Case 1:17-cr-00034-JRH-BKE Document 164-1 Filed 11/27/17 Page 1 of 6

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
AUGUSTA DIVISION
UNITED STATES OF AMERICA
v.
REALITY LEIGH WINNER
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NO. 1:17-CR-0034

DEFENDANT’S MEMORANDUM IN SUPPORT OF MOTION TO LIFT
UNCONSTITUTIONAL LIMITATIONS AND MOTION TO ENFORCE RELEVANT
PROVISIONS OF THE PROTECTIVE ORDER; AND REQUEST FOR A HEARING
Defendant Reality Leigh Winner (the “Defendant” or “Ms. Winner”) submits this
memorandum in support of her Motion to Lift Unconstitutional Limitations Imposed by the
Government and Motion to Enforce Relevant Provisions of the Protective Order. The Defendant
also requests a hearing on the instant Motion. The defense respects the legitimate security
concerns surrounding the handling of any classified or potentially classified information in this
case and the need for appropriate protocols to address those concerns. However, a number of
limitations and concerns have arisen that present a serious obstacle to the defense’s ability to
gather evidence and prepare its case, and that are contrary to the Constitution and the
presumption of openness in federal courts. Specifically, the defense is limited in its ability to (1)
conduct research necessary to gather evidence on elements of the offense and (2) communicate
with one another in a timely and efficient manner, and the defense requests that the Court afford
Ms. Winner relief on these issues as set forth below. Also, the defense requests that the Court
enforce and clarify provisions of the Protective Order, including placing redacted copies of
filings on the public docket. With respect to the latter point, despite a significant amount of time
passing since the submission of several pleadings and filings containing classified or potentially

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classified information in this case, the Government has failed to provide redacted copies of such
filings for filing on the public docket, even though the Protective Order requires such.
Accordingly, Ms. Winner respectfully requests the Court grant the relief requested below.
I.

ARGUMENT AND CITATION OF AUTHORITIES
A.

Limitations on Electronic Research

As the Court noted at the November 3, 2017 hearing, Ms. Winner has been limited in
how members of her defense team who have received U.S. Government security clearances may
electronically search for information to support her argument that the Government cannot
establish key elements of the offense, including, for example, that the alleged classified
intelligence reporting contained information relating to the national defense (i.e., that the
information could actually threaten the national security of the United States if disclosed, and
that the information was closely held), and that Ms. Winner acted with the requisite mens rea
[See Doc. 112]. This limitation is extremely injurious to Ms. Winner’s ability to prepare and
present her defense under 18 U.S.C. § 793(e).
“[A] criminal defendant has a right protected by the Fifth and Sixth Amendments to look
for material evidence.” United States v. Carmichael, 326 F. Supp. 2d 1267, 1298 (M.D. Ala.
2004). The Fifth Amendment affords defendant a due process right to gather “evidence that is
material to [her] guilt or innocence.” Id. at 1297. And under the Sixth Amendment, a defendant
has a right to have her attorneys “investigate the case and prepare a defense for trial.” Michigan
v. Harvey, 494 U.S. 344, 348 (1990). The limitations on cleared defense counsel’s ability to
search the internet inhibit counsel’s ability to gather evidence on elements of the offense, and
therefore abridge both of these rights. See, e.g., Milton v. Morris, 767 F.2d 1443, 1445 (9th Cir.

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1985) (finding that the government’s “materially impeding use of . . . tools for defense
preparation” violated defendant’s due process rights).
At the November 3, 2017 hearing, the Court indicated that the defense should be allowed
to conduct searches relating to the above-listed elements in an “unrestricted” manner. This has
not yet happened. The continued delay has prejudiced the defense’s ability to prepare Ms.
Winner’s case. Accordingly, Ms. Winner respectfully requests that the Court order appropriate
procedures that will allow her counsel to gather evidence critical to her defense.
B.

Limitations on Correspondence and Lack of Classified Email and
Phone Lines

The defense has raised this concern before and does so again given the difficulties that
defense counsel have encountered as this case has progressed. Defense counsel who hold
security clearances must have certain conversations -- including conversations involving nearly
anything of substantive consequence (discussion regarding the document at issue, discussion
regarding publicly-available news articles, discussion regarding defensive strategies relating to
the evidence and elements, etc.) in this case -- in one of the two currently-operative SCIFs, and
they may communicate with Ms. Winner on those topics only in one of those SCIFs.1 The
Government has defined the scope of communications that must take place in a SCIF extremely
broadly, substantially constraining defense counsel.

This limitation imposes a particularly

significant burden on cleared defense counsel given that they located in Atlanta, Georgia; New
Orleans, Louisiana; Baltimore, Maryland; Knoxville, Tennessee; and Augusta, Georgia,
especially considering that the Government has not given defense counsel access to classified
email in the SCIFs so that they can communicate without all physically being located in a SCIF

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The one exception is that one of the defense counsel may have communications via secure phone in the city of that
counsel’s location.

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at the same time.2 And the limitations are particularly unfair because the Government does have
access to classified email and does not face these limitations. As trial approaches, the burden
imposed by these limitations will only increase, and defense counsel therefore respectfully
requests that this Court address these issues now by requiring the Government to provide defense
counsel additional secure phone lines or classified email capabilities.
C.

