MANHATTAN (CN) – The suspected source of the biggest disclosure of CIA files in agency history, accused WikiLeaker Joshua Schulte has had an unusual case for a number of reasons. His defense attorney complained in court Wednesday that the agency’s intense secrecy has led to a first in her decades-long career.
“I don’t think I’ve ever tried a case without visiting the quote-unquote ‘scene of the crime,’” said Sabrina Shroff, a seasoned attorney with the Federal Defenders of New York.
That disclosure carried weight because Shroff has represented some of the most high-profile—and the most sensitive—cases in the Southern District of New York.
She previously represented so-called Chelsea bomber Ahmad Rahimi, Fyre Festival fraudster Billy McFarland, and convicted Islamic State recruiter Mohammed El Gammal, among others. Her likewise experienced co-counsel, Edward Zas, also boasts a resume of high-profile cases, as part of the appellate team that exonerated so-called “Cannibal Cop” Gilberto Valle.
Federal prosecutors want to keep Schulte’s legal team out of his old CIA workstation, claiming that its location is classified and no longer exists in the same form as when he left the agency in November 2016.
“‘The scene of the crime’ was more than three years ago,” Assistant U.S. Attorney Matthew Laroche shot back.
“We don’t believe it is relevant,” he added later.
For Schulte’s defense team, the field trip is a matter of fairness. Prosecutors have combed through Schulte’s old office, photographed the area and turned over those pictures to the defense.
“If they can get it, I don’t know why we can’t get in,” Shroff said.
U.S. District Judge Paul Crotty pressed the government on why that principle should not apply.
“Why did you go?” Crotty asked the prosecutor, referring to Schulte’s workspace.
“That was the location where the events occurred,” Laroche replied.
Before Wednesday’s hearing, Schulte’s attorneys argued that the government should declassify 74 recordings between their client and his former CIA colleagues.
“Should it not already be clear, however, these recordings were made by individuals who are or were employed by the CIA and were made after the government had identified (wrongly) Mr. Schulte as the Vault 7 leaker,” Shroff wrote in a 2-page letter on Tuesday, referring to the name WikiLeaks gave to the CIA files that her client is accused of disclosing. They revealed the agency’s abilities to hack Apple and Android cellphones.
“Mr. Schulte did not reach out to these individuals; they reached out to him,” the letter continued. “They (and of course we are not allowed to identify these individuals), not Mr. Schulte, instigated the reach out.” (Parentheses in original.)
Schulte’s team also wants to lift the secrecy surrounding hundreds of the FBI interviews with witnesses, known as 302s.
Prosecutors have leveled 15 charges against Schulte in his most recent indictment, broadly breaking down into allegations of disclosures to WikiLeaks, child pornography and leaks of other secrets during pretrial lockup inside the Metropolitan Correctional Center, or MCC. Authorities found multiple contraband devices – including at least one heavily encrypted cellphone – inside his cell in October 2018 and accused him of transmitting classified information from behind bars months before that.
Earlier this year, the Justice Department agreed to try the WikiLeaks and child-pornography accusations separately, but Schulte’s team now wants a third trial for the incident inside their client’s jail cell.
Zas acknowledged that a trio of federal trials for the same defendant would be an “unusual” situation.
“That’s putting it mildly,” Judge Crotty responded.
All the same, Zas said, Schulte would need new counsel for the jailhouse charges, and for a judge to prevent jurors from using the incident at MCC against him for the more serious WikiLeaks-related charges.
“They’re going to say, ‘This guy can’t follow rules. He has a bad character,’” Zas said, referring to a possible jury prejudice against his client.
That situation would be unavoidable, prosecutor Laroche countered, claiming his team collected evidence from the MCC incident pointing to his guilt to the WikiLeaks disclosures.
“The evidence from prison is clearly admissible,” he added.
Declining to rule on any of the arguments delivered today, Crotty said he would issue a scheduling order imminently laying out the road to trial on Jan. 13, 2020.