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Feds complain leak lawsuit spurred leaks

A flurry of improper leaks to the media is plaguing a lawsuit the FBI is facing over allegations it illegally leaked private information, the Justice Department complained Thursday.

The government's move to turn the tables came in a suit brought by Florida residents Jill and Scott Kelley, who contend that their privacy was invaded when FBI and Defense Department officials leaked messages from their private email account after Jill Kelley told the FBI that she and high ranking government officials she knew were being stalked online.

The ensuing investigation exposed an extramarital affair then-CIA Director David Petraeus had with his biographer, Paula Broadwell. The disclosure led to Petraeus’s resignation and eventually to his guilty plea earlier this year to a misdemeanor charge he mishandled classified information by storing it at his home and sharing it with Broadwell.

In a court filing early Thursday (posted here), the Justice Department pointed to stories on CNN’s website and in POLITICO detailing aspects of a key FBI agent’s deposition in the case. The motion seeking to limit questioning of FBI officials stopped just short of accusing the Kelleys or their attorneys of the leaks, but argued that the disclosures appeared to be part of an effort to abuse depositions in the case to fish for information on topics that government lawyers believe should be off limits.

“Within days after the parties (both plaintiffs and defendants) designated certain portions of the [FBI Agent Fred] Humphries deposition transcript as ‘CONFIDENTIAL-SUBJECT TO THE PROTECTIVE ORDER’, a redacted copy was provided to the media,” DOJ lawyers wrote. “Defendants do not know who provided this transcript to the media, except they know it was not provided by either defendant FBI or DoD nor their counsel.”

“In July and August, plaintiffs deposed several current and former DoD employees, and information from those depositions was later provided to the press and reported in news articles appearing to cast plaintiffs in a favorable light,” the Justice Department continued. “One [AP] story…purported to describe testimony given by the DoD witnesses at these depositions…It also described the plaintiffs ‘legal strategy,’ including their plans to subpoena journalists.”

The DOJ filing argues that the Kelleys’ attorneys are pursuing an “ulterior motive” by using the depositions to embarrass and harass witnesses and to seek information not related to the only surviving issue in the suit: whether the FBI or Defense Department leaked private information about the Kelleys to the media. Some press accounts after the probe became public suggested Jill Kelley had an affair with Gen. John Allen, something both parties deny.

A lawyer for the Kelleys, Alan Raul, did not respond to a request for comment for this story. However, in comments quoted in the pleadings, another lawyer for the Kelleys argued that the manner in which the FBI carried out the investigation and the timing of when individuals received the Kelleys’ personal information was relevant to who may have leaked their personal information and why.

“I’m being met with obstruction,” Kelley lawyer Guy Neal declared at a deposition last month after government lawyer Lisa Marcus set forth a series of objections and repeatedly instructed FBI Agent Adam Malone not to answer certain questions.

At a hearing in the case last week, Judge Amy Berman Jackson criticized “an unbelievable waste of time by both sides” during an earlier deposition. “I hope it’s not representative of depositions in this case,” she said.

Last month, Jackson also dressed down the Kelleys’ legal team for publicly filing a list of nine journalists or former journalists subpoenaed in the case.

The latest government motion asks to limit discovery requests and depositions of FBI personnel to “facts sufficient to show disclosure(s) to the media by one or more FBI employees in a manner violating the Privacy Act.”

Jackson issued an order late Thursday afternoon giving the Kelleys’ legal team until next week to respond the government’s filing.

