanted to raise one 6 issue to make sure it's not going to be an issue for opening, 7 which is to make clear at least our position that this case is 8 about the unauthorized disclosures at issue in this case, not 9 about any other unauthorized disclosures, not about any other 10 leaks that have occurred out in the world. 11 There's been a lot of press about that, and we want 12 to make clear -- or we wanted to make it clear with the defense 13 that our position is certainly none of that has any place in 14 this trial. 15 that if that issue were to come up as to sort of a selective 16 prosecution argument about why is this person being prosecuted 17 versus other people who may have done this, that we're prepared 18 to litigate that. 19 So we wanted to sort of flag that for the Court, THE COURT: I don't think that's appropriate for the 20 jury. 21 becomes relevant, you know, at the end of this case. 22 there's still an open motion on that issue, but if that's not a 23 question for the jury, I don't expect that to be a problem. 24 25 It may be appropriate for the Court if and when it MR. MAC MAHON: I mean, I have no intention of arguing that because General Petraeus hasn't been charged, that Mr. Sterling Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 486 Filed 08/17/15 Page 35 of 37 PageID# 4715 35 1 should walk -- 2 THE COURT: But that -- 3 MR. MAC MAHON: -- or the other people that we've 4 talked about who, higher government officials who aren't 5 prosecuted. 6 7 I have feelings about that, but I'm not going to argue that, Your Honor. 8 9 THE COURT: That does raise an issue, though, because the Petraeus article was, I think, the lead article in The Post 10 this weekend. I mean, both sides should think carefully about 11 whether or not the jury should be asked something about that, 12 not necessarily Petraeus but just this whole issue of, you 13 know, government leaks. 14 Snowden. I mean, we also are not mentioning 15 MR. MAC MAHON: 16 THE COURT: Snowden. Snowden. But, you know, there are an 17 awful lot of people who have strong feelings that he's a 18 patriot and not a, not a criminal. 19 question of some sort needs to be asked, and whether it should 20 be done specifically or in a general form, I'll let both sides 21 think about that. I'm going to think about it, too, because I 22 want a fair jury. I want a jury of 14 people who are going to 23 come in here, you know, unbiased, and there are some very tough 24 issues in this case in that respect. 25 MR. OLSHAN: So I think that, that We understand, Your Honor. I think our Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 486 Filed 08/17/15 Page 36 of 37 PageID# 4716 36 1 position would be that the generalized questioning in the 2 proposed voir dire would probably ferret out from people things 3 that are related to these specific cases, as opposed to 4 flagging for them specific names, specific, specific incidents, 5 but we'll discuss and we'll get with the defense and -- 6 THE COURT: All right. If for any reason, and I'm 7 not inviting this, but if there are for any reason last-minute 8 issues, because what I don't want to do is get all these 9 civilians in here and then start having to sit around waiting 10 for us to resolve stuff, you need to let us know so that we 11 can, you know, do it at 9:30 tomorrow morning, but at this 12 point, there shouldn't be any last-minute things, and we should 13 be able to get this case started tomorrow. 14 MR. MAC MAHON: 15 THE COURT: 16 MR. OLSHAN: 9:30 or 10:00? Yeah. I was going to ask the same question. 17 The Court raised a good point. 18 THE COURT: 19 MR. OLSHAN: 20 THE COURT: What time should we -- Be up here? Yes. If there are no problems, being here 9:45 21 is fine. 22 little before ten, so once, you know, they start coming in the 23 courtroom, obviously, be sensitive to that. 24 25 I mean, we're going to start bringing the jurors in a And don't be surprised, I'm having the screen brought up, but it's going to be out in the hall in the corner so that Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 486 Filed 08/17/15 Page 37 of 37 PageID# 4717 37 1 we don't have a long break in getting it in here, but I'm not 2 planning to bring it in -- once the jury is in and we take -- I 3 ideally would like to bring the screen in during the luncheon 4 recess, and we'll keep it as far over here and closed so that 5 during opening statements, you know, it's not out there, and 6 then as soon as the first witness is ready to go, we'll close 7 the screen up. So we may have to take a break when we do that. 8 But that's the plan for tomorrow, all right? 9 MR. OLSHAN: Very well. 10 THE COURT: 11 MR. MAC MAHON: 12 THE COURT: 13 MR. MAC MAHON: 14 15 All right, anything else? No, Your Honor. If not, we'll recess court for the day. Thank you. (Which were all the proceedings had at this time.) 16 17 18 19 CERTIFICATE OF THE REPORTER I certify that the foregoing is a correct transcript of the record of proceedings in the above-entitled matter. 20 21 22 /s/ Anneliese J. Thomson 23 24 25 Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595