In CIA Leaks Trial Schulte Renews Mistrial Bid Saying Suspect Michael Had Access to Vault7 Too By Matthew Russell Lee, Patreon Thread

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SDNY COURTHOUSE, Feb 22 – A week before the trial of accused CIA leaker Joshua Schulte, set to begin February 3, a public hearing was held on January 27 about the US Attorney's requests to seal the courtroom for some witness and limited media attendance to a single pool reporter banned from reporting any physical characteristics of the CIA witnesses.

On this issue, Inner City Press before the public hearing filed three one-page letters in opposition, the last one here. At the end U.S. District Court for the Southern District of New York Judge Paul A. Crotty asked Assistant US Attorney Matthew Laroche if his Office objected to live video feed to the SDNY Press Room, not showing the witnesses' faces. AUSA Laroche said no objection - which should mean feeds for this all other proceedings, when requested. On February 4, Inner City Press live-tweeted the opening arguments, here.

Now on February 22 Schulte's lawyers have pressed harder for a mistrial based on the government's withholding information: "The government improperly suppressed Brady/Giglio material related to a CIA employee and government witness known to the jury as 'Michael.' For the reasons explained in the defense’s initial motion, the Court should order a mistrial. The government’s February 19, 2020 opposition (“Gov’t Opp.”) rests on a fundamental misapprehension. According to the government, “[n]either the Government nor the CIA believes anyone” other than Mr. Schulte was involved in the charged disclosures, see Gov’t Opp. at 1, and therefore, there is no Brady violation. Regardless of the government’s belief about who committed a charged crime, a defendant is constitutionally entitled to present evidence of alternative suspects, and the government is legally obligated to disclose materials in its possession suggesting that someone else may have committed the crime. The defense must receive this information from the government in time for its effective use at trial. See, e.g., Leka v. Portuondo, 257 F.3d 89, 103 (2d Cir. 2001) (“The opportunity for use under Brady is the opportunity for a responsible lawyer to use the information with some degree of calculation and forethought.”). See also United States v. Djibo, 730 F. App’x 52, 56 (2d Cir. 2018) (summary order) (finding court abused its discretion in denying new trial where it did not give defendant sufficient time to review late government disclosure that possibly contained exculpatory evidence); United States v. Robert Pizarro, No. 17 Cr. 151 (AJN), ECF Docket No. 135 (S.D.N.Y. May 17, 2018) (postponing trial, over government objection, and criticizing SDNY prosecutors for delaying production of evidence of a possible alternative perpetrator of the crime until the Friday before the start of trial; noting irrelevance of fact that government believed defendant, and not this possible alternative perpetrator, committed the crime); United States v. Reichberg, No. 16 Cr. 468 (GHW), 2018 WL 6599465, at *3-4 (S.D.N.Y. Dec. 14, 2018) (describing earlier trial postponement that was necessary because SDNY prosecutors delayed producing Brady material until five days before the start of trial); United States v. Russell, No. 16 Cr. 396 (GHW), 2018 WL 2088282, at *1-2 (S.D.N.Y. May 4, 2018) (granting new trial based on SDNY prosecutors’ “inadvertent” failure to disclose proffer notes, which would have “provided substantial grist for cross-examination” of witness and impeachment). Yet in this case, the government withheld material information from the defense until after the trial had already started, waiting until the literal eve of Michael’s testimony. Even then, the government did not make a full disclosure of all of the relevant information in its possession: a more complete disclosure came only after the Court undertook an in camera review of the CIA Memorandum and, later, Michael’s investigative file. And the investigative file reveals even more Brady/Giglio material that the government had not produced. If the government withheld all of this crucial material about Michael’s potential culpability and dishonesty until the Court took action, what else is it hiding? The government seeks to excuse its misconduct because the CIA Memorandum supposedly merely “questioned Michael’s credibility,” and because “that type of opinion evidence is inadmissible as a matter of law.” Gov’t Opp. at 14. The government is wrong on both counts. First, the CIA did not simply “question” Michael’s veracity: it determined, inter alia, that he is an immediate security risk. In any event, the government’s obligations under Brady and Giglio required disclosure whether or not the government believed the CIA Memorandum was admissible... The government also claims that its misconduct is of no consequence because Michael did not have the ability to access the “Altabackups” from which the Vault 7 material was allegedly copied. As Dr. Bellovin’s annexed declaration demonstrates, Michael did indeed have the ability to access those files—thereby underscoring his potential culpability and the significance of the government’s Brady violations."

Exhibits and transcripts first tranche here.

A second tranche of exhibits is here. And a 3d tranche here.

But it's not enough. On February 20 the government played extensive audio to the jury, and these are exhibits. They are the type of exhibits released in the Avenatti and even the first part of the OneCoin / Mark Scott trial. But despite Inner City Press politely contacting the Office on February 21, and some written exhibits in response being provided, none of the audio files were.