Failure to Post Redacted Copies of Filings Containing Classified
Information.

The Government has failed to redact classified filings and place the unredacted portions
on the public docket and/or provide unredacted portions of these pleadings to the Defendant to
place on the public docket.3 The Protective Order [Doc. 58] requires that, for any defense filing
that contains classified information, the Government must mark “the classified portions of the
document, and only those portions, . . . with appropriate classification markings,” and “all
portions” of the document “that do not contain classified information shall be immediately
unsealed by the Classified Information Security Officer and placed in the public record” [Doc.
58 ¶ 15 (emphasis added)].4 This has not yet happened for the defense’s October 19, 2017 filing.
And while the Protective Order does not speak one way or the other to the posting of
Government filings that contain classified information [See id. ¶ 16], the “presumption of
openness” for all judicial filings dictates that the Court should follow the same process for
classified Government filings. United States v. Ochoa-Vasquez, 428 F.3d 1015, 1030–31 (11th
2

Defense counsel does have the ability to use secure facsimile in the SCIFs, but there seem to be some limitations
on how much information may be transmitted in that manner.

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The defense understands that, ultimately, it is the responsibility of the intelligence community to redact the
classified filings (not the responsibility of the prosecution team or the CISO).

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Importantly, the Government’s decision to mark portions of a filing as classified is a separate question from
whether information in the filing should remain under seal on the Court’s docket. Any time a party wishes to keep a
filing under seal, it must overcome the “presumption of openness” that applies to court filings and demonstrate a
compelling interest in keeping the information under seal. United States v. Ochoa-Vasquez, 428 F.3d 1015, 1030–
31 (11th Cir. 2005).

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Cir. 2005). The Order of the District Court for the District of Columbia attached as Exhibit A
provides a potential exemplar for this Court’s consideration. United States v. Kim, No. 1:10-cr00225-CKK, ECF No. 174 (D.D.C. Oct. 18, 2013). The district court required that for “any”
filing that potentially contained classified information, whether by the Government or the
defense, the intelligence community had to “complete their review, make any required
redactions, and provide the Court with a redacted version for filing on the public docket within
ten (10) business days” of the original filing of the document under seal with the court. The
defense requests that this Court adopt and enforce a similar process.
II.

CONCLUSION
For the reasons stated above, Ms. Winner respectfully requests that that Court grant the

Motion to Lift Unconstitutional Limitations Imposed by the Government and to Enforce
Relevant Provisions of the Protective Order. In particular, Ms. Winner requests (a) that the
Court order that the defense and its experts may engage in “unrestricted” searches (electronic and
otherwise) in connection with gathering evidence relating to the element of the offense; (b) that
the Court consider additional procedures (including additional classified phone lines and/or
classified email) to lessen the burden on defense counsel in connection with its preparation in
this case (burdens not imposed on the Government); and (c) that the Court enter an order
requiring, for any classified filing or submission, that the Government provide redacted versions
of such filings for filing on the public docket within ten (10) days of filing. In addition, Ms.
Winner requests a hearing on this matter and that the Court grant such additional relief as may be
warranted.

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Respectfully submitted,
/s/ Joe D. Whitley
Joe D. Whitley (Bar No. 756150)
Admitted Pro Hac Vice
Brett A. Switzer (Bar No. 554141)
BAKER, DONELSON, BEARMAN,
CALDWELL & BERKOWITZ, P.C.
3414 Peachtree Rd., NE Suite 1600
Atlanta, GA 30326
(404) 577-6000
JWhitley@bakerdonelson.com
BSwitzer@bakerdonelson.com

John C. Bell, Jr. (Bar No. 048600)
Titus T. Nichols (Bar No. 870662)
BELL & BRIGHAM
PO Box 1547
Augusta, GA 30903-1547
(706) 722-2014
John@bellbrigham.com
Titus@bellbrigham.com

Thomas H. Barnard (Az. Bar No. 27488)
Admitted Pro Hac Vice
BAKER, DONELSON, BEARMAN,
CALDWELL & BERKOWITZ, P.C.
100 Light Street.
Baltimore, MD 21202
(410) 685-1120
TBarnard@bakerdonelson.com

Matthew S. Chester (La. Bar No. 36411)
Admitted Pro Hac Vice
BAKER, DONELSON, BEARMAN,
CALDWELL & BERKOWITZ, P.C.
201 St. Charles Ave., Suite 3600
New Orleans, LA 70170
(504) 566-5200
MChester@bakerdonelson.com
Jill E. McCook (Tn. Bar No. 033813)
Admitted Pro Hac Vice
BAKER, DONELSON, BEARMAN,
CALDWELL & BERKOWITZ, P.C.
265 Brookview Centre Way, Suite 600
Knoxville, TN 37919
(865) 549-7129
JMCook@bakerdonelson.com
ATTORNEYS FOR DEFENDANT
REALITY LEIGH WINNER

CERTIFICATE OF SERVICE
I hereby certify that on November 27, 2017, I electronically filed the foregoing with the
Clerk of the Court using the ECF system, which sent notification of such filing to counsel of
record for all parties.
/s/ Joe D. Whitley
JOE D. WHITLEY

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