Written by Jeff Stone

Nearly three years after WikiLeaks began publishing secret CIA hacking tools, the legal team for the former agency employee who allegedly stole those files will try to convince a jury he did so in order to reveal the government’s methods for breaking into widely used consumer technology.

Based on the evidence, it will shape up to be a difficult argument. And that’s before you consider the current environment, in which the U.S. justice system has taken a hard-line approach to those who go public with classified information.

It’s also a fresh strategy for the defense. The U.S. has charged former CIA software engineer Joshua Schulte with transmitting files detailing the agency’s arsenal of hacking tools, but until now his lawyers have given no indication that he acted out of conscience. Government prosecutors, meanwhile, will introduce evidence starting Monday that Schulte, now 31, was motivated by nothing more than revenge for what he perceived to be mistreatment by a colleague and management at the agency.

Unlike former U.S. National Security agency contractor Edward Snowden, who leaked details about NSA surveillance programs after complaining internally, Schulte has not demonstrated that he actually had any ethical concerns with the CIA’s work. Government employees who follow the proper procedure for filing complaints can still be prosecuted if they go public with classified information. But pointing to a documented history of moral concerns could help a defendant portray themselves as a whistleblower motivated by his sense of morality, said Bradley Moss, an attorney specializing in national security whistleblowing at the Washington law firm Mark Zaid P.C.

During more than a year of pre-trial wrangling, Schulte’s defense team has given no indication that he allegedly provided CIA hacking tools to WikiLeaks for any reason other than that he did not get along with his boss.

“They’re throwing s–t at the wall,” Moss said.

The government’s case

While much of the government’s evidence hasn’t been revealed, a series of courtroom maneuvers and legal filings have provided a glimpse into the case prosecutors will present when the trial begins.

As a CIA employee, Schulte is accused of abusing his access to start stealing classified documents during the spring of 2016. The files ultimately would make their way to WikiLeaks, which spent much of 2017 publishing the Vault 7 files, one of the largest ever disclosures of classified intelligence community information.

Publication of documents detailing the government’s ability to spy on mobile operating systems, web browsers, smart TVs and an array of other systems immediately exposed U.S. adversaries like Russia and China to American cyber-warfare strategies, allowing them to take defensive measures, and making it possible for common hackers to replicate nation-state activities against any targets they chose.

The disclosure also came amid a digital arms race between nations as the U.S. government realized that hackers tied to the Russian government had stolen emails from the Democratic National Committee, then used WikiLeaks to boost Donald Trump’s candidacy. All the while, prosecutors have said, Joshua Schulte was leaving clues about his role in the breach.

Schulte began to have “significant problems” as a CIA employee during the summer of 2015, prosecutors wrote in a long court filing made public in November. He began feuding with an unnamed employee, who complained to superiors that Schulte behaved in an abusive manner, including regularly making racist remarks.

Then, in February 2016, prosecutors wrote, Schulte grew agitated with management’s decision to hire a contractor to do some of the work Schulte had been assigned. He forced his way into a meeting between a CIA manager and the contractor to suggest the contractor might jeopardize the security of CIA tools and operations.

“After the meeting, Schulte sent emails complaining about the situation, and he told others that he was going to cause problems because of it, including by filing a complaint with the CIA’s Inspector General,” the filing states.

At roughly the same time, though, Schulte’s problems with his unnamed co-worker escalated. The co-worker convinced CIA management to reassign Schulte’s work to another employee, at which point Schulte responded by claiming the employee had threatened him. Schulte then accused management of being “indifferent” toward his claim, while an investigation was ongoing.

During this time, prosecutors wrote, “Schulte was moved to an ‘intern desk,’ while his co-worker had been moved to a ‘prestigious desk with a window.’”

Within weeks, according to the government, CIA higher-ups revoked Schulte’s administrative privileges, and he moved forward with a plan to steal hacking tools.

Schulte was first arrested in August 2017 for allegedly possessing and transmitting thousands of pictures and videos depicting child pornography. The Justice Department waited until June 2018 to charge him with the theft and disclosure of classified material. Then, in October 2018, prosecutors alleged Schulte also was using contraband cell phones from behind bars at Manhattan’s Metropolitan Correctional Center.

In notebooks discovered in Schulte’s cell, law enforcement officials say they found a diary where Schulte detailed plans to provide WikiLeaks with more information, and carry out a covert “Information War” against the government. The journals include Schulte’s description of his “motive, intent preparation and planning” for a leak, the government has argued, and seem to include the equivalent of a written confession. (Days before trial, Judge Paul Crotty ruled the government will be allowed to introduce key elements parts of the notebooks to the jury.)

No clear defense strategy

Schulte’s attorneys has spent much of the past year arguing that prosecutors have not provided the defense team with sufficient evidence, that too much of the evidence is classified and taken issue with the idea that current CIA officials who might be called as witnesses would testify under pseudonyms. The defense recently argued that Schulte should not be tried under the Espionage Act, calling it unconstitutional, and that they have not had enough time to prepare for trial, despite multiple delays.

Few of these tactics have been successful. Judge Paul Crotty of the Southern District of New York dismissed challenges to the constitutionality of the Espionage Act, for example, and did not appear sympathetic during a recent hearing when attorney Sabrina Shroff said the defense, with less than two weeks before trial, had not had the opportunity to research potential witnesses.

Moving forward, Schulte’s lawyers appear to be arguing that he nothing more than a concerned citizen. Shroff recently asked the court whether potential jurors might have an opinion on language like “whistleblower” or “leaker,” given the national headlines in recent months.

The trial comes after a court in 2018 sentenced Reality Winner, a former NSA translator who pleaded guilty to leaking a classified government report on Russian hacking, to more than five years in prison. At 26 years old, Winner was the first person to be sentenced under the Espionage Act during the Trump administration, though the Obama Justice Department pursued a number of similar investigations.

A former senior official in the Department of Treasury pleaded guilty on Jan. 13 to conspiring to unlawfully disclosing financial transactions that included information about the Trump presidential campaign’s dealings with Russia.

“It’s a hot topic lately,” Shroff said during a recent pre-trial hearing.

In order to qualify as a whistleblower under federal law, said Bradley Moss, government employees must submit a formal complaint to the relevant inspector general, which under the right circumstances would forward the complaint to congressional intelligence committees. Even if a government worker goes through that process, then makes classified information public, they are still breaking the law, he added.

“The way this trial is going is the same way Snowden’s would be going if he came back to the U.S.,” said Moss. “He would throw up a bunch of pretrial motions about the Espionage Act, and it would lose every time.”

The goal of a whistleblower defense, even if it doesn’t meet the definition under the law, would be to sway a jurors in favor of jury nullification, Moss added. Depending on the jurisdiction, jurors may think a defendant is guilty of a crime, but find them not guilty because of jurors’ moral objections to the law.

“You’re just doing what you can do,” Moss said of the technique.