Judge Crotty on January 29 ruled that "[t]he Government is directed to make transcripts and exhibits available no later that the evening after the day of testimony." Even read as allowing a one-day delay, this is written on the evening of February 21 after the February 20 playing of audio files. Where are they? Where is Judge Crotty on this? Watch this site.

Now Schulte ha s moved for a mistr ial, based on the govern ment withholding material information until the middle of the tr ial: "Dear Judge Crotty: Defendant Joshua Adam Schulte respectfully moves for a mistrial because the government has improperly withheld critical discovery and trial materials, including exculpatory information, in violation of the Fifth and Sixth Amendments and the Federal Rules of Criminal Procedure. First, the government failed to disclose an internal August 2019 memorandum from the Deputy Director of the CIA for Counterintelligence to the Director of Security requesting that one of its employees, known to the jury as "Michael," be placed on enforced administrative leave because of suspicion, inter alia, that he was involved in the theft and disclosure of the Vault 7 and Vault 8 information (the "CIA Memorandum"). The request was granted and Michael has been on paid leave ever since. This information and any related documents should have been disclosed to the defense pursuant to Brady v. Maryland and Fed. R. Crim. P. 16 promptly in Augl,lst 2019-not in the middle of Michael's crossexamination six months later. See Tr. 1333. Second, despite repeated requests, the government improperly refused to permit the defense to inspect or copy the "mirror images"1 of the CIA's ESXi Server and FS0I Server (also known as the "NetApp" Server) (collectively, the "CIA Servers") ." We'll have more on this.

On February 19, Schulte's lawyer Sabrina Shroff during cross examination asked the CIA witness, Do you know how many people died in Pearl Harbor? Yes. And how many in Vault 7 or Vault 8? No answer. How many CIA personnel put at risk? No answer. But didn't you compare them? And so it went. Feb 19 threa d here.

On February 18, Schulte's lawyer Sabrina Shroff during cross examination of one of his many supervisors got at least two admissions of interest: that the CIA "typically" does not use offensive cyber tools against friendly foreign nations - what does it? - and that he considered contractors to be the same as the CIA. Inner City Press live-tweeted thread here. We will continue on this case.

Previously, AUSA David Denton said Schulte committed this most damaging leak because he was angry that his false accusation against a co-worker was rejected by the CIA.

Schulte's lawyer Sabrina Shroff in her opening emphasized that the CIA had not idea information had been taken, and still doesn't know who did it, or when. Instead, she said, the prosecution will focus on Schulte's time in the MCC. But she asked the jurors to consider if they too wouldn't be desperate if in the MCC, to reach out and prove their innocence.

The government put forward as a proposed first witness and expert Paul Rosenzweig of GWU Law School among other affiliations. Shroff objected to him being deemed an expert. And the trial was off - Inner City Press will live tweet it as much as possible. Watch this site.

More on Patreon here.

On transcripts, Inner City Press raised the issue of the high cost, for less corporate media. AUSA Laroche, seemingly contrary to his letter, said that transcript will be made available on some undefined delay, for redaction. But what about the costs? The Daily News noted no closures for El Chapo in the EDNY; the New York Post noted that a written description like blond or bald could hardly identify a witness and the AP correctly noted that in-house journalists in the SDNY do not seek to put anyone in danger.

Judge Crotty said he will issue an order soon; the request for US v. Schulte feeds has already been made. Watch this site.

Back on January 24, for which a feed was denied, an issue that arose was Schulte's letters complaining that his assigned counsel James M. Branden is not providing assistance of counsel. Now in the docket is a letter from Branden, dated January 24, stating that because of a hearing in White Plains he could not attend the final pre-trial conference for Schulte. Something is very wrong with this. And this:

A basic PACER search by Inner City Press finds that Schulte in April 2019 filed a civil lawsuit against the US Attorney General. There is a docket number: 19-cv-3346. Photo here.

But even on the SDNY Press Room PACER terminal when Inner City Press clicked on the Complaint, it replied, "You do not have permission to view this document." So who does? And is this a public court system? We will have more on this.

Assistant US Attorney Matthew Laroche argued that while prospective jurors will be shown witnesses real names, it will only by in hard copy and thereafter some 17 of them will be referred to by pseudonyms.

Schulte's lawyer Sabrina Shroff, still with the Federal Defenders for purposes of this case, insisted on calling these "fake names," and complained about the difficulties imposed in conducting basic research on potential witnesses.

US Attorney for the Southern District of New York Geoffrey S. Berman is asking to have the public excluded from the courtroom during the testimony of several of these CIA witnesses: ten called by the prosecution, and seven the defense seeks to call.

See Inner City Press filing into the docket on Big Cases Bot, here. Watch this site. The case is US v. Schulte, 17-cr-548 (Crotty).

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